Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28734
THIRD DIVISION Docket No. MW-28604
91-3-88-3-439
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
(former Missouri Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly disqualified Machine Operator D. Reave
May 18, 1987 (Carrier's File 870575).
(2) Regional Engineer G. R. Lilly failed to disallow the claim presented to him by Assistant Gen
contractually stipulated within Agreement Rule 12, Section 2(a).
(3) As a consequence of either or both (1) and (2) above, the Claimant shall:
'...
be returned as operator of the AST-102 (sic)
as his seniority, ability, and merit would allow."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employees q,c 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 has seniority with the Carrier since 1971. On March 16,
1987, he was assigned to train as the operator of an ATS-102 (tamper). On May
13, 1987, he was informed of his disqualification as the ATS-102 operator. A
Claim protesting the disqualification was received by the Carrier on July 9.
The Carrier defends its action asserting the absence of any Agreement provisions supporting the Clai
ability to master the operation of the ATS-102 tamper. The Carrier further
maintains its actions were not unreasonable, arbitrary or capricious.
Form 1 Award
No.
28734
Page 2 Docket
No.
MW-28604
91-3-88-3-439
Before the merits can be reached, this Board must first address the
Organization's contention the Carrier failed to adhere to the time limit provisions set forth in Rul
beyond the sixty (60) days within which it had to act. Furthermore, the
Organization argues the Carrier also violated Rule 12, Section 2(a) when it
did not decline the Claim by notifying the person who filed the Claim. Rule
12, Section 2(a) states:
"All claims or grievances must be presented in writing by or on behalf of the employe involved,
officer of the carrier authorized to receive same,
within 60 days from the date of the occurrence on
which the claim or grievance is based. Should any
such claim or grievance be disallowed, the carrier
shall, within 60 days from the date same is filed,
notify whoever filed the claim or grievance (the
employe or his representative) in writing of the
reasons for such dis4llowance. If not so notified,
the claim or grievance shall be allowed as presented,
but this shall not be considered as a precedent or
waiver of the contentions of the carrier as to other
similar claims or grievances."
As stated above, the record shows the Claim was received by the Carrier on
July 9, 1987. On September 3, the Regional Engineer prepared and signed a
letter of declination addressed to the General Chairman. That letter was
postmarked September 7, 1987, which is the sixtieth day from receipt of the
Claim.
The language of Rule 12, Section 2(a) could not be clearer. It
requires the Carrier to notify whoever filed the Claim of its disallowance
within sixty (60) days. The record establishes the denial was entered into
the mail on September 7, 1987. This act cannot be construed as compliance
with Rule 21.2(a) since the Organization was not notified of the denial by the
act of posting the letter. Moreover, the Claim"w1as filed by the Assistant
General Chairman, not the General Chairman. Therefore, the Carrier's dis
allowance was procedurally defective on the time limit for disallowance as
well as failing to address the disallowance to the individual specifically
designated by Article 12.2(a). Accordingly, the Claimant's seniority on the
ATS-102 tamper is to be restored. The Claimant is to be afforded the oppor
tunity to bid on that job and given another opportunity to qualify on the
ATS-102. !_
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 28734
Page 3 Docket No. MW-28604
91-3-88-3-439
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy Nancy J.
X-
Executive Secretary
Dated at Chicago, Illinois, this 28th day of March 1991.
CARRIER MEMBERS' DISSENT
TO
AWARD 28734, DOCKET MW-28604
(Referee McAllister)
We do not agree with the majority's findings on the
time limit issue. The following Awards are merely a small
sample of those that likewise are in disagreement. First
Division Award 16366; Second Division Awards: 8833, 8725,
8680, 4609; Third Division Awards: 18881, 14695, 13219,
11575, 10490; Fourth Division Awards: 4736, 3234, 1717,
1177.
" i J
M. W. Filgerhf£
R.
L. Hicks
M.
C. Lesnik
P. V. Varga
J E': Yost