NATIONAL RAILROAD ADJUSTMENT BOARD
- THIRD-DIVISION Docket Number MS-211275
George S. Roukis, Referee
PARTIES TO DISPUTE:
Norfolk and Western Railway Company
STATEMENT OF CLAIM: "Please consider this letter as my customary 30-day notice
of my intent to file within 30 days my Ex-parte submission
with the National Railroad Adjustment Board, Third Division, concerning an
unadjusted
dispute
between the Norfolk and Western Railway and myself.
The facts in this claim are as follows. On March 3, 1980 Clerk J. K.
Daniels exercised displacement
rights
on a clerical position held by junior
employee G.
H.
Keplinger in the office of Division Assistant Superintendent,
D. L. Estep. Clerk Daniels was denied rights of displacement to this position,
and then made a second displacement under the same date and displaced Chief Clerk
to the Assistant Superintendent Terminal R. T. Lemaster. Lemaster in turn
displaced Chief Clerk to the Division Engineer-Maintenance D. W. Ratcliff. This
granting of a second displacement of Clerk Daniels, without first giving him
his right to a qualifying period of forty (1+0) days under Rule 10 of the current
Master Agreement; and it is my position that this move on the part of the
Carrier to make this second displacement was illegal.
,-.
Please accept this claim in my behalf to be effective April 3, 1980
and to run continuous for each day (Monday thru Friday) for eight hours per day,
five days per week at the monthly rate of $1682.1+5 to include any and all future
adjustments, any and all overtime worked by Chief Clerk R. T. Lemaster Monday
thru Friday, Saturday and Sunday at the time and one-half rate of $1682.1+5, also
to include any and all adjustments."
OPINION OF BOARD: In reviewing this dispute, we concur with Carrier's
position that the claim before us is materially different
from the claim handled on the property. We cannot agree with Claimant's defensive
averment that it is essentially
de minims
in nature.
His rearticnlation of
the original claim filed represents a substantive, not nuancial modification and
is de facto
a new claim. This amended claim was not handled on the property in
accordance with the parties Iprescribed grievance appeals procedures and as such,
we are precluded by
the
mandatory language
of Circular Bo. 1 of opus Rules
from considering it. This Rule requires:
"No petition shall be considered by any Division of the
Board unless the subject matter has been handled in accordance
with the provisions of the Railway Labor Act, approved June
21, 1935."
It is in accordance with Section 3, First (i) of the Railway Labor Act, as
amended, which reads, in part, as follows:
Award Number
24470
Page
2
Docket Number
MS-24275
"(i) The disputes shall be handled in the usual
manner up
to
and
including the
chief operating officer of the Carrier
designated to handle such disputes."
Moreover, the decisional law of this question affirms our determination. In
Third Division Award No.
15384,
which conceptually parallels this case, we stated
in pertinent part that:
"It is also clear that the claim presented to the Board is not
the same claim that was handled on the property. In fact, the
claim was amended after its submission to the Board. We have
consistently held
that where there is a substantial variance
between the claim handled on the property, and that presented to
the Board, we cannot resolve the dispute. Since this claim was
not handled in the usual manner as required by Section
3,
First
(i) of the Railway Labor Act, the claim must be dismissed."
(See also Third Division Awards Nos.
14258, 13235, 12554,
11212, 11346, 11910, 12352
and
13659
among others.)
The instant modified claim was not handled on the property pursuant to the
Agreement's applicable procedures and we must dismiss it.
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 ovea-the
dispute involved herein; and
That the claim is barred.
R~ y E I VE D
` +_
A W A R D
SLP 71'."'~
Claim dismissed.
C~ZCo
~` '
Office
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Third Division ' "'
Attest: Acting Executive Secretary
atonal Railroad Adjustment Board
B
-:~ ~ i
1-7
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 14th day of July
1983.