Oancy CJW- .Executive Secretary

CARRIER MEMBERS' DISSENT

TO

AWARD 29093, DOCKET CL-29285

(Referee McAllister)

The decision rendered in this case is grievously in error in that it has ignored the facts of record in its eagerness to find the Carrier at fault. The disposition is spurious on both procedural and substantive grounds.

In the record submitted to this Board, the organization filed a claim dated March 10, 1986 and the Carrier timely denied the claim on its merits on June 5, 1986. No appeal of the Carrier's denial was made within the next sixty (60) days and the claim died pursuant to Rule 35(u)(2):

"If a disallowed claim or grievance is to be appealed, such appeal must be in writing and must be taken within 60 days from receipt of notice of disallowance ... Failing to comply wits this provision, the matter shall be considered closed,..." (Emphasis added)

The organization, according to the record before this Board, took no action in this matter at all during the balance of 1986.

By a letter dated March 16, 1987, eight months after this claim died under the time limit rule, the organization sought extension of time limits in 208 separate cases that had last been denied by the Carrier in 1985 and 1986. By a letter dated March 26, 1987, Carrier agreed to the extension of time, "on account of the personnel changes in your office and the additional time needed to appeal the claims." However, Carrier did impose a number of conditions on its granting the extension of time. Applicable here is condition No. 3 stating:

"That any of the claims referred to which are in violation of any applicable time limit rule or rules on

Nothing more was heard from the Organization until they sought a conference on this Tatter which was held on June 1, 1989, that is three (3) years after it was last timely handled on June 5, 1986. In the Carrier's letter of August 14, 1989, Carrier again pointed out that the claim was "totally without merit" and "remains denied for lack of support from schedule rules and agreements." This is the "subsequent correspondence" referred to by the Majority on which it contends that the time limits argument was not preserved and was waived.

Such a position is fallacious! The claim died in 1986, pursuant to Rule 35(dl(2), when the Organization failed to progress their claim timely. Nothing more was needed! When the organization attempted to revive this moribund matter in 1987

never produced evidence for the Carrier or to this Hoard to the effect that Carrier's conclusion was in error. The Organization simply ignored its failure. And the Majority here has simply ignored the clear language of the rule as well as the chronology of this record.

In Third Division Award 12953, this Hoard, dealing with allegations not restated in rebuttal submissions, noted what is also applicable in this case:

"Once an allegation has been denied, there is no need to repeat the denial because the allegation is repeated. As between an actual denial and an inferred denial, it would be to fly in the face of common sense to prefer the inference merely because it came later."

In Award 28196, involving this same Majority, the following was stated:

"Clearly, the Carrier raised a specific objection to this procedural violation. Accordingly we cannot consider the merits of the Claim because it is procedurally defective." (Emphasis added)

Award 28918:

"After careful review of the record in its entirety, it is our view that Carrier's timeliness objection is indeed dispositive of the instant case." (Emphasis added)

This claim died under the contract in 1986: the Carrier specifically advised the organization at least twice in 1987 that the claim was in violation of the time limit rule: the organization never attempted to rebut the Carrier's conclusion; but this Majority has on its own assumption here, raised the dead:

In this record, there was no dispute that Claimant did assist in the preparation and did supervise the 'clerical staff in the review of shipper claims.

It is also not disputed that this activity had increased in 1984-1985. However, the "finalization of claims,." the subject of this claim, was always the duty of Carrier's management. While Claimant's participation in the process was a function of the increase in volume, the r4cord did not include any evidence that he "...performed duties otherwise performed by officers..." As such, even under a "position and work" scope rule, one cannot accrete what is not being done. No evidence; as opposed to the Organization's assertions, was ever put into the record that Claimant fully concluded, i.e., finalized claims. As such the Majority's conclusion is unsupported in this regard as well.

We dissent.

. Varga M. W.~ hu~

046~

LABOR MEMBER'S RESPONSE

TO

CARRIER MEMBER'S DISSENT

AWARD 29093, DOCKET CL-29285

(REFEREE MCALLISTER)

The right of Dissent remains valuable only when it is exercised with due regard for the facts and constructive criticism of opinion. The Dissent here has neither of these redeeming features, and is, therefore, valueless.

The Minority continues to extol an unsupported argument that the time limits were violated in the handling of the subject claim and that somehow the Majority has raised the claim from the dead. Contrary to the Minority Opinion the Majority did not stand at the alleged tomb of the claim and do as Jesus Christ did at the tomb of Lazaurs and say "Lazarus Come forth". The inference that supernatural power was needed to resurrect the claim is nonsense. The record is clear the claim never died. but was mutually extended by the parties.

After spending three pages of their Dissent attempting to bury a live claim the Minority decides to take a half page to discuss the merits. In the second paragraph on page 4 they state:

"No evidence, as opposed to the Organization's

assertions, was ever put into the record that Claimant fully

concluded, i.e., finalized claims."

The aforementioned Minority allegation simply refuses to

recognize that the record clearly shows that the organization offered far more than assertions. Conclusive proof was provided with statements by carrier officers as well as various other exhibits that attest to the fact that the claimant finalized claims. See for just a few examples T.C.U. Exhibit 1 pages 5,6,7, and 8, T.C.U. Exhibit 2 pages 1 and 3.

The Minority Opinion does not detract from the Award as it is clear that the Organization has proven to the Board that the Scope Rule was violated when the carrier removed protected work and transferred it to an employee outside the Scope of the Agreement without mutual concurrence.

The Neutral in Third Division Award 29093, properly and correctly analyzed the parties's positions, the applicable rules and found the Carriers actions were improper and not consistent with existing rules, agreements and practices. The Award is correct and is precedential for any future disputes involving the same subject.

The Dissent, therefore , registers only the disagreement of the Minority and serves no other useful propose.

Respectfully submitted