Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27849
THIRD DIVISION Docket No. MS-26904
89-3-85-3-612
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(John P. Lemkau
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM:
"Whether claimant is entitled to annual vacation or equivalent
pay for years 1984 and 1985."
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 waived right of appearance at hearing thereon.
The Claimant sent a letter to the Carrier on October 11, 1984, inquiring about vacation time ava
these two years. The Claimant then notified his Organization that he was
filing a formal grievance against the Carrier because of "unjust treatment and
violation of ...the Agreement." After denial of the grievance by the Carrier,
the Claimant appealed to the Carrier's Vice President of Labor Relations with
information that his "attorney advised him" that he had vacation pay coming
for the years in question. Absent resolution of the Claim on the property an
attorney for the Claimant served notice with the Board of intention to file an
"ex parts submission" on behalf of the Claimant covering an "unadjusted
dispute" between the Claimant and the Carrier.
As a preliminary matter, the Carrier argues on procedural grounds
that this Claim is inappropriately before the Board because it was not handled
"in the usual manner" on the property prior to its being docketed before the
Board. A review of the record shows that the Claim was not conferenced on
the property. Since such is so, it was not handled in accordance with Section
2, Second and Section 3, First (i) of the Railway Labor Act. Section 2,
Second of the Act states the following:
Form 1 Award No. 27849
Page 2 Docket No. MS-26904
89-3-85-3-612
"All disputes between a carrier or carriers
and its or their employees shall be considered,
and, if possible, decided, with all expedition,
in conference between representatives designated
and authorized
so
to confer, respectively, by the
carrier or carriers and by the employees thereof
interested in the dispute." (Underscoring added)
Section 3, First (i) of the Act also 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 the date of approval of this Act,
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 manner, 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." (Underscoring added.)
Arbitral precedent of the Board holds that the provisions of the Act
cited above and Circular No. 1 mandate the procedural route to be followed in
the attempt, by the parties, to resolve disputes (See Third Division Awards
25097, 25712; also Third Division Award 25737 between the same parties to the
instant Claim). The Board finds the reasoning set forth in these Awards
applicable to the facts of the instant case before it. The Claim is in
procedural default.
The Board cannot, therefore, address the merits of the Claim.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1989.