Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26922
THIRD DIVISION Docket No. MS-26486
88-3-85-3-221
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Mike Madewell and Susan Madewell
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM:
"(A) Did the Grievants timely file a verification of address with
the Railroad as required by Rule 17-B of the Bargaining Agreement?
(B) If so, did the Company improperly terminate their employment?
(C) Did the Grievants timely file a grievance under Rule 47 of the
Bargaining Agreement?"
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 employes 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.
At the time of the instant dispute, Claimants (husband and wife) were
off-in-force reduction employes with April 24, 1971 and October 5, 1970, clerical seniority dates, r
Rule 17-B of the Clerks' Agreement that resulted in the forfeiture of their
seniority rights and the removal of their names from the Southern Division
Station seniority roster. The provisions of Rule 17-B state as follows:
"Employes who become off-in-force reduction must
promptly advise their employing officer of their
current address (unless their current address is
on file) and promptly advise of subsequent
changes therein. Employes off-in-force reduction
who do not perform service under this Agreement
during a calendar year, must file their current
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address with their employing officer during the
month of December of such calendar year and fail
ure to file in December shall result in forfeiture
of all seniority rights."
After the Southern Division Station seniority roster was posted on
January 11, 1984, Claimants submitted a letter to Carrier dated January 13,
1984, advising that their names had been removed from the seniority roster in
error. Carrier responded that it had not received notification of the Claimants' address in December
By letter dated March 12, 1984, Claimant submitted an appeal pursuant
to Rule 4-C of the Agreement. Attached to the letter were copies of the
Claimants' original December 23, 1983, notification, stamped received December
29, 1983, on Carrier's watermark paper. Claimants contend that they received
the copies through the U.S. mail in a Santa Fe Superintendent office envelope.
On April 18, 1984, Carrier denied the Claim. Organization and Carrier representatives met on Dec
time the Carrier presented a signed statement from a file clerk stating that
"such a notice by the Claimants would not have gone unnoticed for such a long
period of time." The Carrier also took the position that the time limits for
filing a claim had not been met. An extension of time to appeal this case was
requested by the Organization and was granted until April 1, 1985. Carrier
received another Appeal Letter on February 25, 1985, advising that the law
firm of Sears and Parker had been retained by the Claimants to present their
appeal. In that letter, the original claim submitted by the Claimants requesting that they be return
request for backpay.
Before turning to the merits, several procedural objections have been
raised by the Carrier which must be addressed. First, Carrier has argued that
the claim was not timely because it was not filed within sixty days of the
occurrence on which the claim is based. We find this position is not well
taken since, pursuant to Rule 4-C, "upon presentation of proof of error by an
employee or his representative, such error will be corrected." From the foregoing language, it appea
proof of error before resorting to the formal grievance procedure. On January
13, 1984, two days after the seniority list was posted, Claimants sent Carrier
a copy of their December 23, 1983, letter with a date stamp on it dated December 29, 1983, thereby g
was not until January 23, 1984, that the basis for the grievance arose when
Carrier denied Claimants' claim that an error had been committed. Since the
formal grievance was filed on March 12, 1984, it was well within the sixty
days time limit provided in Rule 47.
Carrier's assertion that Claimants did not properly handle the
instant claim because it was appealed by the law firm of Sears and Parker for
a second time on the property is correct because Rule 47 of the Agreement
between the Carrier and the Organization sets forth the Rules with respect
Form 1 Award No. 26922
Page 3 Docket No. MS-26486
88-3-85-3-221
to whom can handle employee 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 whoev
representative) in writing of the reasons for such disallowance." While Rule
47-A does not define the term representative, Rule 47-C does. Rule 47-C
states:
"Rule 47-C. Rule 47 recognizes the right of representative of the organization, party hereto, to
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 the
duly authorized representative of the Organization. This Board has consistently recognized the right
limit the representative rights of employees 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.
It stands unrefuted that in the history of the Agreement no one other than the
employees or a duly authorized representative of the Organization has handled
claims or grievances while the claim is still on the property. The Claimant
has not refuted such. Nonetheless, that issue becomes moot in this instance
because of the fact that the Organization properly advanced and protected the
claim to its highest level on the property.
On the merits, after careful review of the record evidence in its
entirety, we conclude that the evidence supports the Claimants' position that
verification was timely given. Carrier does not deny that the received stamp
contained on the document proffered by the Claimants as their December 23,
Letter of Verification is other than Carrier's own stamp. Instead Carrier
argues that it was falsified. But, that argument is just that - argument, and
not evidence, and we will not credit what appears to be mere surmise and conjecture on the Carrier's
letter from Carrier's file clerk stating that the Claimants' December notification could not have go
not surface until December 4, 1984, does not really rebut or refute the Claimants' contention that t
Accordingly, we rule to sustain the claim in part, but will deny the
request for backpay. The initial claim submitted by the Claimants made no
request for monetary compensation; the Statement of Claim before the Board
does not refer to monetary compensation; and, there was no evidence presented
that Claimants suffered monetary loss.
It is ordered, therefore, that Claimants be returned to the 1984
seniority roster, but without backpay.
Form 1 Award No. 26922
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88-3-85-3-221
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
Nancy J/l~ler - Executive Secretary
Dated at Chicago, lI~llinois, this 30th day of March 1988.