Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 34140
Docket No. MW-32456
00-3-95-3-355
The Third Division consisted
of
the regular members and in addition Referee
Robert L. Hicks when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim
of
the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned junior
employe D. Foley to perform machine operator duties (operating a
yard sweeper) on the Mingo Junction Subdivision beginning
January 10, 1994 and continuing, instead of recalling and assigning
senior furloughed Machine Operator R. Goosby to perform said
work (System Docket MW-3408).
FINDINGS:
As a consequence of the above-stated violation, furloughed Machine
Operator R. Goosby shall be allowed ` . . . 10 hours per day, all
overtime, credit for day and month, to be made whole."'
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 were given due notice of hearing thereon.
Form 1
Page 2
Award No. 34140
Docket No. MW-32456
00-3-95-3-355
The Claimant was a furloughed Machine Operator. In January 1994, the Carrier
assigned a junior furloughed Machine Operator to work operating a Yard Sweeper.
On April 1, 1994, the Organization filed claim seeking redress retroactively to
January 10, 1994, account the Carrier using an employee junior to the Claimant to
operate the Yard Sweeper.
At first, the Carrier denied the claim solely on the merits contending the Claimant
was not qualified to operate the Yard Sweeper.
There exists a certification card referenced as an MW-200 card which lists all the
machines an individual may operate, with various Supervisors initializing the machine(s)
which the employee is qualified to operate.
When the Organization disputed the Carrier's position that the Claimant was not
qualified, it stated that he had the MW-200 card properly marked attesting to the
Claimant's ability to operate the Yard Sweeper.
The Carrier Officer authorized to handle claims on the final appeal rejected the
claim with only one argument that the claim had not been timely presented within 60
days
of
the date
of
the occurrence upon which it was based.
The Organization, following the final appeal officer's declination, never
responded thereto, but did progress same to this Board.
The Organization, before the Board for the first time, raised two defenses to the
Carrier's argument relative to the claim being barred, but because neither was raised
on the property, they are de novo arguments and we must not consider them, because
to do so would violate Circular No. 1
of
the Board.
The argument about this being a continuing claim should have been advanced
shortly after the last Carrier Officer raised the procedural issue, and the issue
of
a too
late time limit argument raised at the final appeal level should also have been raised.
The claim
of
April 1, 1994, seeking redress retroactively until January 10, 1994,
was not filed within 60 days
of
the date the alleged Rules violation occurred, and no
Form 1
Page 3
Award No. 34140
Docket No. MW-32456
00-3-95-3-355
defense can be considered as being abandoned unless the party who raised an issue on
the property chooses not to further that same issue before the Board.
The Carrier raised both the time limit argument and the merit issue on the
property and before the Board. (See Award 22 of Public Law Board No. 3775; Third
Division Award 31293). Neither was abandoned nor untimely raised.
The claim is improperly before this Board as it was not filed within 60 days of the
date upon which it was based.
AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of June, 2000.