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.
The issue before the Board involves five claims submitted under the dates of September 9, 17 and October 20, 1992. All of the claims involved allegations that the Carrier permitted employees foreign to the Agreement to perform Scope protected work. However, the merits of these claims were not addressed on the property. What stands squarely before the Board is a procedural dispute.
The facts are agreed upon. The Organization submitted each of these claims within the time frames of the Agreement and to the proper first level claims officer. It argued on the property that as each was sent certified mail and went unanswered, the Carrier was in default and each claim must be allowed as presented.
Although the claims were submitted under different dates in 1992, they were formally listed for a claims conference held on November 17, 1994. At that conference, the Carrier argued that each claim was properly denied at the first level. It presented the Organization with a letter denying each claim. The Carrier thereafter made two Form 1 Award No. 33417
arguments that stand properly before the Board. It argued that because the Organization failed to timely appeal the Carrier's denial, it was procedurally barred from doing so and secondly, that the claims are barred under the doctrine of laches.
Each of the parties to this dispute has come to the Board arguing a clear cut case of procedural violation. The Carrier argues that when the Organization alleged a failure of the Carrier to respond to the claims at the first level, it had an obligation to assert its rights immediately and not wait two years. The Carrier maintains that each denial went unanswered and attempts to revive the claims in 1994 are untimely. The Organization argues that the denial letters presented at the claims conference were never seen prior to November 17, 1994. During handling on the property, it requested any "verifiable, third party proof that the claims in fact [had] been answered timely." It denied that any of the claims had ever been answered.
The Board read and seriously considered all Awards presented by the parties. The Carrier's reliance is upon Awards that have held that when a Carrier later submits a copy of an alleged response sent by regular U. S. Mail, it is presumed to have been timely received, if properly dated and addressed (Third Division Award 18891; First Division Award 24490; Public Law Board No. 1605, Award 43). The Organization points to Awards holding that when the addressee argues that it did not receive denial by U. S. Mail, the burden shifts to the sender to prove it was received (Third Division Awards 31394, 31395, 31508, 31759). In particular, the parties dispute the relevance of Third Division Award 31208 with the Organization's Concurring and Dissenting Opinion, which was a dispute between these same parties and which found a time limit violation.
The facts at bar convince the Board that time limit violations occurred. The Organization filed a certified letter with the Carrier. The Carrier's presentation of letters of denial do not prove that they were timely written, mailed or received. This is particularly true in this record where after the Organization directly challenged the Carrier to prove that its "self-serving documentation" was timely sent, no persuasive evidence was presented. We focused carefully on the last days of this dispute on the property in which the Organization alleged on February 21, 1995 of Carrier's "selfserving" showing of letters of declination without further proof; the Organization's March 27, 1995 letter requesting allowance of the claims; the Organization's April 4,1995 Notice of Intent sent four days subsequent to the Carrier's receipt of the March 27,1995 letter; the Carrier's response of April 26, 1995; the attached January 10,1995 Form 1 Award No. 33417
letter from the Administrative Clerk indicating no knowledge of a timeliness issue with Carrier's denials sent to her office. We gave appropriate consideration to all the material to assure that the Carrier was not ambushed in a last minute attempt to avoid proper argument.
The Board is persuaded that disputes revolving around time limits are central to the progression of claims and must be resolved by the proof of record. The Organization's proof of claims sent to the Carrier by certified mail is uncontested. The burden shifted to the Carrier to prove that the declination letters were properly received (Third Division Awards 28504, 25309). Even if areuendo, the Board were to assign proper weight to the Administrative Clerk's letter with no rebuttal from the Organization, it would not suffice to persuade the Board that the local Carrier officer at the first level sent the letters (Third Division Awards 31394, 25309). A letter from the Division Engineer at the first level is not a part of the record. A letter sent by the Carrier with any form of follow-up proof of receipt is not in this record. We must find that absent persuasive proof we are left with untimely responses by the Carrier. We find no Agreement provision with language allowing us to hold that the Organization failed to timely progress. We also find that these claims are not barred under the doctrine of laches. Although laches includes undue and unexplained delay, the party asserting the doctrine of laches must demonstrate that the delay was inexcusable, unreasonable and prejudicial. Although the Carrier invokes the doctrine of laches, it failed to present any evidence to support its position. Accordingly, the claims are sustained as presented.
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.
CARRIER MEMBERS' DISSENT
TO
THIRD DIVISION AWARD 33417; DOCKET NO. MW-32317
(Referee Marty E. Zusman)
We like to think that more often than not, in the final analysis the majority of the Board's Awards are logical and make sense, whether the Carrier wins or whether the Carrier loses. This Award is one of those rare exceptions to that rule.
By concluding that the claims were not responded to by the Carrier as provided for in the parties' Time Limit on Claims Rule, i.e., Rule 16, the Majority ignored the facts of record established on the property and turned a "blind eye" to core principles of the Board.
The Organization alleged that the original claims were not timely declined and the Majority mistakenly agreed. During the on-property handling, this argument was confronted and the Organization was presented copies of the declination letters in conference as evidence substantiating the fact that the claims were timely declined.
The Majority's neglect of this and other evidence and its acceptance of the Organization's illogical approach to the claims handling process does severe harm to the established principles of the Board relative to resolution of minor disputes; hence, this Award is PALPABLY ERRONEOUS and has no precedential value.
A review of the record reveals that Vice Chairman, Secretary-Treasurer Randy L. Caldwell submitted five separate claims to Division Engineer M. D. Ramsey via Certified Mail (two dated September 9, 1992; one dated September 17, 1992; and two dated October 20, 1992.) It was not until November 7, 1994, i.e., more than two years later that General Chairman Jed Dodd informed Manager Employee Relations B. Claud Sweatt that the Organization had ". . . a number of claims for which we have no response from the first level claim officer." In Attachment "A" to such letter the General Chairman listed 16 claims, the oldest of which were the five claims presented to the Board in Docket MW-32317.
In Manager Employee Relations Sweatt's January 4,1995 response he confirmed that the five claims had been timely denied by Division Engineer Ramsey in 1992 and memorialized the fact that during the parties' November 17,1994 conference discussion of the alleged time limit default, Engineering Department Administrative Clerk Melody Stabler, a TCU represented clerical employee, furnished the General Chairman with copies of the Division Engineer's five responses that were addressed to Mr. Randy L. Caldwell, Vice Chairman, 1584 Principio Furnace Road, Perryville, Maryland, 21903. CARRIER MEMBERS' DISSENT
The Manager Employee Relations denied the Organization's appeal on the basis the claims were inappropriately submitted to the second level of the claims handling process because the Organization failed to timely appeal the subject matters to the second level officer. In addition, the Manager Employee Relations denied the untimely appeal on the basis the claims were barred under the doctrine of laches.
As the Majority noted at Page 4 of the Award, the Organization thereafter demanded ". . . verifiable, third party proof that the claims in fact [had] been answered timely." General Chairman Dodd insisted that the Carrier had ". . . the burden to produce a postal receipt or some other non self-serving documentation that the claims had in fact been responded to in a timely manner." This notwithstanding the fact that he acknowledged that his filing system was ". . . set up to open when there is a response from management" and conceded that such procedure was ". . . not a very efficient system and this experience has caused some reform in our filing systems." As prescribed by Rule 16, the Division Engineer mailed his declination letters to Mr. Caldwell's address because he was the Organization representative who submitted the claims. It was Mr. Caldwell's responsibility to either forward the Division Engineer's declination letters to General Chairman Dodd so he could "open" his file system, or to timely notify General Chairman Dodd that he did not receive responses from the Division Engineer at the same time he notified the Division Engineer that he had not received responses to his claims. There is no evidence in the record that Mr. Caldwell did either.
We are puzzled by this pronouncement because Division Engineer Ramsey's five declination letters (two dated November 11, 1992; one dated November 18, 1992, and two dated December 16, 1992) not only appear in the record as Attachment Nos. 1 - 5 of the Organization's Exhibit A-9, but also as CSX Exhibit "C," Pages 1 - 5.
Prior Board Awards have correctly stated the principle that in instances such as this the Carrier is charged with the responsibility of establishing that it mailed its declination letter(s) within the prescribed time limit, not that the Organization received the declination letter(s). Just because the Organization elected to submit the claims via Certified Mail and the Carrier elected to respond via regular U. S. Mail the Majority seems to be saying that no matter what proof the Carrier submits short of a Certified Mail Return Receipt is insufficient. This "logic" is preposterous!
First of all, the parties' Time Limit on Claims Rule does not require the parties to use Certified Mail. Secondly, as noted by the Majority, Administrative Clerk Melody Stabler, a disinterested third party TCU represented clerical employee with nothing to gain or lose, submitted a written statement into the record, which reads as follows:
Administrative Clerk Stabler's January 10,1995 statement, which was addressed to Manager Employee Relations Sweatt, was attached to AVP Employee Relations R. H. Cockerham's April 26,1995 letter addressed to General Chairman Dodd in response to his nine letters dated March 27,1995 (received March 31,1995) relative to the instant claims and others. For reasons known only to the Organization, neither Cockerham's letter nor Stabler's statement was included as an exhibit to its Submission. Giving the Organization the benefit of the doubt, we can only assume that the reason it did not include this critical correspondence in its submission to the Board was its ill-conceived interpretation that the on-property record was closed when it promptly submitted its April 4, 1995 Notice of Intent to file an ex parte Submission with the Board.
Not surprisingly, Rule 16, as set forth on Page 6 of the Organization's Submission, reads, in relevant part, as follows:
In order to find Paragraph (b) of Rule 16 one must look to either Page 6 of the Carrier's Submission, or its Exhibit "A." Rule 16 (b) reads, in relevant part, as follows:
Can it be that the Majority did not see the afore-quoted Agreement provision because it mistakenly relied on the Organization to place the entire Rule in evidence before the Board? There can be no mistake but that Vice Chairman, SecretaryTreasurer Caldwell was obligated to inform Division Engineer Ramsey within 60 days of the date he should have received his responses that he had not received same. In spite of the fact that such procedure has been historically followed in this industry since at least 1954 no such notification appears in the record before the Board. Again, it was not until November 7,1994, i.e., more than two years later that not the Vice Chairman, Secretary-Treasurer, but the General Chairman FINALLY informed not the Division Engineer, but the Manager Employee Relations that ". . . we have a number of claims for which we have no response from the first level claim officer." CARRIER MEMBERS' DISSENT
Furthermore, common sense dictates that while a_ sin le declination letter properly addressed to the Vice Chairman, Secretary-Treasurer may be lost in the regular U. S. Mail, it is inconceivable that five separate declination letters (two dated November 11, 1992; one dated November 18, 1992; and two dated December 16, 1992) all could be lost by the U. S. Postal Service.
From the perspective of a "Monday morning quarterback" it would appear that given the Majority's illogical conclusion, which effectively writes 75% of the parties' Time Limit On Claims Rule out of their Agreement, in the future the Division Engineer's office staff would be well advised to destroy any of the Division Engineer's claim files for which he does not timely receive a letter of rejection from the Claimant or his representative. By so doing, the Carrier could thereby preserve its doctrine of laches argument, for it could then undoubtedly prove that the Organization's ". .. delay was inexcusable, unreasonable and prejudicial."
For the foregoing reasons we strenuously dissent to this PALPABLY ERRONEOUS Award.