The Third Division consisted of the regular members and in addition Referee Edwin H. Berm 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.
As Third Party in Interest, the Brotherhood Railway Carmen, Division of Transportation Communications International Union was advised of the pendency of this dispute, but it chose not to file a Submission with the Board.
By claim dated March 19, 1993, the Organization asserted that during the period February 3 through February 26, 1993, three Carmen at the Carrier's Shoreham Shops were improperly used to paint various areas of the St. Paul Roundhouse. That claim further stated that 96 straight time and 202 overtime hours were expended by those employees. According to that claim, "(this claim is to be considered continuing in nature until such time as the dispute is resolved. Additional dates and hours will supplement this file as they become available." The claim was sent to the Carrier by certified mail and was received on March 20, 1993.
By letter dated March 30, 1993, the Organization referenced the earlier claim which "was to be considered continuing in nature until such time as the dispute is resolved" and further stated that ". . . you were advised that additional dates and hours worked by ... (the Carmenj would be subsequently supplied as they became available."
By letter dated May 24, 1993, the Carrier's Division Manager referred to the letters of March 19 and 30, 1993 and denied the claim.
The allegations in the March 19, 1993 letter must be sustained as presented. Rule 47(1)(a) states in pertinent part: Form 1 Award No. 32422
The Carrier's May 24, 1993 disallowance of the March 19, 1993 letter which had been received by the Carrier on March 20, 1993, exceeded the 60 days permitted in Rule 47(1)(a). There is no discretion in the negotiated words "shall, within 60 days from the date same is filed, notify whoever filed the claim . . . of the reasons for such disallowance" and "]i]f not so notified, the claim . . . shall be allowed as presented ...." [emphasis added]. No matter how we feel about the merits of the claim, the Board has no authority to change the language of Rule 47. The fact that the Organization stated it would update the Carrier concerning additional hours does not relieve the Carrier from the very mandatory language of the Rule. We therefore have no choice with respect to the hours claimed in the March 19, 1993 letter. Because the claim was not timely denied, those hours must be paid as requested.
However, Rule 47(1)(a) does not make the sustaining of the March 19, 1993 allegations precedential ("If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances"). We can therefore address the merits of the supplemented allegations in the Organization's March 30, 1993 letter.
The Organization has not carried its burden on the supplemented allegations found in the March 30, 1993 letter. The Scope Rule does not reserve painting work exclusively to the Organization's members and the record does not establish that the Organization's members have historically performed this type of work. See Third Division Award 27880 between the parties ("Without an express reservation of work guaranteed to them by contract, the Organization was obligated to show that its members have historically performed the work"). On the contrary, the Carrier has shown that its Carmen have performed similar painting. Third Division Award 27762 between the parties and Awards cited therein (Carmen painting portions of buildings at different locations). Form 1 Award No. 32422
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.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD ·2422, DOCKET MW-32145
Referee Senn)
The Board correct; found that the Agreement was violated when the Carrier failed to answer the claim within the time limits set forth within the Agreement and a limited concurrence is in order. The fact that there was a supplemental amendment to the initial claim should not Zave .iscracted the Majority from applying the proper precedent Ln ~!:;s :ase. However, the Majority held:
There are two Z) terrors in the Referee's statement cited above. First, the _ssue of the work not being reserved to the Maintenance of Way employes is patently wrong. If the Majority would have taken the time to read the Organization's submission, it would have been hard to miss the fact that beginning on Page 3 and continuing through Page a we laid out the history of this dispute on this orovertv under the applicable Agreement. There have been six (6) awards rendered concerning aliens to the Agreement being assigned the work oz painting the Carrier's bridges, buildings and structures rather than assigning such work to Bridge and Building (B&B) employes. The final award on the subject was Award 19152 rendered on April 22, =972, which held:
In the final award =iced above (Award 19152), the Board held that the principle Df "scare decisis" is applicable when the Carrier assigns the work of painting to other than employes of the B&B Sub-department.
The issue had been resolved and insofar as the Organization was concerned it was a settled issue. Then, without any notice, Carrier unilaterally violates the edict of the Board that the work belongs to the Maintenance of Way employes and assigned the work at issue here to Carmen. To justify its decision, the Majority commits its second fatal error. Rather than app'_ _. :: ? --::e
stare decisis, the majority applied the '::e X00 Line Maintenance of Way Agreement.
cn the SOO Line side, under the SOO ,ras some evidence of Car Shop employes
the is the the and
Inasmuch as the Board had determined reserved to the B&B employes, the
Majority's decision ::ere .s not grounded in sound reasoning and is worthless as precedent. We submit that the majority erred when it denied the suppleme^=a_ -!aim based on improper precedent.
