NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-24585
George S. Roukis, Referee
(S. L. Kramer
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of 13nployee that:
·A. The Carrier, in violation of the clerk's agreement, Rule 12(d)
improperly bypassed me for extra work in favor of a junior employee, although
I was the senior extra man available for work and not working; and that the denial
of my claim for said period (viz., 80 hours covering vacation on position 53030 at
Austin, Minnesota, September 8, 1980, through September 19, 1980) was arbitrary,
capricious, ad hoc, and without foundation.
B. The Carrier, in violation of the Clerk's agreement, Rule 12(d),improperly
bypassed me for extra work in favor of a junior employee, although I was the
senior extra man available for work and not working; that the denial of my claim for
said period (viz, miscellaneous extra work at Austin, Minnesota, on November 10,
22, 24, 26,27,28 and 29, 1980, covering a total of 44 hours, 30 minutes straight time,
and 11 hours, 20 minutes overtime) was arbitrary, capricious, ad hoc, and without
foundation; and that the Carrier further was in violation of the Clerk's agreement,
Rule 1(e), in that the work referred to in the preceding clause was assigned to a
person not a member of the B.R.A.C. and who did not intend to join the B.R.A.C.,
and that the Carrier was knowledgeable of that fact.
C. As a result of these violations, Carrier shall now reimsburse me for
this lost work in the amount shown on my original claims, plus interest from
the time that payment would have been made had the work in question been properly
assigned.'
OPINION OF BOARD: Claimant has charged Carrier with violating the controlling
Agreement, specifically Rule 12(d) and (e) during the period,
September 8, 1980 thorugh November 29, 1980. Two separate claims were filed on
November 4, 1980 and December 23, 1980, respectively, which were subsequently
joined in an integrated petition. The latter petition was submitted to the Assistant
Vice President of Labor Relations on January 6, 1981.
In defense of his petition, Claimant argues that Carrier violated the
cited provision when it improperly bypassed him for extra work in favor of a
junior employee who was neither more qualified for the extra work assignments nor
a member of the Brotherhood of Railway and Airline Clerks. He asserts that Carrier
was blatantly remiss when it ignored these pertinent factors. Moreover, he
maintains that Carrier's averment that his present claim is procedurally defective
is without substantive merit since Rule 36(b) which Carrier relies on for its
denial is ambiguous. In essence, he contends that it would be procedurally unproducti,
if he had to notify the lower lever appeals official who initially denied his
claim that he was rejecting that decision. In addition, he asserts that since he
filed a notice of intent to file an ex parte submission with this Board, dated
January 4, 1982, his petition is timely and properly before this Division.
Award Number 24694 Page 2
Locket Number MS-24585
Carrier contends that he was unqualified for the Trainmaster's StenoClerk position during the
19, 1980 and thus, it was justified in calling a qualified junior employee to
handle the position. More importantly, it argues that his claim is invalid since
he had not advised the designated appeals official within the sixty (60) day
period required by Rule 36 (b) that he was rejecting this official's denial. It
argues that he again violated this provision ckhen he presented the integrated
claim to the Assistant Vice President of Labor Relations without waiting for the
appropriately designated lower level appeals official to respond to his Lecember
23, 1980 claim. It further maintains that he violated the time limits for progressing
an appeal to this Board, notwithstanding the fact that both the Carrier and the
Brotherhood of Railway and Airline Clerks organization granted him an extention
of thirty (30) days in addition to the required nine (9) months to file an ex
parte submission. It avers that he _had ten (10) months tolling from March 5,
1981 to institute Adjustment Board proceedings.
In considering this case, the Board is compelled to dismiss Claimant's
petition. Rule 36(c) of the applicable collective Agreement mandates that claims
will be barred unless within nine (9) months of the highest designated official's
rejection, the affected employee or his duly authorized representative institutes
Board proceedings. Claimant was granted an additional thirty (30) days from
March 5, 1981 to file his appeal. His appeals limitation ran to January 5, 1982.
Certainly one could not argue that he was not provided ample time to comply with
this requirement or that he was unmindful of this constraint. He was obligated to
institute proceedings by January 5, 1982. Since this Board did not receive his
submission until February 3, 1982, which was well beyond the deadline date, the
Board must dismiss his petition. We would,do violence to the appellate process
in this industry if we disregarded our procedural standards and decided each
exception to the required time limits de novo. It would be contrary to the
manifest intent of the Railway Labor Act and it would wreck havoc upon the industry's
industrial relations system. Claimant was actually afforded ten (10) months
within which to institute proceedings properly with this Board and he failed to
do so. His letter dated January 4, 1982 expressing an intent to file a submission
does not technically de facto change his untimely appeals and we cannot by judicial
determination rectify his inaction. We will dismiss the claim.
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 claim is barred.
TFT
Award Number 24694 Page 3
Claim dismissed.
NATIONAL RAILROAD ALVUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ve~ Executive Secretary
Dated at Chicago, Illinois this 24th day of February, 1984
