Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 34143
Docket No. MW-34882
00-3-98-3-596
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:
(Burlington Northern and Santa Fe Railway Company
( former St. Louis-San Francisco Railway Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Gilbert Construction Company) to perform Bridge and
Building Subdepartment work [constructed two (2) bridges on line
segment 1047] at Mile Post 556.9A and Mile Post 557.9A on the
Avard Sub, Oklahoma Division beginning July 8, 1996 and
continuing (System File B-2629-1/MWC 96-11-04AD SLF).
(2) As a consequence
of
the violation referred to in Part (1) above, the
Claimants* listed below shall each be compensated at their
respective rates
of
pay for an equal proportionate share
of
the total
man-hours expended by the outside forces in the performance
of
the
work in question.
M. Nehring
A. Fields
D. Rollins
A. Birchfield
K. Monden
R. Haskins
F. Bowman"
J. B. Johnson
M. Cole
J. Pyle
B. Wilson
W. C. Rogers
F. W. Mears
Form 1
Page 2
FINDINGS:
Award No. 34143
Docket No. MW-34882
00-3-98-3-596
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
herein.
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
Parties to said dispute were given due notice of hearing thereon.
Before examining the merits or lack thereof
of
the claim here concerned, the
Carrier has raised a procedural issue contending that the claim was not presented to the
Carrier officer authorized to receive a claim in this instance within 60 days of the date
the alleged violation commenced.
Before the Board, for the first time, the Organization advances two arguments as
to why the claim was timely, thus the decision must be on the merits and not the
procedural. One argument being that because the first Carrier officer to whom the
claim was presented did not raise the issue of the untimely filed claim, the Carrier thus
abandoned the right to raise that defense and, secondly, the original claim dated
September 5, 1996, indicated in the heading that the claim was sent "via facsimile and
U. S. Mail" thus the facsimile was presented on September 5, 1996.
The Board rejects both arguments. The procedural issue was raised by the
Carrier when responding to the claim appealed to the highest designated official. Thus,
the procedural issue was raised on the property and reiterated before the Board. The
procedural argument was not abandoned.
Secondly, when the Carrier raised the late filing issue, the Organization never
rebutted the Carrier's argument. The Organization should have raised the facsimile
issue and should have advanced the abandonment argument on the property, but they
did not.
Form 1
Page 3
Award No. 34143
Docket No. MW-34882
00-3-98-3-596
The claim was not presented until September 9, 1996, seeking redress for an
alleged violation that commenced July 8, 1996. The claim has not been handled timely
and is before the Board improperly.
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.