Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27586
THIRD DIVISION Docket No. MS-27080
88-3-85-3-736
The Third Division consisted of the regular members and in
addition Referee Edwin H. Benn when award was rendered.
(Randy Newland Hollifield
PARTIES TO DISPUTE:
(Southern Railway Company
STATEMENT OF CLAIM: "This is a claim on behalf of Mr. Randy Newland Holli-
field, formerly employed as an over the road driver by
Norfolk and Southern Railway. This claim is for payment of $75,000 due to
accidental dismemberment of his left leg above the knee, under an agreement
between the Brotherhood of Maintenance of Way Employes, and the National
Railway Labor Conference, dated 10 February 1971 and amended in October of
1978."
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.
Claimant's statement of facts discloses the following:
"On 11 May 1984, Mr. Randy Newland Hollifield
was employed as an over the road truckdriver by
Norfolk and Southern Railway. On that day Mr.
Hollifield prepared to leave Asheville with his
tractor-trailer at approximately 4 a.m. He was to
take a load to Durham, North Carolina, but discovered that a wheel on the rig that he was to
drive to Durham was defective. Pursuant to orders
given him by his superiors, Mr. Hollifield took the
rig to the Candler Truck Service for repair. After
arriving at the Candler Truck Service, Mr. Hollifield contacted Norfolk and Southern offices in
Roanoke, Virginia for the purpose of obtaining a
purchase order number for the repair of the damaged
wheel. After receiving the purchase order number
for the repair to the damaged wheel, the employees
at Candler Truck service discovered the wheel was
Form 1 Award No. 27586
Page 2 Docket No. MS-27080
88-3-85-3-736
beyond repair. As a result, Mr. Hollifield,
pursuant to orders he had previously been given,
attempted to contact Roanoke and obtain a new
purchase order number for the purchase of a new
wheel. After numerous attempts, Mr. Hollifield
was unsuccessful in contacting the appropriate
person in Roanoke. After waiting for some time,
Mr. Hollifield's mother, who had come to pick him
up at the Candler Truck Service, had to leave to
go to work. At that time, Mr. Hollifield, rode
back to his home with his mother for the purpose of
obtaining other transportation. Mr. Hollifield
immediately boarded his motorcycle and proceeded
directly back to the Candler Truck Service for the
purpose of obtaining the new purchase order number
for the replacement of the defective wheel. It was
while Mr. Hollifield was en route to the Candler
Truck Service, approximately one-half mile from its
location, that he was struck by a third party driv
ing a passenger vehicle. As a result of this col
lision, Mr. Hollifield lost his left leg as a re
sult of an amputation which was necessitated above
the knee."
Additional facts developed in the record show that at the time of the
accident, Claimant's brother-in-law was riding on the motorcycle with Claimant.
Claimant, through his attorney, initiated a series of contacts with
the Carrier. Specifically, after a phone contact on June 28, 1984, Claimant's
attorney notified Claim Agent W. Jones by letter of the same date that his law
firm would be assisting Claimant in connection with various claims. By letter
dated August 7, 1984, Jones advised Claimant's attorney where certain requested information could be
Claimant's attorney wrote the Carrier's Employee Benefits Department concerning the incident and inq
October 10, 1984, Claimant's attorney wrote Assistant Chief Claim Agent J.
Blankenship of the Carrier's Employee Benefits Department seeking to follow up
on the August 28, 1984 letter and a subsequent phone conversation. By letter
dated October 17, 1984, Blankenship informed Claimant's attorney that the
Carrier was in the process of making a decision. By letter dated December 6,
1984, General Claim Agent G. E. Lewis advised Claimant's attorney that the
Off-Track Agreement was not applicable under the circumstances surrounding
Claimant's accident. No further appeals were lodged with the Carrier.
Further, no conference was held on the property. In December 1985, Claimant's
attorney served General Claim Agent Lewis with a notice of intent to file an
ex parte submission with this Division naming the Norfolk and Southern Railway
as the Carrier.
Article V of the 1971 National Agreement and its later amendments
states:
Form 1 Award No. 27586
Page 3 Docket No. MS-27080
88-3-85-3-736
"Where employees sustain personal injuries or
death under the conditions set forth in paragraph
(a) below, the carrier will provide and pay such
employees, or their personal representative, the
applicable amounts set forth in paragraph (b) be
low, subject to the provisions of other paragraphs
in this Article.
(a) Covered Conditions -
This Article is intended to cover
accidents involving employees covered by this
agreement while such employees are riding in,
boarding, or alighting from off-track vehicles
authorized by the carrier and are
(1) deadheading under orders or
(2) being transported at carrier
expense.
(b) Payments to be Made -
Loss of One Foot $75,000"
Initially, we lack jurisdiction to consider the Claim. In accord
with Section 3, First (i) of the Railway Labor Act, before we can consider a
claim, the particular dispute
"...
shall be handled in the usual manner up to
and including the chief operating officer of the carrier designated to handle
such disputes
....
Moreover, Section 2, Second of the Act requires that all
...disputes between a carrier and its
...
employes shall be considered
...
in
conference between representatives designated and authorized so to confer
...
by the carrier
...
and
...
the employees
....
Circular No. 1 of this Board
reiterates these jurisdictional requirements by stating "No petition shall be
considered
...
unless the subject matter has been handled in accordance with
the provisions of the Railway Labor Act
....
It is undisputed that appropriate appeals to the Carrier's chief operating officer designated to
disputes or required conference on the property were not held prior to the
submission of the-instant matter to this Board. It is well-established that
we therefore lack jurisdiction to consider the Claim. See Third Division
Award 25298
("...
this Board is pointedly precluded from reviewing and
deciding Employee claims that were not fully handled on the Employer's
property)." See also Third Division Awards 25676, 25709, 25514, 19751, 18951,
19709.
Claimant's arguments do not change the result. The statute and the
above precedent require that appeals must be processed and conference held
with the appropriate Carrier officers. The Carrier's General Claim Agent is
not the individual in the statutory scheme making the final determination.
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No. 27586
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No. MS-27080
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For purposes of this case, the General Claim Agent merely stands in the shoes
of a lower level supervisor or department head who initially declines a claim.
It is statutorily incumbent upon Claimant to appeal therefrom as provided in
the Schedule Agreement and have the required conference prior to submitting
the dispute to this Board. Putting aside the fact that our experience shows
that claims are resolved in the on-property appeal process set forth in the
Act, since such a procedure is required by the Act, as a matter of law, such
does not constitute a futile or superfluous act as Claimant now argues.
However, notwithstanding the above fatal jurisdictional defects, even
if we could consider the merits of the Claim, we would deny the same. By
Claimant's own statement of facts, Claimant left Candler Truck Service, rode
home with his mother and returned on his motorcycle. According to Claimant's
statement of facts, Claimant's mother "had to leave to go to work" and Claimant "rode back to his ho
transportation." Under the
1971
Agreement, "[t]he burden of proof is the
claimant's to show authorization and this record does not so show. A naked
allegation of an instruction is not enough." Third Division Award
21527.
Claimant's arguments are made under general principles of agency law, i.e.,
that at the time of the accident, Claimant was on his master's business.
However, basic concepts of agency relationships also require that Claimant not
act outside the authority given to him and he must refrain from engaging in a
frolic on his own. Therefore, to meet his burden, Claimant must show that he
had authorization to leave Candler Truck Service, go home and return due to
his mother's need to go to work. Claimant has not shown such authorization
beyond the mere allegation of having such authority. See Public Law Board No.
519,
Award No.
18
where an employee was killed in an accident.
"The record is clear and shows that the claimant
elected to use his own auto to deadhead between the
two points mentioned above. While the carrier does
not prohibit such election by employees, it does
not extend its liability to situations which stem
from such elections. The carrier did not authorize
the claimant to use his automobile in either direction. The claimant chose to do so as a matter of
personal convenience. Based on the facts of this
case, the Board may not sustain this claim."
Therefore, the issues concerning the propriety of Claimant's driving
a motorcycle at the time of the accident and having his brother-in-law as a
passenger need not be addressed. Here, Claimant has not made the threshold
showing that he had authorization to leave and return under the given circumstances. Claimant's argu
an instruction," which, without more, "is not enough." Third Division Award
21527.
In light of the above, we find it unnecessary to address the
Carrier's argument that Claimant failed to serve or name the proper party.
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Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: ,
ancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 27th day of October 1988.