Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29163
THIRD DIVISION Docket No. MW-28410
92-3-88-3-196
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (
(CSX Transportation, Inc.
(Former Western Maryland Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned ,junior Class
'B' Machine Operator S. Collett instead of Class 'B' Machine Operator R. Roy
to operate a Class 'B' spike pulling machine between Elkins and Parsons, West
Virginia an January 6, 7, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, February
2, 3, 4 and 5, 1987 (System File 12-18/$7-538).
(2) The claim* as presented by District Chairman H. Householder on
February 15, 1987 to Division Engineer C. L. Bailik shall be allowed as presented because said claim was not timely disallowed by Division Engineer
Bailik in accordance with Rule 16.1. (a).
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, furloughed Class 'B' Machine Operator R. Roy shall be
allowed:
'...
17 regular 8 hour days @ Class "B" Operator
rate of $12.7994 per hour plus 2 hours at time and
a half (2/20/87) @ $19.1991 = $1779.10.'
*The letter of claim will be reproduced within
our initial submission."
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. 29163
Page 2 Docket No. MW-28410
92-3-88-3-196
Claimant holds seniority as a Class "B" Machine Operator and was on
furlough status at the time of the events giving rise to this dispute. On
the claim dates, Carrier needed an employee to fill a temporary position
operating a spike puller, a Class "B" machine, between Elkins and Parsons,
West Virginia. A Trackman, junior to the Claimant as a Class "B" operator,
was temporarily upgraded to operate the spike puller, for which he was paid a
on February 15, 1987, the District Chairman submitted the instant
claim, alleging that Claimant should have been called and used on the Class
"B" operator vacancy, and citing Rule 18(a) in support thereof. The claim
letter was sent by certified mail to Division Engineer C. L. Bailik, who the
Organization contends was the Carrier Officer authorized to receive same. The
certified mail return receipt request was received and signed for by E. H.
Messner on February 20, 1987.
On April 24, 1987, Division Engineer C. L. Hardy denied the claim.
The Organization appealed the claim by letter dated June 8, 1987, contending
that it was payable as presented because the Division Engineer failed to make
a timely response to the initial claim and further contending that the claim
was valid on its merits. By letter dated August 6, 1987, Carrier's Director
of Labor Relations declined the claim on its merits and then stated:
"Insofar as the time limits are concerned, while it
is true that the claim was received in the Division
Manager's office in Pittsburgh and signed for by Mr.
Messner.on February 20, 1987, it was not received by
the Division Engineer, the officer designated to
receive claims, until February 23, 1987. It is our
position that the claim was improperly filed; however, we are willing to waive the time limits because
of these circumstances."
The Organization contends that the Carrier violated the time limits
set forth in Rule 16(a), which provides:
"(a) All claims or grievances must be presented in
writing by or on behalf of the employee involved to the 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 employee or his representative) in writing of the
reasons for such disallowance. 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."
Form 1
Page 3
Award
No.
29163
Docket
No.
MW-28410
92-3-88-3-196
Carrier contended on the property that the claim was improperly filed
and that it was not received by the Division Engineer, the officer designated
to receive claims, until February 23, 1987. In its Submission before the
Board, Carrier argued for the first time that the Division Engineer in
Baltimore was the only authorized Carrier Officer to receive claims, and that,
since the Organization had been properly notified of that fact, the original
claim was sent in error to the Division Engineer in Pittsburgh, Pennsylvania.
We are precluded from considering this information, however, as it was not
raised during the handling of this dispute on the property. Given the state
of the record actually before us, we are compelled to conclude that Carrier's
general assertions on the property cannot serve to defeat the Organization's
claim. The evidence shows the claim was filed on February 20, 1987, when a
Carrier agent acknowledged receipt thereof. The Organization asserted that
the claim was properly addressed and presented to the officer, Division
Engineer C. L. Bailik, authorized by the Carrier to receive claims. If the
Organization was in error, Carrier was obligated to demonstrate that fact with
probative evidence on the property. Instead, the record shows that the claim
was disallowed by Division Engineer Hardy on April 24, 1987, beyond the 60-day
time limit. The claim must be allowed as presented.
A W A R D
Claim sustained.
Attest: ,
Nancy J~ Executive Secretary
Dated at Chicago, Illinois, this 3rd day of April 1992.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division