The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.
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.
Parties to said dispute waived right of appearance at hearing thereon.
By claim dated July 19, 1990, the Organization asserted a violation of the Agreement by the Carrier ' .. when on January 1, 1990 through July 19,-1990 and continuing, it failed to assign the duties and responsibilities of a B&B Foreman for Gangs 6827, 6828 and 6829 to Mr. Hector and instead assigned said duties and responsibilities to B&B Carpenter/Lead Workman E. J. Kennon .
thereby denying Claimant Hector of work and compensation he is entitled to by virtue of his established seniority."
The Carrier asserts the claim is untimely. The organization replies that the claim is of a continuing nature and therefore timely.
On the property, this issue has been resolved against the Organization. See Third Division Award 28826 (involving a February 23, 1987 assignment of a Welder Helper to fill a Foreman's position and a claim filed May 15, 1987 protesting that assignment with the Organization taking the position that 'the Claim reflected a continuing violation, since each day Carrier allowed the junior employee to remain in the Extra Gang Foreman's position, it violated the Agreement ... each day was a separate violation"): Form 1 Award No. 31043
Award 28826 is not palpably erroneous. Taken to its logical extent, under the organization's theory, the organization could have waited years to file a claim based upon the assignment in this case. Such a result would cause the time limits specified in Rule 49(a) to have little meaning.
The claim is therefore untimely under Rule 49(a) as it was filed on July 19, 1990, which is more than 60 days from the date of the occurrence-that date of occurrence being the date of the assignment, January 1, 1990. The claim shall be dismissed.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made. Form 1 Award No. 31043
LABOR MEMBER'S DISSENT
TO
AWARD 31043, DOCKET MW-30409
(Referee Benn)
In the instant case, the Carrier assigned a junior employe to fill the position of a B&B foreman rather than advertise and assign the position in accordance with the Agreement. The Organization filed a continuing claim in accordance with Rule 49(b) based on the continuing nature of the Carrier's violation. This Board has previously determined that this type of violation is a continuing violation as that term is used in this industry. For instance, Third Division Award 28744 held:
This same Majority has often expressed its regard for the value of the principle of stare decisis. The trouble with this Majority is that it often has trouble identifying which precedent awards are closely similar for the purpose of applying that principle. In the instant case, the claim involved the failure to advertise and assign a position in accordance with the requirements of the Agreement. Inasmuch as the dispute was nearly identical to that involved in the dispute decided by Third Division Award 28744, the Majority should have applied the principle of stare decisis based on Award 28744 and found the violation to be continuing in nature. However, instead of identifying an award in a similar dispute on which to base its decision, this Majority chose to search for a dismissal award in order to rationalize the dismissal of this claim. Contrary to the Majority's erroneous finding, the issue of whether the Carrier's failure to bulletin a vacancy is a continuing violation was not decided in Third Division Award 28826. In fact, that issue was not even before the Board. Instead, Award 28826 addressed a dispute over the assignment of an advertised position to a junior employe. The Board's rationale was that the award of an advertised position by bulletin is a specific act from which the claim flows, hence there is a definitive occurrence on which the claim is based and the sixty (60) day time limit starts from that date. Hence, aside from any determination of whether or Labor Member's Dissent
not Award 28826 was decided correctly, it is clearly not on point with the dispute under consideration here.
While the principle of stare decisis is laudable, it has value in cases before this Board only if the Majority is careful to apply it correctly by ensuring that the facts and issues involved in the dispute in the prior award are truly similar to those present in the dispute to be decided. The Majority in this case demonstrated an unconscionable disregard for the facts by citing dissimilar Award 28826 as a basis for its decision rather than identifying the nearly identical factual situation found in Award 28744 to correctly apply stare decisis and find the allegation of a continuing violation to have been properly made.
Inasmuch as the award cited by the Majority as a basis for its decision is inapposite and inasmuch as Award 31043 is contrary to the established precedent on the subject, yet does not find the precedent to be palpably erroneous, it is itself palpably erroneous and valueless as precedent.