Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28922
THIRD DIVISION Docket No. MW-28872
91-3-89-3-272
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak) -
( Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, on September 7, 1987, it
advertised two (2) 16 tool tamper operator positions under Numbers 73 and 74ACY-0987, without making
(2) The appeal as presented by District Chairman W. K. Manning on
January 12, 1988 to Assistant Chief Engineer J. J. Cunningham shall be allowed
as presented because said appeal was not disallowed by Assistant Chief Engineer Cunningham in accord
(3) As a consequence of either/or both Part (1) and/or Part (2) hereof, the
'...
two (2) senior, qualified, employees possessing Southern District
EWE seniority who are not working positions paying the EWE 'A' rate and who
would be eligible to make application for a contract tamper position advertised pursuant to the May
all time worked by the employes assigned to the above-described positions at
the EWE 'A' rate of pay including the $.55 per hour incentive provided for
'contract' tamper operator positions."
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.
Form 1 Award No. 28922
Page 2 Docket No. MW-28872
91-3-89-3-272
On July 13, 1987, the Carrier advertised two Engineer Work Equipment
- "A" Class (EWE-A) Tamper Operator positions in connection with its Atlantic
City Line. There were no qualified applicants. On September 7, 1987, the
same positions were again bulletined. At a grievance meeting on September 24,
1987, the Organization raised the contention that the positions should have
been advertised as "contract" positions under the Tamper Agreement of May 21,
1979. The reply given by the Carrier Representative at the September 24 meeting was that "There is n
do not feel it is necessary to contract someone for this project."
Thereafter, the Organization initiated two Claims on October 22,
1987. The Claim for consideration here was directed to the Atlantic City
Project Manager (not the correct individual for this purpose) on behalf of:
"the two (2) senior, qualified, employees possessing
Southern District EWE seniority who are not working
positions paying' the EWE 'A' rate and who .. ild be
eligible to make application for a contract -amper
position
....
Although not the proper individual to receive the Claim, the Project
Manager nevertheless replied, denying the Claim. Thereaf...r, the Claim was
timely appealed to the Assistant Chief Engineer, and the .-;anization seeks to
have the Claim sustained on the basis (among other reason. that the Carrier
failed to meet the time limits for such reply, pursuant tj Rule 64.
There is, however, a complication. Also on October 22, 1987 (the
same date as the Claim described above), the Organization filed a virtually
identical Claim with the Assistant Chief Engineer, who is supposed to receive
appeals but not initial Claims. Nevertheless, the Assistant Chief Engineer
replied to the Claim. It was further progressed and answered by the DirectorLabor Relations, who obj
and to the failure to direct the initial Claim to the proper individual. It
must be noted that the Claim initiated with the Assistant Chief Engineer is
not before the Board for resolution.
Returning now to the Claim at hand, the Board cannot accept the Organization's view that the Cla
First, the Carrier raises an objection that the Claim does not specify particular Claimants, but
The Board is fully cognizant that there are situations where the naming of a
particular Claimant may not be required, particularly where necessary information is in the singular
here. There is simply no showing that there were employees who may have responded to the advertiseme
have been qualified. It is only reasonable that the Organization be required
to specify which particular employees were adversely affected and under what
circumstances. The Claim must therefore be found improperly initiated. As
stated in Third Division Award 28596:
Form 1 Award No. 28922
Page 3 Docket No. MW-28872
91-3-89-3-272
"We have closely examined the record in the instant
Claim and must conclude that Carrier is correct that
the Claim is barred on procedural grounds. We are
cognizant of those prior cases in which the Board has
held that Claimants need not be specifically named in
a claim in order for the claim to be sufficient, but
that the aggrieved must be described with sufficient
particularity so that the Carrier can readily identify
same. (See e.g., Third Division Award 11372.) It is
the Organization's burden, however, to prove that the
identity of the aggrieved can be readily ascertained
by the Carrier. In this case, while the Claim describes
an incident, cites an Agreement alleged to have been
violated and the date the alleged violation commenced,
it is not at all clear who was aggrieved."
Thus, the Carrier's later failure to respond to the appeal is without
significance, in view of the Claim's initial deficiency.
It is noted, however, that the Claim also seeks to have the position
"advertised and/or readvertised." This leads to the second reason for finding
the Claim deficient. This request as to re-advertisement is the sole burden
of the second October 22, 1987 Claim, discussed above. This Claim is entirely
duplicative of the second Claim, which was fully developed on its own through
the Claim handling procedure. Thus, the dispute as to whether the positions
should be re-advertised was in the hands of the parties in the second Claim
and needs no resolution here.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Z~S-t
Gy~
Nancy J~4er - Executive Secretary
Dated at Chicago, Illinois, this 29th day of August 1991.