NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-25108
Martin F. Scheinman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Escanaba and Lake Superior Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed to recall
furloughed Trackman B. Anderson on and subsequent to May 18, 1981 (System File
ELS-2106).
(2) The claim as presented by Assistant General Chairman F. M. Larson
on July 3, 1981 to Director Field Operatons W. F. Drusch shall be allowed as
presented because said claim was not disallowed by Director Field Operations W.
F. Drusch in accordance with Rule 52(a).
(3) As a consequence of either or both (1) and/or (2) above, the
claimant
.be allowed pay-for all time worked by junior employe
Allen Ashley, claim to continue until mr. Anderson is
allowed to return to service or until said position
is placed on bulletin and awarded to the senior qualified applicant as provided by Rule 52(d), of th
January 1, 1975 Agreement.·
OPINION OF BOARD: On or about May 18, 1981 Carrier hired A. Ashley to fill
a vacant Trackman's position on the section crew headquartered
at Ontonagon, Michigan. At that time, Claimant, B. Anderson, held seniority as
a Trackman and was available to perform the job filled by A. Ashley.
As a result of Carrier's action, the Organization filed this claim.
In it, the Organization contended that Carrier violated Rule 13 of the Agreement
when it failed to award the position at issue to Claimant, since he was senior
to the employe hired to fill that post. Subsequent to the Organization's submission,
the matter was docketed for appeal to this Board.
Time limits for filing ex parte submissions were extended to July 13,
1983. However, while the Organization's submission was timely received, Carrier's
was not. It was received on July 19, 1983 and postmarked July 15, 1983. In
addition, a request for an
extension to
file the ex parte submission was received
on July 19, 1983 and postmarked July 18, 1983. It is clear, then, that
neither
Carrier's ex parte submission nor its request for an extension to file same was
timely received by this Board. Under these circumstnaces, we have no choice
but to sustain the claim and to remind the parties that the Railway Labor Act
requires strict adherence to the time limits set forth
therein.
Award Number 25122 Page 2
Docket Number MW-25108
However, we do note that Carriers rebuttal, which was timely filed,
specifies that the junior employe worked until June 5, 1981. Thus, the claim
will be allowed as presented except that a review of Carrier's records will
determine any cut off date. Accordingly, the claim is sustained to this
extent.
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.
Claim sustained in accordance with the opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:~l/
~x
' Nancy J/ver - Executive Secretary
Dated at Chicago, Illinois this 9th day of November 1984.