Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35723
Docket No. MW-34778
01-3-98-3-488
The Third Division consisted of the regular members and in addition Referee
Robert L. Douglas when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Southern
( Pacific Transportation Company (Eastern Lines))
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The ten (10) day suspension imposed upon Machine Operator R. E.
McKinley for alleged violation of Rules 1.1, 1.1.2 and 1.6 on
December 18, 1996 was arbitrary, capricious and on the basis of
unproven charges (System File MW-97-173/1069488 SPE).
(2) The claim as presented by Second Vice Chairman E. Posas, Jr. on
March 5, 1997 to Mr. D. W. Clark shall be allowed as presented
because said claim was not disallowed by Mr. D. W. Clark in
accordance with Article 15, Section 1(a).
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, the Claimant shall be allowed the remedy prescribed by the
parties in Section 7 of Article 14."
FINDINGS:
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.
Form 1 Award No. 35723 rr
Page 2 Docket No. MW-34778
01-3-98-3-488
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Article 15 (Time Limits for Presenting and Progressing Claims or Grievances)
provides, in pertinent part, that:
"Section 1 (a) All claims or grievances must be presented in writing by or
on behalf of the employee involved, to the officer of the Carrier authorized
to receive same within sixty (60) days from the date of the occurrence on
which the claim or grievance is based. Should any such claim or grievance
be disallowed, the Carrier shall, within sixty (60) days from the date same
is filed, notify whoever filed the claim or grievance (the employee or his
representative) in writing of the reasons for such disallowance. 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."
A careful review of the record indicates that the Director of Engineering Quality
Management sent a denial letter, dated May 2, 1997, to the Second Vice Chairman of
the Organization at the wrong address. Specifically, the letter contained an address in
LaGrande, Texas, whereas the Second Vice Chairman of the Organization whose
correspondence generated the May 2, 1997 letter had a mailing address in LaGrange,
Texas. In the absence of any independent evidence from the Carrier to prove that the
Organization had received the May 2,1997 letter, the Carrier perforce failed to comply
with the requirements of Article 15. The claim is therefore 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.
With respect to a remedy, Article 14, Section 7 limits any payment to the
Claimant to the working hours that the Claimant "actually lost" as a result of the
unsustained charge. In the present case, the record indicates that the Claimant
apparently had sustained an injury to his right shoulder, hip, and knees. In the absence
of any evidence in the record that the Claimant was physically able to work on the
relevant days, Article 14, Section 7 precludes a monetary remedy to the Claimant.
Form 1 Award No. 35723
Page 3 Docket No. MW-34778
01-3-98-3-488
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 24th day
of
October, 2001.
LABOR MEMBER'S CONCURRING AND DISSENTING OPINION
TO
AWARD 35723. DOCKET MW-34778
(Referee Douglas)
The handling of claims and grievances under the effective Agreement is governed by
Article 15, Section 1(a). Like most claim and grievance handling rules in this industry, Article
15. Section 1(a) specifies that if a claim or grievance is to be disallowed, the Carrier must notify
the
person filing the claim of the reasons for such disallowance within the time limits and if no
so notified, the claim or grievance shall be allowed as presented, without precedent as to the
parties contentions on the merits of the claim or grievance. Hence, the Board was correct to
sustain the claim based on the Carrier's violation of the time limits. In this case the Board held:
"*** In the absence of any independent evidence from the Carrier to prove
that the Organization had received the May 2, 1997 letter, the Carrier perforce
failed to comply with the requirements of Article 15. The claim is therefore
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."
With that said the Board should have ended its findings and directed the Carrier to pay the
claim as it was presented, which is in full compliance with the crystal clear language of the
Agreement. Sadly, the Board did not do so and set out to dispense its own version of industrial
justice. The last paragraph of the Award runs diametrically opposite to the clear and unambiguous
language of Article 15 Section l(a). The Majority's decision to limit the Carrier's liability is
simply unconscionable and renders this award palpably erroneous insofar as the remedy is
concerned.
Respectfully submitted,
.
Roy . Robinson
Labor Member