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.
On June 29,1999, the Organization filed a claim on behalf of Claimant K. Atkins, arguing that the Carrier violated the parties' Rules Agreement when it failed to call the Claimant in connection with overtime that occurred on the Usher Position in the Customer Service Department in Philadelphia on May 1, 1999. The Organization initially argues that the Carrier's assertion that it never received the instant claim is a means of avoiding the need to respond to a claim and thwarting the payment of an overtime claim. By making this assertion, the Organization argues that the Carrier did not give reasons for ignoring the rights of a senior employee. The Organization goes on to maintain that when the overtime arose on May 1, the Carrier chose the more convenient and effortless way to fill the overtime assignment, by simply using an employee already working on the property, without regard for the principle of seniority.
The Organization also asserts that the overtime assignment at issue was an extra assignment, and under Article 6(a) of Appendix E, it therefore should have been offered to the senior qualified, available employee. The Organization maintains that the Carrier knowingly violated the Agreement when it used a junior employee for the overtime work when a senior qualified employee was available.
The Organization contends that there is no question that the instant claim properly was sent to the Carrier's General Supervisor's office. The Organization argues that either the Carrier refused to own up to its blunder when it used a junior employee on an overtime assignment, instead of calling in the senior employee, or it committed the careless mistake of allowing the claim to go without a response beyond Form 1 Award No. 36555
the 60-day time limit set forth in the last paragraph of Rule 7-B-1(a). The Organization asserts that there is no justification for the Carrier to ignore the Claimant's seniority rights; nothing in the parties' Agreement allows the Carrier to take the Claimant's seniority rights and assign such rights to a junior employee. The mere convenience of the Carrier does not justify bypassing the principle of seniority. The Organization then argues that the Carrier asserted that the claim never was received in order to eliminate costs by avoiding the payment of an additional eight hours of overtime. The Organization ultimately contends that the claim should be sustained.
The Carrier denied the claim. The Carrier contends that the Organization failed to properly file the instant claim. Moreover, the Organization did not submit any proof to the contrary. The Carrier further asserts that the instant claim is based on mere assertions and allegations, and the Organization has not proven that any Rule of the Agreement was violated. The Carrier maintains that the Organization has not identified which part of the Agreement was violated because it cannot do so. The Carrier emphasizes that there is no evidence in the record that the Claimant was available to perform the work that is the subject of this dispute. The Carrier points out that the Organization bears the burden of proof in this matter, but it has failed to meet that burden, so the claim cannot be given any serious consideration and should be denied.
The Carrier then argues that the Organization's request for a penalty payment is unjustified, given that no violation has occurred. Moreover, the Carrier maintains that compensatory damages are not due where no showing of monetary loss has been made. The Carrier argues that the amount claimed in this matter is clearly excessive, particularly because there are no penalty provisions within the Agreement. The Carrier ultimately asserts that the claim should be dismissed and/or denied in its entirety.
The parties being unable to resolve the issues at hand, this matter came before the Board.
First of all, the Board must address the argument of the Carrier that the claim was not filed within the appropriate time limit as set forth in the Agreement. The Carrier contends that although the claim arose on May 1,1999, and was written on June 29, 1999, the Carrier never received a copy of it. The Carrier contends that the claim is procedurally flawed because it was never presented to the Supervisor as stipulated in Rule 25(x) of the Agreement. However, a review of the record makes it clear that there is a claim dated June 29, 1999, and that it was appealed to the Division Manager along Form 1 Award No. 36555
with several other claims on September 15, 1999. On September 27, 1999, the Division Manager confirmed the receipt of the appeals of several claims, including the one at issue, and scheduled a conference for October 13, 1999. Apparently, the instant claim was discussed on October 22, 1999, and not until December 20, 1999, did the Carrier take the position that the claim was procedurally flawed and should be withdrawn from further consideration because it had never been presented to the Supervisor. The record reveals further that on December 30, 1999, the Organization appealed this claim to the next step. There was a subsequent conference on March 22,1999, and not until May 1, 2000, did the Carrier again deny the claim, stating that it had never been presented to the General Supervisor, but included, for the first time, a memo from the Supervisor stating that he had no record of the claim. That interoffice memorandum from the Supervisor was dated May 2, 2000, many months after the first discussion of this claim.
Although it is true that the Organization must present the claim in accordance with the Agreement, if a Carrier contends that the claim was not received, it must do so before several discussions of that claim have taken place and it should present evidence of failure to present the claim at its earliest opportunity. The Carrier failed to do so in this case. Consequently, based upon the Organization's presentation of the claim and its statement that it was mailed, the Board cannot deny the claim based on the procedural violation belatedly raised by the Carrier.
Turning to the merits, the Board reviewed the record in this case, and we find that the Organization met its burden of proof that the Carrier violated the Agreement by failing to call the more senior Claimant to perform overtime on May 1,1999. Article 6(A) of Appendix E reads as follows:
The Carrier in this case used a junior employee on the extra work assignment, and, relying on its procedural argument, never presented any evidence as to why it failed to call the Claimant, who was more senior. The Organization is correct that although it may have been easier for the Carrier to use the junior employee who is currently on the job, the Rules require that it make an effort to call in the senior employee to work the overtime assignment. The Carrier failed to do so in this case and, therefore, the Form 1 Award No. 36555
claim must be sustained in part. The Claimant shall be paid eight hours at the straighttime rate.
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.