Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 30887
Docket No. CL-30996
95-3-92-3-691
The Third Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
(Transportation Communications
( International Union
PARTIES TO DISPUTE:
(Delaware and Hudson Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the
TCU (GL-10909) that:
I. The following claim is hereby presented to the Company in
behalf of Claimant, J. Markley (861-91-DH026) that:
(a) The Carrier violated the Clerks' Rules Agreement
effective September 24, 1990, particularly Rules 12, 15,
44 and other Rules, when it disqualified Claimant
Markley, effective Match 8, 1991, from clerical position
symbol #48, based on his allegedly not being able to
perform a specified number of invoices on a daily basis.
The Carrier actions were improper due to the fact that
they do not have a piece meal or tonnage type of
agreement with this organization, to allocate work to its
clerical employes; and they failed to comply with the
previous agreement with this Committee to allow Claimant
Markley until March 11, 1991 to qualify for this
position.
(b) Claimant Markley now be allowed eight (8) hours pay
based on the pro-rata hourly rate of $13.24 per day,
commencing March 9, 1991 and continuing for each and
every work day thereonafter, on account of this
violation.
(c) That in order to terminate this claim, Claimant
Markley must be allowed to return to the involved
position and must be provided with the Carrier's full
cooperation in his effort to qualify for same. Further,
the carrier must remove the piece meal or tonnage type of
standards which they established on the involved position
or any other positions with similar standards, unless
otherwise agreed to by this organization.
(d) This claim has been presented in accordance with
Rule 28-2 and should be allowed.
Form 1 Award No. 30887
Page 2 Docket No. CL-30996
95-3-92-3-691
II. Claim of the System Committee of the TCU that:
The following claim is hereby presented to the Company in
behalf of Claimant J. Markley (861-92-DH001)
(a) The Carrier violated the Clerks' Rules Agreement
effective September 24, 1990, particularly Rules 12, 15
and other rules, when they disqualified Claimant Markley,
effective September 30, 1991, from clerical position of
Customer Service Clerk, Symbol #32, at a rate of pay
$13.64 per hour, located at D&H Corporate Headquarters,
Clifton Park, New York.
(b) The Carrier has failed to comply with the
requirement that they must provide, in writing, the
employs and Division Chairman the reason for
disqualification.
(c) Claimant Markley now be allowed eight (8) hours pay
based on the pro-rata hourly rate of $13.64 per day,
commencing September 30, 1991 and continuing for each and
every day thereonafter, on account of this violation.
(d) That in order to terminate this claim, Claimant
Markley must be allowed to return to the involved
position and he must be provided with the Carrier's full
cooperation in his efforts to qualify for same.
(e) This Claim has been presented in accordance with
Rule 28-2 and should be allowed."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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.
Form 1 Award No. 30887
Page 3 Docket No. CL-30996
95-3-92-3-691
Parties to said dispute waived right of appearance at hearing
thereon.
The organization contends that Carrier violated Rule 28-2 of
the Agreement when it failed to respond to the claims in a timely
manner. In its view, the claim should be allowed on the basis of
this 60 day time limit violation.
Carrier argues that it did not violate Rule 28-2 of the
Agreement. It asserts that the reply to the claim was handled in
the customary manner on the property within the time frame provided
in the Agreement.
We conclude that the Organization is correct in its assertion
that a response to a claim is due within 60 days, as required by
the Agreement. While it is clear from the March 9, 1992 letter
from General Chairman H.W. Randolph to General Manager T.F. Waver
that there were ongoing discussions this does excuse regarding in
a timely manner. After all, the organization was still waiting for
a response to its claims. Therefore, Claimant is entitled to
payment from March 9 to April 7, 1992 (the date of Waver's response
to Randolph). However, once denied, payment for violation of time
limits cannot be awarded. Therefore, the penalty must be limited
to this period of time.
Accordingly, and for the foregoing reasons, the claims are
sustained on procedural grounds alone to the extent indicated.
As to the substance of the claims, they are without merit. We
find that the organization has not met its burden on the merits.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 30887
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O R D E R
This Board, after consideration of the dispute identified
above, hereby orders that an Award favorable to the Claimant(s) be
made. The Carrier is ordered to make the Award effective on or
before 30 days following the postmark date the Award is transmitted
to the parties.
NATIONAL RAILROAD AQTUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 10th day of May 1995.