The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.
The basic facts are not in controversy. Golden Grain Energy, LLC operated an ethanol plant in Mason City, Iowa. According to the contract in the record, it wanted to access the Carrier's track in the vicinity of its plant. Access required building some 2,700 feet of track on its property leading to the Carrier's track. In addition, Golden Grain Energy, LLC was to build a switch panel to connect its track with that of the Carrier and provide the switch panel to the Carrier for installation.
The contractor built the switch panel on June 15, 16, and 30, 2004, on land adjacent to the Carrier's property. The record suggests that the construction of the switch may have actually been partially on the Carrier's property. In any event, the work was done out in the open and in plain sight of the Carrier's employees.
(3n August 12, 2004, the switch panel was installed by Carrier forces with the assistance of two contractor employees. Form 1 Award No. 40801
The Carrier raised a procedural objection to the timeliness of the claim. As the foregoing Statement of Claim makes clear, the claim is for all hours worked by the contractor on the switch panel beginning on June 15, 2004. However, the Organization's claim was not dated until August 25, 2004. Rule 21 of the parties' Agreement reads, in pertinent part, as follows:
According to the Organization's contention in opposition to the Carrier's objection, because the switch panel was not installed until August 12, 2004, that date is the triggering date for the application of Rule 21. In the Organization's view, the claim filed on August 25 was well within the 60-day time limit.
The record before the Board establishes that the work in dispute was one overall project pursuant to a contract signed by Golden Grain Energy, LLC and the Carrier on April 9, 2004. This kind of project does not fit within continuing violation theory. It is further clear that the Organization is seeking to retroactively claim damages for the work that began on June 15, 2004. Under the circumstances, the Organization's contention that August 12, 2004, is the controlling date must be rejected.
Given the state of the record before the Board, we are compelled to find that the instant claim was not filed in compliance with Rule 21. As a result, we may not reach the merits and must dismiss the claim. Form 1 Award No. 40801
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
The Majority in this case incorrectly interpreted Rules 1 and 21 to arrive at an award based on a procedural issue that is in conflict with settled precedent of this Board. Given its erroneous findings and its conflict with established precedent, this award should be given no precedential value and treated like the anomalous outlier that it is.
This was a contracting out claim centered on Rule I work reservation in connection with the building of a switch. To be reserved under the language of Rule 1, work requires several express characteristics, one of which is that it be used: "in the performance of common carrier service". It was this characteristic that was the final element needed to establish work reservation in this case and thus making "all work in connection with" the switch reserved to Maintenance of Way employes
Rule 21 states a claim must be presented "within sixty (f0) days from the date of the occurrence on which the claim or grievance is based." The instant claim was centered on Rule 1 work reservation, so the Rule 21 "date of occurrence" was the date the work became reserved under Rule 1. Here, work reservation was ascertained with the installation of the switch on August 12, 2004 because that is the date the switch became used in the performance of common carrier service. Consequently, the Rule 21 "occurrence" was August 12, 2004, which was the FIRST date the work met all of the Rule I express characteristics of work reservation. The fact that the claimed work took place more than sixty (60) days prior to the last element of work reservation being established on August 12, 2004 is inconsequential, particularly here where it was undisputed that the Carrier failed to provide advance notice of the contracting and: "*** The Carrier knew well in advance that the contractor was going to perform this work. ***" (Employes' Exhibit "A-3").
The General Chairman laid out the situational facts that show a claim filed prior to August 12, 2004 would have been speculative and would not have contained all of the elements of Rule 1 work reservation. The pertinent part of the General Chairman's statement reads:
A proper analysis of the procedural violation in this case demanded exploration of the Organization's work reservation claims and the General Chairman's assertions that a claim could not be filed on speculation. However, an analysis of the General Chairman's assertions about the date of the "occurrence" is nonexistent in this award. The Majority did address the applicability of the continuing violation theory. But, there was never an assertion by the Organization that this case involved a continuing violation. The only discussion about the continuing violation theory was contained in the Carrier's submission in an out of context defense addressing such violations.
Previous board awards would have rejected this claim as hypothetical if it had been filed before all the elements of an actionable claim were established, yet this award rejected a claim as untimely, given that the Organization waited until all of the elements of an actionable claim were met. This Majority provided the Organization with a genuine catch-22 and an impossible situation. This award overlooks the work reservation language of Rule 1, misinterprets Rule 21 and is contrary to reasoned arbitral precedent. Therefore, I emphatically dissent.