Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42332 Docket No. MS-41744 16-3-NRAB-00003-110406
The Third Division consisted of the regular members and in addition Referee Barry E. Simon when award was rendered.
(J. S. Miles, Jr.
PARTIES TO DISPUTE: (
(CSXT Transportation, Inc.
STATEMENT OF CLAIM:
"1.Claiming 3 days overtime pay at the rate of Savannah, Ga.
General Clerk's position 4J10-173, currently $196.40 per day straight time, account the carrier violated Rules 12, 18(f), 19(h), and 20(f), as well as others, of the SCL/TCU clerical collective bargaining agreement, when on the dates of September 6, 13, and 20, 2009, all Sundays, the carrier called an untrained and unqualified guaranteed extra board employee, A. B. Colson, ID XXXXXX, who had not observed his two contractually mandated, unassigned, not-necessarily-consecutive rest days during his workweek, to protect the Sunday 'tag' rest day of employee J. S. Miles, Jr.
2. The carrier shall now be required to pay claimant J. S. Miles, Jr., ID No. XXXXXX, three day's pay at the overtime rate of $294.60 per day, totaling $889.20, for the above mentioned violations."
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.
Award No. 42332 Docket No. MS-41744 16-3-NRAB-00003-110406 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
The Petitioner first asserts that the claim should be sustained because the Carrier failed to issue a timely denial. The Carrier responded that it received the claim dated October 12 on October 13, 2009. It contends the claim was denied at the local level by letter dated November 27, 2009. To support its position, the Carrier proffered a Certified Mail receipt indicating it was received by Debra Miles on December 2, 2009. Although the Carrier acknowledges that the receipt number differs from the number noted in the denial letter, it explains that it had issued several letters to the Petitioner, but had failed to update the number on this particular letter. Based upon the record evidence, the Board cannot find that the Carrier's denial of the claim was untimely.
With respect to the merits, the Board notes that the instant dispute is identical to the dispute decided by the Board in Third Division Award 41092, with the only difference being the dates of claim. Although the Board dismissed that claim on the grounds that the Petitioner had filed his claim untimely, it also opined that the claim, had it been timely filed, would have been dismissed on the merits. For the same reasons set forth in Award 41092, the Board finds that the Petitioner failed to satisfy his burden of proof that the Carrier was in violation of the Agreement. For this reason, the instant claim must be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 28th day of July 2016.