This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On June 27, 1990, Public Law Board 4381, Award 46 reinstated the Claimant from dismissal status under the following Award:
After unsuccessful attempts to reach the Claimant by mail, the Carrier wrote to the General Chairman on October 11, 1990 that it was "closing its files on the matter." Upon the General Chairman's request, however, the Carrier sent a further letter on October 23, 1990 advising the Claimant of his reinstatement, subject to the conditions in the PLB 4381 Award. There is a dispute, to be discussed further below, that the Claimant allegedly responded by letter dated October 29, 1990, stating in pertinent part as follows:
1991, the Organization initiated the claim here under review. The claim proceeded through the claim handling procedure, with declination by the Carrier's highest designated officer on April 23, 1992. At this point, the Organization requested and the Carrier granted a time limit extension until March 24, 1993.
On March 23, 1993, within the time limit extension, the Organization advised the Carrier that it wished to refer the claim to Public Law Board 4768. The Carrier declined to agree to listing the claim with PLB 4768, offering instead to refer the matter back to PLB 4381 for "interpretation." The Organization, in turn, did not agree with this suggestion, and on July 12, 1993 advanced the claim to this Board.
The Carrier now raises two procedural issues which, if supported, would find the matter not properly before this Board. The first is a contention that the Organization failed to meet the requirement of Rule 42.C that, within nine months of the highest designated officer's decision, proceedings must be instituted:
The Carrier notes the extended time limit of March 24, 1993 and the referral to the Board on July 2, 1993, "over three months after the Organization's time limit extension and almost fourteen months after the claim was denied by the Carrier's highest designated officer." The Carrier asserts that this makes the claim "fatally flawed."
The Board does not agree. The Organization referred the claim in timely fashion to PLB 4768. Rule 42.C discusses a Board of Adjustment "that has been agreed to." Since PLB 4768 was in existence, it is such a Board. Rule 42.C does not say that a particular dispute must be "agreed to." Contrary to the Carrier's view, there is no way the Organization would know in advance that the Carrier would refuse to docket this particular claim to an existing Public Law Board. Faced with this refusal, the propriety of which is not before the Board for resolution, the Organization chose simply to advance the claim to this Board. Form I Award No. 32386
The Carrier's second procedural point argues that the claim was not initiated within the required 60 days "of the occurrence on which the Claim . . . is based." The Carrier contends the "occurrence" was the Carrier's October 11, 1990 letter "closing its files on the matter."
This contention must fail on two counts. First, as pointed out by the Organization, it was not raised on the property. Second, it is inaccurate. The Carrier did not, in fact, "close its files", but rather kept the matter open by responding affirmatively to the General Chairman's request to send a further notification of reinstatement to the Claimant.
As to the merits, the Carrier argues that PLB 4381, Award 46 cannot be read to give the Claimant more than a "reasonable time" to respond to the reinstatement offer. Thus, the Carrier's position is that only by seeking an "interpretation" from PLB 4381 can it be determined if the Claimant had the right to wait 11 months to return to work.
The Board finds that the delay in offer to return to work is not the issue. According to the Organization, the Claimant wrote to the Carrier within six days of the Carrier's October 23, 1990 notification. Receiving no response from the Carrier, the Claimant assumed, again according to the Organization, that his request had been approved.
If the Carrier received this letter, the Claimant's proposed return to work was within its terms, since the Carrier failed to respond or to notify the Claimant of his termination of employment status. The question becomes, did the Carrier receive the October 29, 1990 letter?
The only available information on this question is the exchange of post-conference letters between the parties. On February 17, 1993, the General Chairman wrote to the Assistant Director, Labor Relations in pertinent part as follows:
The February 21, 1993 Assistant Director's response makes no reference to the specifics of this contention, other than to say "no such letter was received." The response does acknowledge that the Claimant made "two cursory calls" to the Carrier.
The evidence is convincing that the Claimant at minimum sent a timely response and quite probably that it was received. What is certain is that at no time did the Carrier write to the Claimant stating that his employment status was terminated.
The Carrier also refers to the Claimant's failure to meet PLB 4381's condition as to the Carrier's Employee Assistance Program. How this requirement could be met prior to reinstatement is not explained.
In its Submission, the Carrier stated that PLB 4381, Award 46 "found the discipline of dismissal was warranted." A careful reading of Award 46 does not support this conclusion. Award 46 partially sustained the claim before it by negating the dismissal action and directing offer of reinstatement with conditions. The Award here will support the Claimant's reinstatement with seniority unimpaired. Since the Claimant must share some responsibility in not following up on his October 29, 1990 letter, the Board finds that backpay is not warranted. The Award directs offer of reinstatement under the same conditions as provided by PLB 4381.
One further detail requires discussion. PLB 4381, Award 46 refers to the Claimant as a "Group 1" Machine Operator and directs reinstatement in that classification. The claim seeks his reinstatement as a "Group 2" Machine Operator. The Board assumes that PLB 4381 intentionally reinstated the Claimant as a "Group 1" Machine Operator, and this Board does not interfere with such intention. If the parties agree that Group 1 is appropriate (and was intended), the Award, of course, does not bar such classification.
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.
L;,3CR ME:15E=' S _DNCJ=RENCD .AND DISSENT
TO
~,1ARD ^386. DOCKET MtW-3'_413
Referee Marx)
The Board recognized that the crux of this dispute was the issue of whether z..^.e Carrier received the Claimant's October 29, =990 letter requesti-.9 additional time to attend to personal business before retur^:.,^.c to service following the issuance of Award 46 of Public Law Board No. 4381. In that letter the Claimant stated, "if this is got acceptable or if you have any questions please do not hesitate to :et me know." The Board quite correctly determined that the recora contained convincing evidence that, "... the Claimant at minimum sent a timely response and quite probably that it was received. What is certain is that at no time did the Carrier write to the Claimant stating that his employment status
was terminated." When .he Carrier denied the Claimant's request to return to service the toilowing year the instant claim was filed.
Labor Member's ~occurrenc° a-d hiss=_r.tWe submit shat the 3oard's failure to award monetary reparations in this :.-.stance represents a miscarriage of justice. 7ailure to award bacx pay is this instance does nothing but reward the Carrier for =is blatant efforts to stonewall the Organization's attempts to reach a timely resolution of this claim. In this connection, the award points out that the reason this dispute ended ~abor :'ember's _-.._____..__ ana Dissent
dispute teen ::lacea :n =-,bilc Law Board No. 4768 it would have been argued before -_~:ac 3oard as a part of the next scheduled pocket of cases, o.. ~.::~ _6, :993. Of the ten (10) cases argued on July 16, 1993: Five 3~ :ec_sicns were rendered on February 24,
Solely because If the =arrier's stonewalling tactics, the _rcanizacion was re au :red to 'take this claim to the :ARAB for resolution. The Or5anizat:cn -_led its notice of intent to the NRAB on July 12, 1993. T::e claim was docketed on October 15, 1993. A referee hearing was scheduled to be held on November 19, 1996 in the offices of the ~:RAB :n Chicago. At the request of the Carrier by letter dated November 4, 1996), the referee hea=ing was postponed until Marc- 1.3. 1997. The referee hearing was held on March 13, 1997 withcut a BN representative in attendance. This decision was finally rendered on December 30, 1997, over three (3) years after it shouijj have been resolved by this same arbitrator on Public Law Board No. 4768. Under the circumstances, it is simply Laeor P·'e7ner's _.,.._..___.nce and ^issent ;,ward 32386 :ace =our
CARRIER MEMBERS' DISSENT
TO
THIRD DIVISION AWARD 32386, DOCKET MW-31413
(Referee Marx)
Public Law Board No. 4381 Award 46 reduced Claimant's dismissal to a suspension. After several attempts to locate the Claimant over several months the Carrier was about to close the recor when the Organization requested that the Carrier make one last try. That was done and the Claimant responded on November 1. 1990.
While this Board has returned Claimant to the status he had immediately after the adoption of Award 46 of Public Law Board 4381, the real issue that was before this Board was what jurisdiction the National Railroad Adjustment Board had to dispose of the action taken by Public Law Board 4381. This Board does not have the authorization to review the actions of another arbitration forum. Any further determination of what was or was not contemplated in Award 46 should have been addressed to Public Law Board 4381. Even the matter here, raising the question of whether an individual can defer his return to service is a matter that should have been addressed to Public Law Board 4381 and NOT TO ANY OTHER FORUM.
This matter is one that grew out of the disposition made in Public Law Board 4381. At minimum, that is where the matter should have gone in the first instance. Not to another Public Law Board nor to this Board.
In Public Law Board No. 2529 Award 29 involving the SAME PARTIES as here, the matter of the Claimant's entitlement was returned to that Public Law Board for an Interpretation. In denying the Organization's claim, the Interpretation noted:
One point of evidence that the Majority seems to rely upon. it was the Carrier's consistent position on the property that it never received the alleged October 29, 1990 letter from the The Organization's late assertion that the Cattier admitted it had received the letter was specifica responded to 3 days later, ie., 'ho such letter was received" (pages 4-5 of the Award). To conclude from this that the Carrier probably did receive the letter (page 5 of the Award) simply defies logic DISSENT TO AWARD 32386