PARTIES TO DISPUTE

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The five (5) day suspension imposed upon Assistant Foreman M. Diaz, Laborer C. E. Meeks and Welder Helper D. G. Brae was without dust and sufficient cause and wholly disproportionate to such a charge (System File C#2/D-22112-1)..

 (2) The claim as presented by General Chairman Mpbry on January 10, 1979 to Assistant Division Manager E. E. Howard shall be allowed as presented because s:id claim was not disallowed by Assistant Division Manager E. E. Howard in accordance with Rule 47(a).



OPINION OF BOARD: The Claimant was suspended from service for five (5)
 days because of an alleged Safety Rule violation; which
 suspension was upheld on appeal. Ultimately a claim ". . for unjust discipline"
 was processed and Rule 47 requires a disallowance, in writing, within sixty
 (60) days.

 The 60 day mandate, referred to above, was not met; however the Carrier insists that the claim itself, in addition to being vague, was not submitted in a timely manner. Be that as it may, as we read the Rule it was incumbent upon the Carrier to raise that defense, dust as it would any other defense, within the contractually required time period and it may not merely ignore the Rule and then raise its own timeliness question in this fashion.



That the Carrier and the Employes involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                            NATIONAL RAIIR44D ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 13th day of May, 1982.

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                CARRIER MEMBERS' DISSENT

                TO

                AWARD 23883.(DOCxEr 23381)

                Joseph . Sickles


The Majority was clearly in error when they decided Award 23883 based upon a procedural defense raised by the Organization. The Majority sustained the claim because the Carrier did not deny the claim within the
 sixty (60) days time limit of Rule 47. This award declared, the Carrier could not rely upon the Organization's own initial end fatal defect of not timely filing the claim, as a defense to defeat the claim. Such reasoning is en egregious error In this Award the Organization failed to timely file its claim, that is, within the sixty (60) days ties limit. The Carrier raised this procedural defense and argued there was no need to respond to the Organization's defective claim. The Majority 47 need not apply equally to both the Carrier end the Organization. Thereby violating a wellestablished principle of t a timely and proper claim before the burden of the time limit provisions of
 Rule 47 would apply to the Carrier. (See Awards 9684, 15631).
 The Majority incorrectly stated that Rule 47 required s disallowance of the claim (denial) by the Carrier within sixty (60) days. The Carrier had no obligation to respond to the Organization's procedurally defective claim.

      In Award 10603 the Hoard stated:


        "If the Organization's claim was not filed within the time limit provided in Article V of the August 21, 1954 Agreement, then it does not matter whether the Carrier's declination was within the time limits.

                                          CARRIFI? MEMBERS DISSENT

                                - 2 - TO AWARD 23883, DOCKET 23381


                  "In Award 9684 (Elkouri) we held that since the claim was not properly filed in the first instance we did not need to consider whether the Carrier dis-allowed the claim within 60 days from the date it was filed. We misty therefore, consider whether the claim was filed in time."

          The Majority should have followed the reasoning in Award 10603, end dismissed the claim without ever reaching the issue of the Carrier's alleged procedural error. As no valid claim existed Ab Initio because of the defective nature of the Organization's claim, the Carrier had no need to assert any


j, 1affirmative defense of its own. The Hoard in Award 16164 (Miller), quoted

          with approval from Award 10532 as follows:


                  "The claim in this case was first presented on March 5, 1955, which was in excess of 60 days after January 1, 1955. There-is no dispute in regard to the late filing of the claim. The Claimant contends that the Carrier failed to raise the question that the claim was not filed within the 60 days on the property and by so doing waived this defense...


                  This is a case under en Agreement that requires the filing of the claim within the specific time. There was no claim here because it was not filed within the time required, end there being no claim, it was not necessary to deny same within the 60 day period."

          In Award 15631 the Carrier did not give a reason for the declination of the Organization's claim as required by the Agreement. However, the Board coacl uded that the Carrier's procedural error was irrelevant as the Organization's claim was improper and defective from the outset.


                  "We further state that since no valid claim existed ab initio, the fact that the Carrier failed to give s reason for declining the Claim is of no consequence. Since the claim was invalid in the beginning, we have no right to consider Carrier's later procedural error, nor do we have a right to consider the merits of the case. We w311 dismiss the claim."

                                CARRIER MEMBERS DISSENT

                        - 3 - To AWARD 23883 Doctor 23381


The Majority, in the instant award, should have applied the lucid logic quoted above and likewise dismissed the claim.
 The previously cited awards are only representative of the plethora of awards which follow the long standing rule, which was so flippantly regarded by the Majority in t
    Therefore we dissect.


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