Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29311
THIRD DIVISION Docket No. TD-28673
92-3-89-3-128
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Kansas City Southern Railway Company
STATEMENT OF CLAIM:
CLAIM Itl - Carrier file 013.34-11
Claim in behalf of Train Dispatcher T. A. Tucker for four (4) hours pay
at the overtime rate ~uly 21, 1985 and four (4) hours pay at the overtime rate
July 22, 1985, or permitting and/or required an employee not covered by agreement to perform service
1985 denying T. A. Tucker his agreement rights of Article 2(b).
CLAIM II2 - Carrier file 013.34-12
Claim of Train Dispatcher S. J. Fleming for four (4) hours pay at the
overtime rate July 21, 1985, and four (4) hours pay at the overtime rate July
22, 1985, for permitting and/or required an employee not covered by the agreement to perform service
1985, denying S. J. Fleming his agreement rights of Article 2(c)."
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.
On July 21 and 22, 1985, the claim dates involved in this dispute,
both Claimants were working as Train Dispatchers at Shreveport, Louisiana.
The Carrier and the Louisiana and Arkansas Railway have a joint train dispatching office at that loc
Arkansas Railway Trick Train Dispatcher positions on each shift, and a joint
Chief or Assistant Chief Dispatchers.
Form 1 Award No. 29311
Page 2 Docket No. TD-28673
92-3-89-3-128
On the dates in question, a vacancy arose on the second shift
Louisiana and Arkansas Trick Train Dispatcher position. There were no Extra
Train Dispatchers available. The regularly assigned second shift Carrier
Trick Train Dispatcher was transferred to fill the Louisiana and Arkansas
vacancy, and an officer in Carrier's engineering department, was used to fill
the resulting second shift Carrier vacancy. The Organization contends that
the first shift Carrier Train Dispatcher should have been assigned to work
four additional hours, and the third shift Train Dispatcher should have been
called to report for duty four hours early.
The record before this Board shows that the claims were denied by
Carrier's highest officer on November 11, 1985. Carrier reaffirmed its denial
of both claims on November 14, 1985. The last correspondence pertaining to
the instant claims is a letter from the Organization to the Carrier dated
November 23, 1985, indicating that the matter was being forwarded to the
President of the Association "for further handling in accordance with the
provisions of the agreement and the Railway Labor Act, as amended." No other
correspondence was exchanged between the parties until March 20, 1989, when
the Organization filed notice of its intention to file an Ex Parte Submission
with the Board in connection with the instant disputes.
At the outset, Carrier invokes the doctrine of laches as a bar to the
claims. It contends that a delay of nearly three and one-half years between
the final denial by the Carrier and appeal to this Board requires dismissal of
these claims. Carrier further argues that it had a right to assume after this
long period of time that the Organization had accepted its determination of
the issue. The purpose of the Act would be frustrated if disputes could be
held in abeyance and raised again at any future time, Carrier stresses.
The Organization advances no explanation for the delay of approximately three and one-half years
does it argue that extenuating conditions are here present. Instead, it
asserts that Carrier's position, based on the defense of laches, must be
supported by a showing of prejudicial harm or detriment. Absent such a
showing, the Organization submits that these claims must be sustained on the
merits.
This Board has carefully reviewed the numerous precedent Awards cited
by the parties. It is clear that the Board has frequently held that even in
the absence of contractual or statutory time limits, as here, failure of a
party to process a claim within a reasonable period of time generally bars
further consideration of the claim. Third Division Awards 8543, 8837, 10544,
13239, 13307, 13644, 25946. While there are several Awards which have reached
a contrary conclusion, it is our view that the majority, and the better reasoned decisions, are
Form 1 Award No. 29311
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92-3-89-3-128
states that one of the general purposes of the Act is "to provide for the
prompt
...
settlement of all disputes growing out of grievances
...
To
permit claims to slumber for an unduly prolonged period of time runs counter
to that expressed intent. Accordingly, we find that Claimants are now barred
from processing the instant claims before us.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 24th day of July 1992.