Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28912
THIRD DIVISION Docket No. MS-29045
91-3-89-3-470
The Third Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
(Robert H. Cox
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Seaboard Coast Line)
STATEMENT OF CLAIM:
"#1. I qualified for Employee's Supplemental Retirement Plan September 1, 1966 - card membership #1778 with Seaboard Air Line Railroad. I desire
this Award.
#i2. My monthly guarantee of $985.00 per month beginning October 1970
when I became first adversely affected. I desire this Award retroactive to
October 1970.
I13. Moving expenses, transfer expenses and away from home expenses
account instructed to exercise my seniority, after completion of work
September 30, 1970. I desire this Award.
I14. Also request the Board to consider a fair amount of compensation
on a monthly basis beginning October 1970 through the month I choose to retire
due to punitive damages, embarrassment, mental anguish account instructed to
exercise my seniority without any explanation.
##5. Also request the Board to consider a fair amount of compensation
on a monthly basis beginning October 1970 until corrected account not having
rights and privileges the same as Officers regarding insurance, purchasing CSX
Stock and Etc."
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.
Form 1 Award No. 28912
Page 2 Docket No. MS-29045
91-3-89-3-47o
Claimant is employed as an Agent at Carrier's facilities in
Georgetown, S. C. In October 1989, Claimant served notice with the Board
that he intended to pursue the above-cited Claim on his own. This Claim has
been reviewed by Carrier Officials, as well as handled through the grievance
appeals procedure within the Organization. Both the Organization and Carrier
have instructed Claimant that his dispute is untimely filed and that the
doctrine of laches undermines the merits of his Claim. Carrier has also
denied the Claim on the basis that it is in the wrong forum. If it was
considered on the merits, however, Carrier also contends that it would not
stand.
This Board has reviewed the record presented and the statements made
at the Referee Hearing. Based on that review, we conclude that Claimant was
given the proper advice when he was told by his Organization Representative
that his Claim was untimely filed.
This Board has no authority to decide otherwise. We have in the past
reviewed similar Claims involving the Orange Book Agreement, with Referee
Criswell presiding. We quote from that Award:
"It appears to this Board that an unreasonable
length of time expired from date of the Orange Book
Agreement in perfecting these claims. Avery basic
purpuse of the Railway Labor Act was to provide for
prompt disposition of disputes between the carriers
and their employees. When the rights conferred by
this Act are delayed for an unreasonable time,
preventing prompt disposition of disputes, the
purpose of the Act is destroyed . . . .
Those words apply equally as well to this Claim.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ly -Executive Secretary
Dated at Chicago, Illinois, this 29th day of August 1991.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Serial No. 349
INTERPRETATION NO. 1 TO AWARD NO. 28912
DOCKET NO. MS-29045
NAME
OF
EMPLOYEE: Robert H. Cox
NAME
OF
CARRIER: CSX Transportation, Inc. (former Seaboard
Coast Line)
As background, this Board issued Award 28912 on August 29,
1991. Therein the Board noted that both the organization and the
Carrier had instructed Claimant that his dispute (seeking various
amounts of compensation and other considerations commencing in
October 1970) was untimely filed with the Carrier and that the
doctrine of laches undermined the merits of his Claim.
The Board concluded that the Claimant was given the proper
advice when he was told by his organization Representative that his
Claim was untimely filed.
Subsequent to the issuance of said Award, the Claimant filed
suit in United States District Court for the District of South
Carolina appealing the decision of the Board based on the specious
contention the Board did not conform to its own procedures in
adjudicating his claim.
While the Court recognized at Page 2 of its ORDER that the
Board:
"...concluded that Cox's petition was barred
by laches and therefore dismissed it...
11
the Court nevertheless, determined that the decision of the Board
was ambiguous in whether it followed its own procedures. The basis
for such decision was the sentence:
"This Board has no authority to decide
otherwise."
which just happens to follow the paragraph which states that
Claimant was informed by his organization Representative that his
claim was untimely. The Court remanded the matter to the Board for
further proceedings including a rehearing, if necessary.
Preliminarily, an Interpretation of an Award may not be
properly treated as a rehearing or a new trial of the merits of the
case.
In our view, contrary to the opinion of the court, the
-2- Serial No. 349
Award No. 28912
Docket No. MS-29045
language of Award 28912 is clear and unambiguous. There is no
genuine necessity for further clarification.
That said, however, so as to satisfy the Court's ORDER, the
Board categorically reaffirms that we find no reason to disturb our
earlier findings.
The Organization decided against appealing the matter to this
Board because it agreed with the Carrier's interpretation, i.e.
that the Claim was untimely filed with the Carrier and that the
doctrine of laches applied. The Claimant, when so informed by the
Organization, refused to accept the decision of not only the Carrier, but also the decision of the organization not to go forward.
The Organization explained to Claimant its reasons for not carrying
the case further. In spite of such advice, the Claimant filed a
Notice of Intent to make an Ex Parte Submission to this Board.
We emphasize that the Carrier and the organization were in
harmony with respect to the lack of merit of the claim. Therefore,
in keeping with a long line of Awards of all four Divisions of this
Board, we adhered to the principle that where the parties signatory
to the Agreement are in accord as to its application, claims to the
contrary submitted by individuals must be denied. While an
employee has the right to contest a particular Rule's application,
it is difficult to prevail if the signatory parties unequivocally
agree on a different interpretation. For us to have concluded
otherwise would have been an unwarranted usurpation of the
collective bargaining process. The Carrier amply proved that the
Claim was untimely filed and barred from further progression by the
doctrine of laches. The organization which negotiated and administers the Agreement concurred with this view. An affirmative
award, therefore, was not warranted on the Claim asserted herein.
As urged by the Carrier, the phrase "...no authority to decide
otherwise...
11
means that this issue was foreclosed by controlling
Board precedent. See First Division Awards 23083, 23044: Third
Division Awards 27454,, 26758: and Fourth Division Award 4891.
Referee Rodney E. Dennis, who sat with the Division as a
neutral member when Award 28912 was adopted, also participated with
the Division in making this Interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Catherine Loughrin - I rim Secretary to the Board
Dated at Chicago, Illinois, this 2nd day of December 1993.