"Positions or work within Rule A-1 -- Scone shall not be removed from the application of the rules of the Schedule Agreement, as amended, exrept by the concurrence of the General Chairman and the Assistant Vice President of Tahor RoL,ptinns."

It is the Carrier's rant-·ntion: that tFe claims ,are barred ;,v the tim,, provisions of Pole C-'); that the work 1aac not within the rite d Scone Rule: t),at the Fmnloypec !,ad not established that the work was exclusively their's: Char the Fmployee Organization had failed to establish that the Agreement had ')oen violatee in stick manner as to renuire tl·at nenaltv claimed.

On those t!rotinds ·t is neressary to deal with the question of the tire bar before touchin7 rile merits of the claim.

The Emnloyees filed the four claims on September lf,, lci8l for work Performed on tt,e four dates noted above, i.e. July 28, 1941 (2), August F, loHl and August 22, 1081 and all dates of work thereafter. These dates are within sixty (hi)) days of filing the claim and about this there is no dispute. The question to he resolved is whether the Employees tiled a claim within sixty days of the "occurrence of c,+ich Lhe claim is hascd," as providers in Rule C-3, paragraph l(a) au,' relevant to this is whether or not this is a "continuing, claim."

The Carrier notes that the (ntorro·tal tip, rations b,·_an :,t ,acF, tit tl,e tncilitiu:; riany :,,ars ai,o, the most rr~ccnt date or which is Jae,iary 1, 1974.

ilreeuvitle 11/20/0 7torrictown il/20/Ro Cleveland 12/3/80 Knoxville 4/1/81

All these dates are well heyond the Sixty (F,0) ~iav limit wl·en the claim was filed on September 1f,, 1981.

Thus the central issue to he determined is whether this constitutes a "continuing violation," as alleged by the Employees. In this matter the Organization relies upon 1971 Third Division Award 1'o. 185539 where-in the Poard did not bar a claim filed eleven (11) months after the Ceneral Chairman or the F'mployees became aware or the action which was in disrute.

However, the award which dealt with work transferred from dispatchers to telegraphers states, "In the case at bar there is no single event which can he classified as the 'date of the occurrence. on which the claim or grievance is based.' The practice in question is clearly a continuing one ... and not barred by the 60 day limitation."

Award Number 254`325 Page 3

Docket \umher ('.L-24P081

In _this case at bar there is a clearly, distin:;uislinhle series or dat.-s and tferefore Third Division Award \o. IP53Q provi,les no clear precedent support[nl·, the ~.ml loyees' claim.

`loreover the Carrier rofers tl·F~ board to Piihlic Law Foarrl \o. -=971, Award to. 1, a case involving the same parties and the wine issue of a time bar to a claim wherein tlE· Fmployees also cited Award No. 1539. In upholding? tt,t Carrier's position that tl,e assignment of work at the interrodal Facility of the Carrier was not ,a continuing violation the Hoard hell~.

"... tl a circumstances herein in dispute do not constitute a continuing violation but rather a single act - that of contracting out certain work at the intermodal facilitv of Carrier. It is apparent that the Organization shpt on. its rights for almost ten years :rom the time the work was first initiated. There is no question but that the claim is barred under the terms of Rule C-3 I (a) and mist he dismissed." PI.F 1971, Award `:o. 1, F°,AC vs. SCli

based upon thr tindispnted dates of initiating the CRT operation at the interrodal facilities in(; the cl,~ar nrecedt°ets of prior Awards with which, this Board concurs, tl·,· Marc, ntiist concluc", that tl·e .,faint is time barred `v provision of Rul~· C-3 1(.a). Tl,iis the claim tfat th,, Carrier did not violato tle atireement and the four _·nior idle enployo,,s, extra in preference are not t ntitl,-d to tf.e comlwnsatior claimed on rheir h~lalf, is sustained.

r-IN IN
CS: The Third Jivision of the Ac' justmk-nt "oar', after f7iviny the parties
t r. this c!isl>utt glue notice, of I,rariii;· thereon, and upon the whole
record ;ind all th-· vidunce, flnl'S ,1~id holds;

That the Carrier and the I mpLoyes inv_li,(·<I in this !isptite are respectively Carrier and Irplnyes' witl,ir, the rie~ining of the 7tailwav labor Act, as approve! Jun,' 21, 1934;

That this Division of the ~dl~,~ti^ent f._ard ;gas ·iirtsdiction over the dispute involved herein; and

That the Agreement was not viol.at,:d.

A I l .·', n 1)

Claim of the Carrier is iipleld.

N'ATIO':AL RALLRw) ADJI'S1'tENT Ih'1APD w Order of Third Division

AITE ST :

,

10 'ancy ,1 r - txvcutive Secretary

Dated at Chicago, T11inois, this Lath day o· June, 1 ugs

LABOR MEMBER'S DISSENT TO

AWARD N0. 25498,DOCKET N0. CL-24808

(REFEREE GEORGE V. BOYLE)

The Majority has erred in this instance as the Award is contrary to the established precedence set forth on the property in Third Division Award No. 18539 and is based upon inadmissible evidence. Nor can its quotation of a portion of that same Award taken out of context, sustain its lack of logic. That quotation of such, on Pages 2 and 3, ignores the fact that in Award No. 18539, Referee O'Brien was refuting the Carrier's reliance upon several A with a single event, specifically the abolishment of an employe's position. The similarity of Award 18539 and the case at bar is that both involved a continuing violation of the Agreement. Examination of all the correspondence on the property reveals that the Employes clearly stated that their claim began when the Carrier installed CRT Machines in the various intermodal locations for the purpose of transmitting data to the computer and not when the Carrier initiated its various intermodal operations. Thus the Statement Of Claim set forth in this Award is reflective of the initial claims. (Employes Exhibits 14-17; Carrier's Exhibits Al-A4), as being

the following:
H. A. Poore Greenville, TN August 22, 1981
L. R. Trent Morristown, TN August 8, 1981
W. C. Raby Cleveland, TN July 28, 1981
J. H. Carter Knoxville, TN July 28, 1981
the property. See Third Division Awards Nos. 1010, 4079, 8324, 12326, 14994, 16092, 20163, 20166, 20235, 21073, to name just a few.

The Majority based their conclusion upon unproven assertions and inadmissible evidence and thus failed to resolve the question at issue and merely helped to perp grievance. Avoidance of issues through unproven technicalities as has been done in Award No.25498 , is in error.

The case law authority on this issue on the property required a sustaining award . The Majority erred in not so finding. We must, therefore, strenuously Dissent to Award No.25498 , and emphasize that Awards out of the norm have no precedential value.

William R. Miller, Labor Member

Date June 18, 1985

AWARD N0.25498 ,DOCKET CL-24808
CORRECTED

LABOR MEMBER'S DISSENT TO

AWARD NO. 25498,DOCKET NO. CL-24808

(REFEREE GEORGE V. BOYLE)

The Majority has erred in this instance as the Award is contrary to the established precedence set forth on the property in Third Division Award No. 18539 and is based upon inadmissible evidence. Nor can its quotation of a portion of that same Award taken out of context, sustain its lack of logic. That quotation of such, on Pages 2 and 3, ignores the fact that in Award No. 18539, Referee O'Brien was refuting the Carrier's reliance upon several Awards which dealt with a single event, specifically the abolishment of an employe's position. The similarity of Award 18539 and the case at bar is that both involved a continuing violation of the Agreement. Examination of all the correspondence on the property reveals that the Employes clearly stated that their claim began when the Carrier installed CRT Machines in the various intermodal locations for the purpose of transmitting data to the computer and not when the Carrier initiated its various intermodal operations. Thus the Statement Of Claim set forth in this Award is reflective of the initial claims. (Employes Exhibits 14-17; Carrier's Exhibits Al-A4), as being

the following

H. A. Poore Greenville. TN August 22, 1981

L. R. Trent Morristown, TN August 8, 1981

W. C. Raby Cleveland, TN July 28, 1981

J. H. Carter Knoxville, TN July 28, 1981

On the property, the Carrier contended without ever refuting the Employes question at issue, that their Intermodal Operations hadn't changed since being started and it was not until their Rebuttal on Page 2 that they offer alleged dates as to when the CRT Machines were installed. The Majority Opinion seized upon such as being fact rather than merely being a self-serving statement and states the following:

"...But the uncontested dates when the CRT machines were installed were as follows:

Greenville 11/20/80

Morristown 11/20/80

Cleveland 12/3/80

Knoxville 4/1/81

"All of these dates are well beyond the sixty (60) day limit when the claim was filed on September 16, 1981."

By accepting such as being fact rather than an unproven assertion, the Majority is then able to conclude that the claims should have been initiated within sixty (60) days of those dates and not having been done, the Employes have slept on their rights and Award No. 1 of P.L.B. 2971, between the same Parties, is controlling.

That conclusion is based .upon evidence which was inadmissible at this level as it was not set forth on the property. The Board has consistently held that provisions of the Railway Labor Act and Rules of Procedure of the Board (Circular No.l), do not permit either party, on appeal to the Board, to present issues that have not been raised during the handling of the dispute on

-2- AWARD N0. 25498 ,DOCKET CL-24808

the property. See Third Division Awards Nos. 1010, 4079, 8324, 12326, 14994, 16092, 20163, 20166, 20235, 21073, to name just a few.

The Majority based their conclusion upon unproven assertions and inadmissible evidence and thus failed to resolve the question at issue and merely helped to perp grievance. Avoidance of issues through unproven technicalities as has been done in Award No.25498 , is in error.

The case law authority on this issue on the property required a sustaining award. The Majority e We must, therefore, strenuously Dissent to Award No.25498 , and emphasize that Awards out of the norm have no precedential value.

William R. Miller, Labor Member

Date June 18, 1985

-3- AWARD N0.25498 ,DOCKET CL-24808