This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The single issue which must be decided in this case is whether the same Carrier officer who is designated to receive claims or grievances must also be the officer who issues the disallowance of such claims or grievances.
There is no dispute or argument relative to the facts in this case. A claim was initiated by the organization and was submitted to the Trainmaster who was the officer designated by the Carrier to receive such claims. The disallowance was issued in a timely manner, but was issued in the-name of the Division Manager - not the Trainmaster. At all levels of subsequent handling on the property, this claim was appealed solely on the basis of the alleged time limit violation. In fact, in its Submission to the Board, the Organization candidly stated, "The claim is being progressed solely on the procedural defect (Rule 37 violation) and the merits of the case will not be addressed."
For the first time at the hearing before the Board, the Carrier representative raised what was perceived by him as a jurisdictional issue. He argued that the Statement of Claim as submitted by the Organization to the Board contained no reference to the alleged time limits violation. Carrier contended that the Statement of Claim to the Board must, under the requirements of Circular No. 1 of the Board, "clearly state the particular question upon which an award is desired." In the absence of such specificity in this case and in light of the Organization's acknowledgment that the alleged time limits violation is the sole basis of appeal to the Board, Carrier argued that the Board lacked jurisdiction over the Statement of Claim as presented.
There is no question but that the Board has no authority to go beyond the issues which have been raised by the parties. Additionally, there is no question but that such issues should be incorporated in the Petitioner's Statement of Claim to the Board. Under other circumstances, such a situation would result in a summary dismissal of the entire case without consideration of any other aspects of the dispute. However, in this case, the alleged time limit violation was, in fact, the sole basis of appeal throughout the entire on-property handling of the dispute. Form 1 Award No. 30463
In addition, the Carrier, in its Submission to the Board, took no exception to the absence of a time limits contention in the Statement of Claim. While we recognize and accept the principle that a jurisdictional issue may properly be raised by either party to a dispute at any level of handling of the dispute, even before the Board (Third Division Awards 27575, 20832, 20165, 19527), we are not convinced that this particular dispute should be summarily dismissed on jurisdictional grounds. We will, therefore, address and rule on the procedural issues which were discussed and joined by the parties throughout the on-property handling of this case and continued in their respective presentations to the Board.
This Agreement language was adopted by the parties directly from Article V - Time Limits as found in the National Agreement dated August 21, 1954.
In its handling of this case, the organization contended that the initial claim denial by the Division Manager rather than the Trainmaster created confusion in and disruption to the appeals processes inasmuch as the Division Manager is the designated appeals officer for claims which are rejected at the initial level with the Trainmaster. It acknowledged that the line of arbitral precedent by Boards of Adjustment on this issue has not been uniform or consistent, but it relies in this instance on Third Division Awards 11374, 14031, 16508, 17696, 18002, 22822, 23943, 25092, 26572 and 27501 which, it says, represents the "weight of authority" on the premise that the responsibility for disallowing claims is coexistent with the authority to receive claims. Form 1 Award No. 30463
For its part, the Carrier argued that the specific, unambiguous language of the Agreement does not require that the same officer who is designated to receive claims must be the one who issues the denial of such claims. It contends that for the Board to create such a requirement, the Board would be changing the language of the Rule. This, it says, the Board is not empowered to do. Carrier too acknowledged that there is no unanimity of opinion by Boards of Adjustment on this issue, but it relies heavily on Third Division Award 27590 plus fourteen additional Aawards from the Second, Third and Fourth Divisions of the Board, some of which involved this same Carrier. These opinions, the Carrier argued, represent "the weight of authority" which holds that the Rule language requires only that "the Carrier" shall issue notices of disallowance of claims.
The Board studied each of the precedential citations offered by the parties. We have found the following:
On the other hand, however, there is a considerable body of precedent which has recognized that the parties who negotiated and agreed upon the language of Article V of the August 21, 1954 National Agreement from which Rule 37 is drawn, were sophisticated, experienced and skilled negotiators and they chose to use language which clearly did not in any way identify the individual who would be responsible for the disallowance of claims. Some Carriers chose to take that additional step on their own as evidenced by Third Division Awards 16508 and 27501. This Carrier chose to retain the words "the Carrier shall notify" from the National Agreement.
In Third Division Award 27590, which is the most complete, insightful and scholarly review of both sides of this issue thus far rendered by any Board of Adjustment, we read: Form 1 Award No. 30463
Award 27590 is, by reference, made a part of this Award and is dispositive of the instant dispute.
On the sole issue of whether, under the language of the controlling Agreement, the same Carrier officer who is designated to receive claims must also be the officer who issues the disallowance of such claims, the Board holds that on this property under the existing Agreement language the disallowance of a claim is required only by "the Carrier." This claim is, therefore, denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.