Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26749
THIRD DIVISION Docket No. MS-27582
88-3-87-3-20
The Third Division consisted of the regular members and in
addition Referee Charlotte Gold when award was rendered.
(Jerry H. Clarke
PARTIES TO DISPUTE:
(Atchison, Topeka S Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of Jerry J. Clark (#159) that:
(a) Carrier violated the rules of the current Clerks' Agreement at
Los Angeles, California commencing August 13, 1985 when it failed to properly
respond to a grievance submitted that date, and
(b) Carrier shall now accept grievance as presented, and,
(c) Claimant Jerry J. Clark shall now be compensated $1,202.04 plus
$100.17 each day after August 13, 1985 that Claimant is wrongfully denied
payment of this claim, and
(d) Claimant Jerry J. Clark shall be paid interest payable at the
prevailing prime rate and pay other such damages and awards as may be determined by this Honorable B
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employees involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
On or about January 6, 1987, the Third Division of the National Railroad Adjustment Board was se
Claims on behalf of employee of the Carrier who were employed in the craft
represented by the Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employes (referred to herein as BRAC).
The Claims were filed by John P. Lemkau as Representative of the individual
Claimants.
Form 1 Award No. 26749
Page 2 Docket No. MS-27582
88-3-87-3-20
In each Claim, BRAC was notified by the Board that the Claim had
been filed and that it had the right to file a submission, if it so desired,
as a Third Party In Enterest. In each dispute, BRAC did respond. It took the
position that the disputes were not properly before the Board because the
Claims were not handled on the property by the individual Claimant or the
Claimants' duly authorized bargaining Representative, _i.e., BRAC. The Carrier
has joined with BRAC in requesting that the dispute be dismissed for the same
reason.
In addition, the Carrier argues that if the Board does assert jurisdiction, the Claims should be
issue seriatum.
Initially, the jurisdictional requirement that dispute be handled in
accordance with the provisions of the applicable Collective Bargaining Agreement and the customary p
Section 153, First (i) of the Railway Labor Act which, in pertinent part, provides:
"(i) 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 ...shall be handled in the
usual manner up to and including the chief operating
officer of the carrier designated to handle such disputes;..." (Emphasis added)
In addition, Section 2, Second of the Act provides:
"Second. All disputes between a carrier or carriers,
and its or their employees shall be considered, and,
if possible, decided, with all expedition, in con-
ference between representatives designated and authorized so to confer, respectively, by the
carriers and by the employees thereof interested in
the dispute." (Emphasis added)
The Board has consistently held that failure to hold a conference on the property deprives the B
Awards: 25712, 25298, 25345, 25429, 25801, 25252, 23466.
Rule 47 of the Agreement between the Carrier and BRAC sets forth the
Rules with respect to who can handle employe claims on the property. Thus,
Rule 47-A provides that "All claims or grievances must be presented in writing
by or on behalf of the employe involved" and that the Carrier, if it declines
the Claim or Grievance must "notify whoever filed the Claim or grievance (the
employe or his representative) in writing of the reasons for such disallowance." (Emph
Form 1 Award No. 26749
Page 3 Docket No. MS-27582
88-3-87-3-20
"Rule 47-C. Rule 47 recognizes the right of repre
sentative of the Organization, party hereto, to file
and prosecute claims and grievances for and on behalf
of the employes they represent."
The Agreement clearly limits the parties who can handle Claims or Grievances
on the property of the Carrier to the individual Claimant or BRAC. This Board
has repeatedly recognized the right of parties to a Collective Bargaining
Agreement to limit the representative rights of employes in the handling of
their Claims or Grievances. See, for example, First Division Awards: 25853,
6381, 1821; Second Division Awards: 8727, 7300, 6381; Third Division Awards:
21626, 21237. Furthermore, both the Carrier and BRAG assert that at no time
in the history of representing clerical employes of the Carrier has anyone
other than BRAC or the employe involved handled Claims or Grievances on the
property of the Carrier. The Claimant has not disputed such assertions of
material fact.
A review of the Claims filed by Mr. Lemkau, a former Carrier employee, on or about January 6, 19
handling of these disputes on the property, the Claims were not handled by the
individual Claimant or BRAC. Thus, in this particular Claim, the evidence
shows that the Claimant filed his initial Claim with Carrier on August 13,
1985. Under Rule 47-A of the Agreement, the Claimant clearly had the right to
file a Claim on his own behalf. The Carrier declined the Claim on August 16,
1985. The Claimant responded on September 9, 1985, stating that he was going
to progress his Claim by appealing to a higher officer of the Carrier, which
he did in a letter to the Carrier's Assistant to Vice President, Labor
Relations, dated September 9, 1985. The record reflects further correspondence between the Claimant
March 3, 1986, April 11, 1986, and April 28, 1986.
Thereafter, on November 24, 1986, the Claimant sent a notarized
statement to the Carrier notifying the Carrier:
...that Joel F. Handler, John P. Lemkau and Gary
J. Guidicessi may represent me in conferencing any
and all claims and/or grievances I have pending
before the Atchison, Topeka and Santa Fe Railway
Company and further do expressly authorize Mr. Handler, Mr. Lemkau and Mr. Guidicessi to fully settl
compromise and/or otherwise resolve all such claims
or grievances on my behalf."
It is undisputed that none of the individuals listed in the Claimant's notarized statement has a
Finally, on April 24, 1987, BRAC wrote to the Carrier stating that
it objected to the Carrier dealing with anyone other than the individual or
BRAC in handling the Claimant's Claim on the property.
Form I Award
No. 26749
Page 4 Docket
No. MS-27582
88-3-87-3-20
While the record does indicate that Claimant's Claim was discussed
in a conference between the Carrier and some of the individuals named in the
Claimant's notarized statement, the record likewise shows that _no conference
was held between the Carrier and the Claimant or the Representative designated
to represent him under Rule
47
of the Agreement. Accordingly, no conference
was held on the property as required by the Railway Labor Act and, in accordance with a legion of Bo
must dismiss the Claim on jurisdictional grounds.
Beyond the jurisdictional defect that requires our dismissal of the
Claim, we have examined the merits of the Claim and find that the Claim is not
supportable on such basis as well. The initial Claim, dated August
13, 1985,
alleged that the Carrier violated various provisions of the Agreement between
the Carrier and BRAC dealing with the abolishment of clerical positions. Beginning with its appeal l
3, 1986,
however, the Claimant abandoned any argument with respect to the merits of his Claim, relying in
solely on the position that the Carrier had not timely responded to the appeal
letter dated September
9, 1985,
which according to the Claimant alleged "the
improper bulletining of Position
No. 6255
to Santa Fe." The Carrier, in its
letter to the Claimant dated April
11, 1986,
responded that it had never received an appeal from the Claimant with respect to Position
No. 6255;
that it
had received an appeal from the Claimant dated September
9, 1985,
dealing with
the abolishment of Position
No. 6143;
and that the Carrier had responded to
the appeal dealing with Position
No. 6143
in its letter to the Claimant dated
September
30, 1985.
The correspondence between the parties clearly supports
the Carrier's version of the facts. Thus, the file reflects that the Claimant
filed a Claim on August
13, 1985,
which was declined by the Carrier on August
16, 1985.
On September
9, 1985,
the Claimant wrote a letter to the Carrier's
Superintendent informing him that the Claimant intended to appeal the Carrier's declination of his C
13, 1985.
On the same date, the
Claimant sent an appeal letter to the Carrier's Assistant to Vice President,
Labor Relations, which reads:
"Enclosed for your consideration are all papers, regarding a grievance filed August
13, 1985
and rejected
by [the Superintendent]. This is to appeal his rejection to you."
The "papers" attached to the Claimant's letter included the initial Claim
filed by the Claimant on August
13, 1985,
which alleged the improper abolishment of Position
No. 6143. There is
no evidence in the record that the Carrier received a second Claim from the Claimant with an all
No. 6255.
This Board has long held that the burden of
proof is upon the sending party to prove that the document was received.
Third Division Award
25417,
citing
17
additional Awards.
For all the foregoing reasons, not only must the Claim be dismissed
for jurisdictional reasons, it likewise has no support on the merits.
Form 1 Award No. 26749
Page 5 Docket No. MS-27582
88-3-87-3-20
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ce:4z
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois this 5th day of January 1988.