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 Organization filed claim on behalf of three furloughed Machine Operators for violation of seniority. It argued that the Carrier created three new Group 4 Machine Operator positions in Aberdeen, South Dakota, on January 6, 1997, and permitted junior employees to operate the machines, rather than recall the Claimants from furlough. Because the established positions on Seniority District 11 were in existence for more than 30 days and the Carrier failed to recall in order of seniority, the Carrier violated Rule 2 (Seniority) and Rule 9 relating to new positions of more than 30 calendar days' duration.
The Carrier on the property raised a procedural issue of time limits and argued initially that the Claimants were "junior to the employees the Carrier placed upon the positions." While this issue is contested in that the Organization maintains it is irrelevant as the central issue is the Carrier's failure to recall the Claimants from furlough, the issue of time limits is central. The Organization similarly argues that there was no time limit violation.
The Board reviewed the claim at bar. The claim was filed by letter dated March 3, 1997. It was received on March 4, 1997 and that date must be counted on this property as the first date under Rule 42A, which permits a claim to be proper if received "within sixty (60) days from the date of the occurrence on which the claim or grievance is based." The claim before the Board states that the Group 4 position was created on January 6, 1997. Form I Award No. 36423
The record in this dispute rests upon the occurrence on which the claim is based. The Organization filed its claim based upon January 6, 1997 and if that is the proper date, then this is a claim within the Rule and timely presented upon which the merits must be considered. However, the Carrier stated that the position was created earlier and presented payroll records to demonstrate that the Group 4 position was created on January 1,1997. The Board notes that the Organization acknowledges that the position was operated on District 11 on January 3, 1997. If so, that would bar the claim as late indicating 61 days. However, even a review of the record indicates that the payroll records demonstrate that the position was worked on January 2, 1997 and not January 6, 1997, as alleged by the Organization. We also note that the defense of the Organization is that Aberdeen, South Dakota, has both District 11 and 14 located within the same city and that they could not file a claim until it worked District 11, which was on January 6, 1997.
The Board is not persuaded that this is the case. We find no probative evidence to support that argument. Nor do we find rebuttal to the Carrier's position that ". . . the position was created on District 11 and was operated by District 11 employees at a date earlier than January 3, 1997." The evidence in this record is convincing that the date of occurrence was the date the position was created and said position was used on District li prior to the date of January 6, 1997 and prior to the date necessary for compliance with Rule 42. Accordingly, this claim was not timely filed and must be dismissed without consideration of merits.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 36423. DOCKET MW-35381
(Referee Zusman)
The Majority dismissed this docket based on the erroneous presumption that the claim had not been properly handled on the property by the Organization. Without rearguing the merits of the claim it is important to point out that the Carrier did not challenge the timeliness issue at the initial level of declination. Having failed to raise that issue at the initial level, the Carrier effectively waived its right to raise the issue at a later level of appeal. This Board has consistently held that the failure of either party to timely raise a procedural issue constitutes a waiver of any defense based on said issue. See Second Division Award 1552, Third Division Awards 11570, 12516, 27339, 33153, 33516 and Fourth Division Award 1839.
Moreover, a review of Award 36421 adopted this same date reveals the following concerning a continuing claim:
A review of the above-quoted findings reveals that the same issue was argued by the Carrier in that case and the same findings should have been held in this dispute.
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 Organization filed claim on behalf of three furloughed Machine Operators for violation of seniority. It argued that the Carrier created three new Group 4 Machine Operator positions in Aberdeen, South Dakota, on January 6, 1997, and permitted junior employees to operate the machines, rather than recall the Claimants from furlough. Because the established positions on Seniority District 11 were in existence for more than 30 days and the Carrier failed to recall in order of seniority, the Carrier violated Rule 2 (Seniority) and Rule 9 relating to new positions of more than 30 calendar days' duration.
The Carrier on the property raised a procedural issue of time limits and argued initially that the Claimants were "junior to the employees the Carrier placed upon the positions." While this issue is contested in that the Organization maintains it is irrelevant as the central issue is the Carrier's failure to recall the Claimants from furlough, the issue of time limits is central. The Organization similarly argues that there was no time limit violation.
The Board reviewed the claim at bar. The claim was filed by letter dated March 3, 1997. It was received on March 4, 1997 and that date must be counted on this property as the first date under Rule 42A, which permits a claim to be proper if received "within sixty (60) days from the date of the occurrence on which the claim or grievance is based." The claim before the Board states that the Group 4 position was created on January 6, 1997. Form 1 Award No. 36423
The record in this dispute rests upon the occurrence on which the claim is based. The Organization filed its claim based upon January 6, 1997 and if that is the proper date, then this is a claim within the Rule and timely presented upon which the merits must be considered. However, the Carrier stated that the position was created earlier and presented payroll records to demonstrate that the Group 4 position was created on January 1, 1997. The Board notes that the Organization acknowledges that the position was operated on District 11 on January 3, 1997. If so, that would bar the claim as late indicating 61 days. However, even a review of the record indicates that the payroll records demonstrate that the position was worked on January 2, 1997 and not January 6, 1997, as alleged by the Organization. We also note that the defense of the Organization is that Aberdeen, South Dakota, has both District 11 and 14 located within the same city and that they could not file a claim until it worked District 11, which was on January 6, 1997.
The Board is not persuaded that this is the case. We find no probative evidence to support that argument. Nor do we find rebuttal to the Carrier's position that ". . . the position was created on District 11 and was operated by District 11 employees at a date earlier than January 3, 1997." The evidence in this record is convincing that the date of occurrence was the date the position was created and said position was used on District 11 prior to the date of January 6, 1997 and prior to the date necessary for compliance with Rule 42. Accordingly, this claim was not timely filed and must be dismissed without consideration of merits.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.