NATIONAL RAILROAD ADJUSTMENT
THIRD DIVISION
George E. Larney, Referee
PARTIES TO DISPUTE:
Award Number 23920
Docket Number CL-23229
(Brotherhood
Freight Handlers, Express and Station Employee
Pacific Fruit Express Company
a£ Railway, Airline and Steamship Clerks,
STATEMENT OF CIA: Claim of the Committee of
Brotherhood (GL-.8991)
(a) The Pacific Fruit Express Company violated Rule 23 of the Clerks'
Agreement when it failed to notify Mr. H. R. Sloan within 60 days from the
date he filed his claim that such claim was disallowed.
fib) The Pacific Fruit Express Company shall now be required to
allow Mr. H. R. Sloan eight
(8)
hours compensation per day at the current
Clark Repairman hourly rate beginning April
16, 1978,
and continuing thereafter
until allowed to work the position from which displaced effective that date;
and, in addition, he shall be paid the sum o£ ten thousand dollars ($10,000.00)
severance allowance as requested in the original claim.
OPINION OF BOARD: Effective April
16, 1978,
Mr. R. R. Gorman vacated the
. position of District Agent at New Orleans end displaced
employe R. R. Ghrishold who in turn displaced the Claimant, Mr. H. R. Sloan
holding the position of Clerk Repairman. Subsequently, Claimant, in a letter
dated June 2,
19?8,
directed to Mr. T» D. Welsh, Carrier's Manager of Personnel
and its highest designated officer to receive claims an appeal, related his
objections relative to his displacement and set forth the remedy which
hereinabove appears in the Statement a£ Claim's Section of this Award. The
record evidences reflects that Claimant provided copies of this June 2,
1978
letter to appropriate representatives of the Organization. As a result,
General Chairman J. H. Groskapf by letter dated June
7, 1978,
apprised the
Claimant that any claims or grievances had to be submitted in accordance with
the applicable provisions of the Railway Labor Act, advising that if his claim
was to be given any consideration he needed to first submit the claim to the
Gamier officer designated to receive claims at the initial level of handling.
Gxoskopf informed Claimant this Carrier Officer was the District Agent at
New Orleans. Graskap£ further apprised Claimant he was obligated to timely
file his grievance in accordance with the time limit provisions of Rule 23
of the controlling Agreement bearing effective date of June 1,
1965
as revised
and reprinted dune 1,
1973.
Claimant, having personal knowledge there was no incumbent filling
the District Agent's position at New Orleans as the last person to hold the
position was employs R. R. Gorman who started the chain of displacements which
resulted in his being displaced, and allegedly acting on advice related to him
by General Chairman John R. Jenkins, filed his claim with J. E. Roberson, the
General Agent at Houston. The record evidence indicates that Roberson as General
Agent in Houston was the Carrier's designated officer at the intermediate level
to receive claims on appeal. Claimant filed the subject grievance with
Award Number 23920 Page 2
Docket Number CL-23229
Roberson in a letter dated June
9, 1978
and received in Roberson's office on
June
13, 1978.
Thereafter, Claimant heard nothing from Roberson until he
received a letter from him dated September 1,
1978,
in which Roberson
formally rejected the claim.
In the meantime, Claimant received a letter from Walsh dated June
13, 1978,
in which Walsh acknowledged receipt of Claimant's June 2nd letter on
June
7, 1978.
Walsh apprised Claimant the files relative to the details of
the displacements complained of were not available in San Francisco but that he
had written requesting them. The gist of this letter was that Walsh would have
to wait on these files and other documentation before addressing the alleged
impropriety of the displacements. Moreover, Walsh indicated to Claimant that
whether or not his displacement was proper, it nonetheless was totally unrelated
to the then recently negotiated Agreement covering the split-off~of the Pacific
Fruit Express Company. Walsh indicated to Claimant that when the requested
documentation became available and a determination made as to whether or not
the Controlling Agreement had been observed, he would be advised further as
appropriate. The Carrier alleges that between the dates Walsh received
Claimant's letter on the 7th of June and June 13th wizen he wrote the Claimant,
Walsh had a telephone conversation with a representative of the Organization,
not identified in the record, in which he apprised .the representative that
Claimant should handle the grievance through proper and usual channels.
Prior to his receipt of Roberson's denial letter dated September 1,
1978,
Claimant in a letter to General Chairman Jenkins dated August 28,
1978 ,
apprised Jenkins he had yet to be advised by Carrier as to the status of his
claim. In response, Jenkins, in a letter to Roberson dated September 1,
1978,
apprised Roberson the subject claim had not beer: acted on by him as
representative of the Carrier and therefore requested the claim now be honored
as presented in accordance with the pertinent part of Rule 23(c)l, which reads
as follows
"l . ... Should any such claim or grievance be disallowed,
the Carrier shall, within 60 days from the date same is
filed, notify whoever filed the claim or grievance (the
employe or his representative) in writing of the reasons
for such disallowance. If not so notified, the claim or
grievance shall be allowed as presented, but this shall
not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or
grievances."
Apparently, Jenkins at the time of writing this letter was unaware
Roberson had, on the very same date of September 1,
1978,
issued a formal
denial rejecting the subject claim. Thus, in another letter to Roberson dated
September 11,
1978,
Jenkins refuted Roberson's basis for denial arguing that
since Gorman had vacated the position of District Agent at New Orleans there
was no one to receive the subject claim at the local level heretofore specified
by Carrier as the designated officer to handle initial claims. Jenkins noted
further that it was not until July 20,
1978,
nearly forty (40) days following
the filing of this subject claim that Carrier had established its new designa-
Award Number 23920 Page
3
Docket Number CL-23229
tion of Agent clerk at New Orleans as the officer to receive initial claims and
grievances filed at the local level and formally made this known to the
organization. Jenkins argued that under these circumstances, the subject claim
had properly been filed with him (Roberson) as General Agent in Houston.
Furthermore, Jenkins took issue with Roberson relative to the Claim's
meritoriousness, arguing that it was the Organization's position the claim did
have merit as Claimant's displacement arose as a result of a violation of
Rule 9(E) of the Controlling Agreement. Jenkins then reiterated the Organization's
request to have the claim paid as presented based on the fact Carrier had
untimely denied the claim.
Roberson responded to Jenkins by letter dated September
26,
1978, in
which he insisted that Claimant had been advised by Carrier and Organization
spokesmen alike that he should file the claim locally with the Carrier's
designated officer at the local level, to wit, the District Agent at New
Orleans. In not having followed this advice, Roberson asserted, Claimant
wrongly filed the subject claim with him at the intermediate appeal level,
thereby presenting the claim improperly. Roberson then went on to reaffirm
his denial of the claim both on procedural and substantive grounds. The claim
was next appealed to Walsh, who in turn denied the claim on the same basis as
did Roberson and as a result is now on appeal before the Board.
The Organization's position is simple and straightforward, wherein it
argues, Carrier failed to deny the subject claim on a timely basis and therefore is contractually obligated to pay the claim as presented in accordance
with Rule
23(c)l
of the Controlling Agreement cited hereinabove. In support
of its position, the Organization cites decisions of the National Disputes
Committee, empowered to rule on violations of Article V of the August 21,
1954
Agreement, wherein it asserts the various decisions issued by the Committee,
but particularly NDC Decision 16, uphold the contractual obligation on
Carriers to timely deny claims and where they do not, the claims are payable
as presented. As further support of its position, the Organization cites a
myriad of Third Division Awards, sixteen (16) in total, but seizes on several
as being particularly on point with the instant case. Most relevant is Award
21900, wherein the Board held the following:
"It may very well be that the Employes were dilatory in
their assertions and that they addressed them to the
wrong official. Similarly, we concur with the Carrier's
assertion that Employes could submit obviously frivolous
claims. But, we are inclined to determine that the Carrier
can protect itself from such circumstances by the simple
expedient of responding to the claim and setting forth its
defenses therein. Were we to rule to the contrary we would
allow the Carrier to make the determination as to what is or
is not a claim which is worthy of presentation here, and in
essence, we would permit the Carrier to usurp the function
of this Board. In order to protect against such a result,
we are inclined to reaffirm this Board's determinations in
Awards
16564,
19422 and 20900, among others."
Award Number 23920 Page 4
Docket Number CL-23229
in Award
16564,
the Board held the following:
"Rule 21 of the confronting Agreement, which is a reproduction of Section V, 1(a) of the National Agreement of
August 21,
1954,
contractually obligates a Carrier to
disallow a 'claim or grievance' within
60
days of its
filing, giving its reasons for disallowance in writing,
under pain of allowance 'as presented' if those procedural
requirements are not complied with. There are no
exceptions. A Carrier may not disregard a filed claim because
it, in the Carrier's opinion, is: (1) without merit; (2) is
not supported by the Rules Agreement; or
(3)
is not a dispute
within the contemplation of the Railway Labor Act. Carrier's
obligation to deny any claim filed within
60
days of filing,
giving its reasons for disallowance in writing, is, by
application of Rule 21, absolute. Since, Carrier failed in
this contractual obligation we are compelled, by Rule 21,
to sustain the instant claim as presented."
The Carrier defends its position on several grounds, but the thrust
of its major argument is that, by Claimant's not filing the subject claim with
the properly designated Carrier officer at the initial level of handling and
thereafter Claimant's failure to rectify his mistake to so file properly even
when counseled by it and Organization representatives to do so, such action
itself constitutes a violation of Article 23(c)1 of the Controlling Agreement.
In support of its position, Carrier cites that portion of Article
23(c)1
which
reads as follows:
"All claims or grievances must be presented in writing by or
on behalf of the employe involved, to the officer of the
Carrier authorized to receive same, within
60
days from the
date of the occurrence on which the claim or grievance is
based.
·"
Carrier argues vigorously that at the time Claimant issued his claim,
the designated officer to receive same was the District Agent at New Orleans
and not the General Agent at Houston. Carrier argues the subject claim is
therefore contractually barred from being considered by the Board because of
Claimant's insistence on ignoring the proper procedures of filing the claim
despite being instructed to file same with the District Agent at New Orleans.
Such action by Claimant, contends Carrier, constitutes a procedural flaw fatal
to the Organization's position. Furthermore, Carrier argues that in addition
to the contractual violation committed by Claimant, filing of the subject claim
in the manner it was filed is contrary to Section
3,
First (i) of the Railway
Labor Act, as amended which requires that as a condition precedent to an appeal
before this Board, the dispute must be handled on the property, "in the usual
manner
up
to and including the chief operating officer of the Carrier designated
to handle such disputes." Carrier charges, Claimant failed to handle the
dispute in the usual manner when he chose to flout all advice and simply ignored
the requirement of having to file the claim first with the District Agent at
New Orleans. Carrier notes for the record, the subject claim has yet to be
filed at this initial level.
Award Number 23920 Page 5
Docket Number CL-23229
In further support of its position, Carrier cites several Third
Division Awards, but mast particularly relies on Award 20977 wherein the Board
held the following:
"Moreover, assuming arguendo that the time slips constituted
proper claims, the further objection is raised that such
claims were not presented to the Carrier Officer designated
for such purpose and as specifically provided in Supplement
D, subdivision 1(a) of the Agreement. The record
conclusively establishes that the claims
...
were filed
with the Freight Agent and not with the Terminal Trainmaster. This did not constitute proper filing."
In these circuomstances, we have held in innu
mierable prior Awards that
such improper filing is jurisdictionally defective. Thus, in Award 15334
(House) we said:
"There can be no dispute that by application of Article V,
1(a) a claim, as the instant one, is barred if the same
had not been presented in writing to the proper officer of
the Carrier .and such objection is timely raised during the
handling on the property.
Upon the record before us we find no evidence that
Petitioner presented claim initially to the proper
officer of Carrier and in the absence of such proof the
claim is barred. We are compelled to dismiss the claim."
Also in Award 20035, the Board held:
"The claim was not first presented to the officer
designated to receive claims in the time allowed,
was it appealed as prescribed in Rule 61-1(a), (b) and
(c). (Award 15183). (Also First Division Award 21123).
Accordingly, and without reaching any other issue, we
must find that the claim here asserted is barred because
of Claimant's failure to present it to the officer of the
Carrier authorized to receive same; and that it must,
therefore, be dismissed."
Carrier argued vigorously claim in first instance, was not properly
filed and therefore it had no obligation to respond. The Organization on the
other hand specifies there is only one issue before the Board, to wit, the
procedural question as to whether or not Carrier is contractually bound to
honor the claim as filed because of an alleged untimely response in denying
the claim. We believe this to be a most troublesome case because of the unusual
and to some extent peculiar prevailing circumstances. We acknowledge, as does
the Organization, that Claimant misfiled the claim initially when he directed
his grievance to Walsh. Thereafter, the record is sufficiently unclear as to
what measures Carrier actually did take to notify both the Claimant and
Organization as to how the claim should be handled at a time when the District
Award Number 23920 Page
6
Docket Number CL-23229
Agent's position at New Orleans was vacated and Carrier had not yet designated
the Agent Clerk as its officer to receive initial claims at the local level.
If such advice was in fact transmitted by the Carrier, we are at a loss to
determine why this was not formally communicated to the Claimant and/or
Organization in writing. We are equally at a loss as
to how Carrier would
expect the Organization to file a claim beginning at the local levels when
the Organization was fully aware the position of District Agent had been vacated and thus knew there was no one there
at New Orleans to
handle
the claim.
The record evidence on the other hand indicates the Organization
endeavored to discover the identity of the proper Carrier official to whom the
subject claims should first be directed and was motivated to do so because it
knew the incumbent District Agent was no longer in that position and Carrier
had yet to specify a replacement as its designated officer to handle initial
claims. Under these circumstances, the Organization was stymied in its effort
to comply with either its contractual obligations as spelled out in Rule 23(c)1
or its statutory obligations under Section
3,
First (i), to progress the
dispute in the "usual manner" on the property. This "usual manner" was
substantially altered when the District Agent's position at New Orleans was
vacated and when during an approximate interior period of forty (4O) days, the
Carrier failed to formally redesignate one of its officers at that location
to handle initial claims as they arose.
Based on the foregoing observations it is our judgment Carrier had
the burden to make clear and in writing to both the Claimant and Organization
as to where the claim should be filed in the absence of an incumbent District
Agent, at New Orleans. It appears obvious to us, that in Carrier's failing to
so do, confusion reigned on both the Claimant's part and the Organization's
part as to where the initial filing should be made. As a direct result of not
putting such advice in writing, the Organization apparently seems to have been
mislead into believing it should refile the claim with the General Agent in
Houston.
For his part, the General Agent in Houston,~knowing too there was no
designated officer residing at the time in New Orleans to handle claims at the
initial level, had an obligation, irrespective of his
judgment the
claim should
not have been filed with him, to put in writing the claim had been misfiled,
thereby informing Claimant and the Organization of this fact. If for no other
reason, the General Agent should have taken such action to protect the Carrier.
By the time the General Agent did respond, it was, as the Organization so
alleges, in excess of the sixty (6O) days set forth in Rule
23(c)1
of the
Controlling Agreement.
We find Carrier erred in not issuing a timely
denial.
In reaffirming
what we said in Award 21900, we hold the claim as
presented, irrespective of its
regrettable flaws as stated,,
must nor be contracually honored by the Carrier.
Award Number 23920 Page
Docket Number
CL-232`29
Carrier is directed to pay all liabilities stated in the claim.
Relative to this order we note Carrier's liability for eight
(8)
hours
compensation per day at the then prevailing current hourly rate for Clerk
Repairman ended as of September 1,
197$,
when Carrier issued its denial of the
claim. We also wish to note that in sustaining the claim, such Award is not
meant to serve as having any precedential force in cases which have arisen
subsequent to this case and prior to this Award or in cases arising post this
Award.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes 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 RAIIROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
Rosemarie Braseh - Administrative Assistant
Dated at Chicago, Illinois, this Nth day of June
1982.
Serial No. 312
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
nMRPRETATION NO. 1 TO AWARD HO. 23920
DOCZET NO. CL-2=9
NAM OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and
Station
Employes
NAME OF CARRIER: Pacific
Fruit Express Company
Upon application of the Carrier involved in the above Award that this
Division
interpret the same in the light of the dispute between the parties as
to
its
meaning and application, as provided for in Section
3,
First (m) of the
Railway Labor Act, as approved Junee 21,
1934,
the following determination is
accordingly issued as set forth hereinbelow:
In our review of Carrier's application for an interpretation we judge
said application to represent, in whole, an attempt to reopen and reargue the
merits of the dispute. Further, it is our judgment that Carrier is additionally
requesting a review of the correctness of the Award by questioning the basis for
same and seeking a determination that it has already complied with the Award on
the grounds of having met what it believes to constitute the proper definition of
"allowing the claim. as presented".
We note emphatically the well-established and well-settled principle
that the pose of an interpretation is to explain and clarify the Award as
originally made, but not, under any circumstances, to make
a new
Award. We
find that the Award as originally issued and the attendant reasoning underlying
the Award is clear and unambiguous.
We further find that it is not within our jurisdiction to consider
Carrier's position that it has already complied with the Award. Clearly, in not
paying to the Claimant the $10,000 sum set forth in that Award, the Carrier
has not met compliance.
Finally, we reiterate and remind the Carrier that the original Award
held that it violated the Agreement.
Referee George E. Larney, who sat with the Division as the Neutral
member when Award No. 239220 was adopted, also participated with the Division in
making this interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Boa
By ..yd~-~ ,_ _
Rosemarie Braseh - Administrative Assistant
Dated at Chicago, Illinois, this 2Tth day of April 1983.