NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-24158
Herbert Fishgold, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Winnipeg and Pacific Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
compensate the laborers assigned to the Tie Gang (Payroll Number 38200) for work
performed in going to and/or from their work location and assembly point prior to,
following and continuous with their regular assigned work period.
(2) General Manager J. F. Corcoran failed to disallow the claim (appealed
to him in a letter dated August 21, 1980) in accordance with Sections (a) and (c)
of Agreement Rule 21.
(3) As a consequence of either or both (1) and/or (2) above, the claim*
shall be allowed as presented.
*The claim, as presented, will be reproduced within our initial submission."
OPINION OF BOARD: This dispute concerns the overtime claims of laborers assigned
to the Tie Gang for work performed in going to and/or from
their work location and assembly point prior to, following and continuous with
their regular assigned work period.
As in Award 25091, the Petitioner raises a threshold procedural issue.
The Organization argues that the authorized officer of the Carrier failed to timely
respond in Step III of the Grievance procedure in violation of Rule 21 of the
Agreement derived from the 1954 National Agreement, provides as follows:
Rule 21.
"(a) All claims or grievances must be presented in writing by or on
behalf of the employes involved, to the Officer of the Carrier authorized
to receive same, within sixty (60) days from the date of the occurrence
on which the claim or grievance is based. Should any such claim or
grievance be disallowed the Carrier shall, within sixty (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.
(b) If a disallowed claim or grievance is to be appealed, such appeal
must be in writing and must be taken within sixty (60) days from receipt
of notice of disallowance, and the representative of the Carrier shall
Award Number 25093 Page 2
Docket Number MW-24158
be notified in writing within that time of the rejection of his decision.
Failing to comply with this provision the matter shall be considered
closed, but this shall not be considered as a precedent or waiver of the
employees as to other similar claims or grievances. It is understood,
however, that the parties may, by agreement at any stage of the handling
of the claim or grievance on the property, extend the sixty (60) day
period for either a decision or appeal, up to and including the highest
officer of the Carrier designated for that purpose.
(c) The requirements outlined in Clauses (a) and (b), pertaining to
appeal by the employee and decision by the Carrier, shall govern in
appeals taken to each succeeding Officer, except in cases of appeal
from the decision of the highest Officer designated by the Carrier to
handle such disputes. All claims or grievances involved in a decision
by the highest designated Officer shall be barred unless within nine
(9) months from the date of said Officer's decision proceedings are
instituted by the employee or his duly authorized representative before
the appropriate division of the National Railroad Adjustment Board or a
system, group or regional board of adjustment that has been agreed to
by the parties hereto as provided in Section 3 Second of the Railway
Labor Act. It is understood, however, that the parties may by agreement
in any particular case extend the nine (9) months' period herein referred
to.
11
The record indicates that the claim herein was timely presented to the
Roadmaster and the Chief Engineer. Finally, on August 21, 1980 the Step III appeal
was made to the General Manager. The Carrier's response at Step III was from
R. A. Olson, Labor Relations and Personnel Officer. By letters dated April 26
and May 15, 1981, the Organization wrote to the General Manager specifying that
there has been a default by Carrier in that Mr. Olson had responded to the Step III
appeal rather than the General Manager, Carrier's highest appeal officer.
This Board, with this Referee sitting, in Award 25091, after reviewing
Award 23943 and the contract arguments and facts in Award 25091, concluded that
the opinion reached in Award 23943 was correct, and that Carrier erred in
permitting Mr. Olson to respond to the Step III appeal rather than the General
Manager to whom they had been addressed. Therefore, it is apparent that the
Carrier violated the Agreement. Under the circumstances, we cannot reach the
merits in this dispute.
Continuity in the interpretation of contract rules is highly desirable,
and such interpretations should not be overruled without strong and compelling
reasons. There is nothing presented in the consideration of the instant decision
which in any meaningful way can serve to distinguish the rationale of the decision
in this dispute from that in Award 23943 since it involves interpretation of contract
language. The parties are the same, the agreement is the same, and the facts are
virtually identical. Accordingly, we conclude that the opinion reached in Award
23943 is hereby confirmed.
Award Number 25093 Page 3
Docket Number MW-24158
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 RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of October, 1984.