Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28165
THIRD DIVISION Docket No. MS-27331
89-3-86-3-544
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Tony C. Slater
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
"Claim on behalf of Mr. T. C. Slater, who was a regularly assigned
laborer on Steel Gang No. 2-981, that the Agreement was violated when on may
10, 1985 Carrier allegedly placed Claimant on force reduction without prior
notice as required by Rule 8, Force Reduction, of the schedule 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 waived right of appearance at hearing thereon.
Claimant in this case, Laborer T. C. Slater, with an employment date
of September 16, 1981, was the most junior man on Steel Gang #2 working in the
vicinity of Federal, Wyoming at the time relevant to this dispute. The instant claim involves a fact
1985, was furloughed in a force reduction requiring five working days advance
notice. Claimant requests payment of five days pay at the pro rata rate based
on his contention that he was not given the requisite advance notice.
Preliminarily, however, and before the instant case can be reached
on the merits, Carrier has raised a threshold procedural question which, if
answered in the affirmative, would effectively divest this Board of jurisdiction. Carrier alleges th
this Claim to the Board until July 23, 1986. Since the claim was declined by
Carrier's highest designated officer by letter dated October 21, 1985, Carrier
contends that proceedings were not instituted before this Board within a timely manner, as the July
within the nine (9) month time limitation provided in Rule 42 (C) of the
schedule Agreement.
Form 1 Award No. 28165
Page 2 Docket No. MS-27331
89-3-86-3-544
The employee does not dispute the factual allegations advanced by the
Carrier, but argues instead that a procedural error committed by the Carrier
following the initial filing of the Claim takes precedence and requires that
the Claim now be sustained in its entirety. The employee maintains that Carrier did not timely respo
such Claim or having received such letter.
Review of the correspondence on the property shows that Carrier on
May 7, 1986, called to the Organization's attention that it had no record of
receipt of a June 7, 1985, Claim letter. The Organization could have rectified the alleged omission
while the dispute was being processed on the property. As the record stands,
however, the critical letter was not provided until it became an attachment in
the employee's Submission. Since it is well established that the Board cannot
consider new evidence which was not developed on the property, we must find
that the employee's Exhibit 2 is inadmissible, and, therefore, the employee's
procedural argument must be rejected.
We concur with the Carrier's contention that the matter before us is
not timely nor was it handled in the manner prescribed by the collective bargaining agreement. Havin
requisite time frame, the employee did not handle the claim in the "usual
manner" as set forth in Section 3, First (i) of the Railway Labor Act, which
states:
"(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, 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."
Our jurisdiction is limited to those cases handled in the "usual manner." See
Third Division Awards 27502, 27042, 27218, 27168. We, therefore, have no
alternative but to dismiss this Claim.
Form 1 Award No. 28165
Page 3 Docket No. MS-27331
89-3-86-3-544
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
5~WZL~
Nancy J a -Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1989.