NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-25531
Robert W. McAllister, Referee
PARTIES TO DISPUTE:
(Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM:
"1. Is claimant entitled to protective pay for January through June
of 1983;
2. Is claimant entitled to compensation for losses due to having to
protect a position in Needles, California while living in Lakewood, California;
3. Is claimant entitled to compensation for travel and/or moving
expenses;
4. Is claimant entitled to compensation for pay loss due to non-use
of Guaranteed Extra Board positions;
5. Is claimant required to follow normal grievance/dispute
procedures."
OPINION OF BOARD: By date of November 4, 1983, the Board was served with
multiple notices of Attorneys Michael D. Hanson's and
Kirk S. Garvin's intention to file Ex Parte Submissions on behalf of Claimant,
Helen M. Dix, and eighty-two (82) other Claimants. On June 10, 1985, Messrs.
Hanson and Garvin appeared at a hearing before the Board with the referee in
attendance. Thirteen (13) cases were chosen by the Claimants' attorneys as
representative of all disputes. The representative cases are Dockets 25531,
25532, 25533, 25536, 25546, 25570, 25573, 25587, 25601, 25604, 25606, 25608,
and 25611.
Although each individual Statement Of Claim contains multiple contentions, each statement has the fo
"Is the Claimant required to follow normal grievance/dispute
procedures."
The Carrier herein responds in the affirmative and argues it has no
record of any claim being filed with it as required by Rule 47 of the applicable Agreement and, acco
the Board. Rule 47, Time Limits on Claims and Grievances, is set forth below:
Award Number 25712 Page 2
Docket Number MS-25531
"47-A. All claims or grievances shall be handled as follows:
(1) All claims or grievances must be presented in writing
by or on behalf of the employee involved, to the
officer of the Carrier authorized to receive same,
within 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 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.
(2) If a disallowed claim or grievance is to be appealed,
such appeal must be in writing and must be taken
within 60 days from receipt of notice of disallowance,
and the representative of the Carrier shall 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 contentions of the employes as to other similar
claims or grievances. It is understood, however, that
the parties may, by agreement, at any stage of the
handling of a claim or grievance on the property,
extend the 60-day period for either a decision or
appeal, up to and including the highest officer of the
Carrier designated for that purpose.
(3) The requirements outlined in paragraphs (1) and (2),
pertaining to appeal by the employe 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 Carrier
to handle such disputes. All claims or grievances
involved in a decision by the highest officer shall be
barred unless within 9 months from the date of said
officer's decision proceedings are instituted by the
employe 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 9-month period herein referred to.
Award Number 25712 Page 3
Docket Number MS-25531
47-B. A claim may be filed at any time for an alleged continuing
violation of any agreement and all rights of the claimant or
claimants involved thereby shall, under Rule 47, be fully
protected by the filing of one claim or grievance based
thereon as long as such alleged violation, if found to be
such, continues. However, no monetary claim shall be allowed
retroactively for more than 60 days prior to the filing
thereof. With respect to claims and grievances involving an
employe held out of service in discipline cases, the original
notice of request for reinstatement with pay for time lost
shall be sufficient.
47-C. Rule 47 recognizes the right of representatives of the
Organization, party hereto, to file and prosecute claims and
grievances for and on behalf of the employes they represent.
47-D. Rule 47 is not intended to deny the right of the employes to
use any other lawful action for the settlement of claims or
grievances provided such action is instituted within 9 months
of the date of the decision of the highest designated officer
of the Carrier.
47-E. Rule 47 shall not apply to requests for leniency."
The Claimants assert that, regardless of the Carrier's contentions
with respect to Rule 47, this Board should find that the issue of timeliness
has been waived by the conduct of the Carrier and/or representatives of the
Organization. Accordingly, leniency is requested. The complained of
Carrier's conduct is bad faith handling which assertedly prejudiced the
Claimants' rights. The Organization is charged with failure to represent the
Claimant and/or refusal to process the grievance. Lastly, the Claimants argue
Rule 47-B states that a claim may be filed at any time for a continuing
violation and avers that one or more of the issues raised herein constitute a
continuing violation of the controlling Agreement.
Notwithstanding the above, it is represented that the Claimants have
at all times attempted to follow precisely the mandates of the Organization's
Agreement along with the appropriate provisions of the Railway Labor Act.
Claimants refer to the numerous submissions and affidavits presented herein
which are viewed as demonstrable proof the Claimants attempted to bring this
matter before Carrier and Organization officials. Further proof is claimed to
be found in the actions of the Claimants' representatives who have attempted
to meet with the Carrier's highest designated officials, and, just one week
prior to the hearing before the Board on September 4, 1984, the Carrier is
alleged to have rebuffed these efforts.
With respect to the insistence this Claim was advanced on the
property, there is no evidence of record which in any manner shows any
Claimant to have taken any steps in accordance with Rule 47 or that any claim
was handled on the property.
Award Number 25712 Page 4
Docket Number MS-25531
The record does establish that one of the eighty-three (83)
Claimants did address a letter to the Carrier's President complaining about a
variety of issues. The President responded and advised that employee that an
ongoing dispute existed between the Carrier and the Organization and that the
Organization had appealed to Special Board of Adjustment No. 605. The record
also contains evidence of correspondence between a Claimant and the Organization General Chairman. N
filing of a claim or grievance. This record simply does not contain any
information which would establish that any Claimant attempted to or, in fact,
presented the Carrier a written claim or grievance prior to coming to this
Board.
The National Railroad Adjustment Board was created as the dispositive appellate body in the prog
first impression. Section 3, First (i) of the Railway Labor Act [45 USC
Section 153, First (i)] states:
"The disputes between an employee or group of employees and a
carrier or carriers growing out of grievances or out of the
interpretation or application of agreements concerning rates of pay,
rules, or working conditions, including cases pending and unadjusted
on June 21, 1934, shall be handled in the usual manner up to and
including the chief operating officer of the carrier designated to
handle such disputes; but, failing to reach an adjustment in this
matter, the disputes may be referred by petition of the parties or
by either party to the appropriate division of the Adjustment Board
with a full statement of the facts and all supporting data bearing
upon the disputes."
Section 3, First (v), [45 USC, Section 153, First (v)] required the
Board to meet within forty (40) days after June 21, 1934, to adopt such rules
as it deemed necessary to control proceedings before the respective divisions.
On October 10, 1934, the Board in compliance issued Circular No. 1 which
provided in pertinent part:
"All data submitted in support of employee's position must
affirmatively show the same to have been presented to the Carrier
and made a part of the particular question in dispute."
Thus, it is evident that any petitioner must comply with the requirement that a dispute will be
will exercise jurisdiction. See supporting Third Division Awards 25130,
25131, 25252, 25298, 25346, 25035, 25077, 25081, and 25085.
This Board reaffirms that Claimants are "required to follow normal
grievance/dispute procedures." Herein, there is no probative evidence to
establish that any Claimant followed the requirements of Rule 47 and filed an
on-the-property claim or grievance. Additionally, no evidence has been
produced which supports the assertion the Carrier and/or the Organization in
any manner thwarted any Claimants' right to utilize the provisions of Rule 47.
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Docket Number MS-25531
The contention that an on-the-property conference had been sought
and was denied by the Carrier ignores the fact that such request was subsequent to the filing of the
to the continuing nature of the claims are moot inasmuch as up to the day of
the Hearing on June 10, 1985, no claim had been presented to the Carrier on
the property. Finally, it is implied the Carrier's intransigence rendered any
on-the-property handling fruitless and futile. This allegation is not
supported by the evidence of record. It is no more than an unsupported
assertion. By assuming that the Carrier would have denied a claim based upon
past experience or belief does not relieve Claimants from resorting to Rule 47.
Lastly, despite our reference to various Claimant's Submissions and
affidavits, we note all were made for the first time in the Submission to this
Board. It is a well settled doctrine that such evidence is "new" and may not
be considered when it is presented to the Board, and it is the very first
instance of its use. See Third Division Awards 21966, 21463, 21411, and 21882
for similar analysis.
In view of the aforegoing analysis, we hold none of the Claims was
handled in the usual manner on the property. The record is lacking in
substantial evidence to support the Claimants' rationale for not following the
Agreement's procedure for grievance handling. Accordingly, none of the
Claimants complied with the requirements of the Railway Labor Act and Board
Circular No. 1. We, therefore, must dismiss the Claims.
FINDINGS; The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and upon
the whole record and all the evidence, finds and holds:
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 this Claim is barred.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. er - Executive Secretary
Dated at Chicago; Illinois, this 27th day of November 1985.