This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant C. F. Walton established seniority in the Maintenance of Way and Structures Department. At the time this dispute arose, the Claimant was assigned to Gang TP-11 and was attempting to qualify as a Mark IV Tamper Machine Operator.
On February 9, 1998, the Organization wrote to the Division Superintendent claiming that the Claimant ". . . was unjustly treated on February 6, 1998 when Roadmaster Briscow did not give enough time and opportunity to qualify on Mark IV Tamper . . . ." The Organization requested that the unjust treatment cease, that the Claimant be allowed to qualify on the machine, and receive any difference in pay. The Organization further requested that an Unjust Treatment Hearing be held in accordance with Agreement Rules 23C and 62 of the Agreement between the parties.
In a second letter, dated March 9, the Organization informed the General Director Labor Relations that the Division Superintendent had failed to respond to the February 9, 1998 correspondence. According to the Organization, the Division Superintendent violated the Agreement when he failed to schedule the requested Unjust Treatment Hearing within the time parameters set forth in Rule 62. The Organization requested that the Claimant be "immediately permitted" to qualify on the Mark IV Tamper and be compensated any difference in pay.
The Carrier denied the claim asserting that the February 9, 1998 request for an Unjust Treatment Hearing was not properly submitted to the Claimant's "immediate supervisor."
The record evidence demonstrates that on February 6, 1998, the Claimant was disqualified from the Machine Operator position on the Mark IV Tamper. Three days later, on February 9, 1998, the Organization sent the Carrier correspondence in which it requested an Unjust Treatment Hearing. The Carrier did not respond to that request, later asserting that the Division Superintendent was not the Claimant's immediate Supervisor, and therefore, not the proper Supervisor to receive the request.
Notably, the Carrier did not dispute that the Division Superintendent received the Organization's claim and request; nor is it disputed that the Carrier was aware of the Claimant's desire to have an Unjust Treatment Hearing. However, the Carrier made Form 1 Award No. 35916
no attempt to inform the Organization or the Claimant of the apparent error, nor did the Carrier identify the proper Carrier Officer to whom the request could be made. In these circumstances, it is clear that the Carrier's actions or rather lack thereof, deprived the Claimant of a valuable contractual right and violated the intent of the Agreement between the parties.
In accordance with established Third Division precedent and consistent with Decision 16 of the National Disputes Committee, ". . . this claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Company as to other similar claims or grievances." In these circumstances, damages are awarded to the date of the Carrier's belated denial to the Organization's initial claim letter of February 9, 1998. There is no evidence in the record to show that the Claimant had successfully qualified.
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 efective on or before 30 days following the postmark date the Award is transmitted to the parties.
CARRIER MEMBERS' DISSENT
to Award 35916 (Docket MW-35558)
(Referee Murphy)
The Carrier accepts that this particular claim is settled. However, inasmuch as the Award's rationale runs counter to the plain language of Rule 62 of the Collective Bargaining Agreement, the Carrier feels that a Dissent is necessary.
From this Award, it appears that the Majority of the Board was offended by the failure of the Carrier's local Division Superintendent to extend the courtesy of responding to the Organization's invalidly filed request for an Unjust Treatment Hearing. By the erroneous opinion of the Majority that courtesy rises to the level of contractual obligation. There is no basis for such a conclusion.
It is undisputed that this claim and the request for the Unjust Treatment Hearing was improperly filed with the Superintendent, in contravention of the specific requirement contained in Rule 62 quoted at page 3 of the Award. The Organization never denied that it was in violation of its contractual duty under the plain language of Rule 62 to file with the Claimant's "immediate superior"-not the Division Superintendent, who is several levels above the Claimant's immediate supervisor.
But the Majority nonetheless decided that the Carrier was somehow obligated to help the Organization cure its defect. The opinion, however, runs contrary to the overwhelming number of precedent Awards that hold each party accountable for its own procedural errors in claims handling.
Absent a contractual provision to the contrary, the Carrier was under no contractual obligation to right the Organization's error. The Organization is just as sophisticated as the Carrier in it's knowledge and understanding of the procedural requirements. The deficiency was pointed out to the Organization on the property but was ignored by them until its Submission. Certainly the Organization knew the difference between the Claimant's "immediate supervisor" and the Division Superintendent. Such is not merely a typo!