Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43791 Docket No. SG-44240 19-3-NRAB-00003-170335

The Third Division consisted of the regular members and in addition Referee Andria S. Knapp when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the CSX Transportation (formerly C&O, Chesapeake District):

Claim on behalf of D.S. Bradberry, for reimbursement of each of the four $129.44 pre-tax deductions Carrier withheld from his paycheck and for Carrier to provide confirmation that the Claimant was provided Railroad Retirement monthly credits for the months of August and September 2015, account Carrier violated the current Signalmen's Agreement, particularly the National Vacation Agreement, Addendum 2, Article 11, when it did not permit the Claimant to use two single vacation days on August14andSeptember 25,2015,whileonaMedicalLeave.Carrieralso violated CSXT Labor Agreement 15-029-09 when it failed to respond to the initial claim within the 60-day time limits. Carrier's File No. 2015

2419. General Chairman's File No. 15-134-CD. BRS File Case No. 15615-C&O (CD)."

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.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

At the time this dispute arose, the Claimant, D.S. Bradberry, was assigned to a Signal Maintainer position on C&O Maintenance Unit 7G29, headquartered in Hinton, West Virginia. Mr. Bradberry was on a medical leave of absence from Monday, August 3, 2015, until Monday, October 12, 2015. After receiving approval from his supervisor, Claimant took two single vacation days during his leave, on August 14 and September 25, 2015. On October 21, 2015, Claimant received a letter from the Carrier's Payroll Department, informing him that employees are only permitted to schedule vacation in weekly increments while on medical leave. His two vacation days were withdrawn. As a result, the Payroll Department stated, he had been overpaid $517.76, which would be deducted incrementally over four paychecks, at $129.44 per check. After Claimant received the October 21, 2015, letter and notified the union, the Organization reached out to the Carrier's Labor Relations Department in an attempt to investigate and resolve the dispute. Historically, according to the Organization, employees on medical leave had been permitted to take vacation in single-day increments, and the Claimant had done so during medical leaves in 2009 and 2014 without any problems.

The Organization filed this claim by letter dated December 10, 2015, contending that the Carrier had violated Addendum 2, Article 11, of the National Vacation Agreement when it reclaimed the two vacation days he had taken and been paid for. In addition to reimbursing Claimant the monies that were deducted from his paychecks, the claim sought reimbursement for the Claimant of $198.00 for the National Health and Welfare (NHW) cost sharing for the month of August, which he should have been paid as a result of having been compensated for a vacation day in August. The claim also sought verification that Claimant had been charged NHW for the month of September 2015 and, if so, similar reimbursement for him. Pursuant to the terms of CSXT Labor Agreement No. 15-025-09, paragraph (a), the Carrier has sixty calendar days to deny a claim, unless the parties have agreed in writing to an extension (Agreement No. 15-025-09, paragraph (f)). The Carrier responded by letter dated February 17,2016,referencingtheOrganization'sDecember10,2015,claimandstating that the time limits for the Carrier's response had been extended by mutual agreement. The Carrier declined the claim on the basis that there was no specific Agreement language that entitles an employee to schedule vacation while listed as an inactive employee on medical leave, and that the Organization had not provided evidence to show that the Claimant had been permitted individual vacation days while on medical leave in 2009 and 2014. Addendum 2 of the Agreement addresses employees scheduling five days of vacation at a time. The Carrier's response indicated that the issue of Claimant's retirement contributions was still under investigation. By letter dated April 13, 2016, the Organization responded and reaffirmed its original position, attaching documentation of the Claimant's prior single-day vacations during his medical leaves in 2009 and 2014. The Organization also stated that the Carrier had failed to meet the contractual time limits for denying the claim and that it should therefore be allowed. The Organization acknowledged that the Carrier had contacted the General Chairman about a time limit extension on February 8, 2016; the General Chairman informed the Carrier that he had not filed the claim and that its request would have to be made to the Local Chairman who filed it. The Carrier sent a request to the Local Chairman on February 9, 2016. On February 12, 2016, the Local Chairman sent an e-mail notifying the Carrier that the Organization did not agree to extend the time limits. The Carrier's response was dated February 17, 2016, and postmarked February 18, 2016, 70 days after the postmarked date of the initial claim. The Organization responded by letter dated June 1, 2016. Carrier reiterated that the parties were at a meeting off-site, where the General Chairman had verbally agreed to the Carrier's request for a time limit extension, which was later denied by the Local Chairman.

According to the Organization, the claim must be sustained because of the Carrier's failure to respond within the time limits set by the parties in the Agreement. There is no dispute that the claim was filed on December 10, 2015, and the Carrier's response was postmarked February 18, 2016, well over the 60-day time limit. If it was not going to be able to respond on time, the Carrier needed to obtain written agreement in advance from the Local Chairman, which it failed to do. The Carrier's claim that it had gotten a verbal extension from the General Chairman is not persuasive--the drafters of the Agreement required any extension on time limits to be in a written form in order to have proper documentation to support the extension, rather than one party simply claimingthattherewasatimelimitextensioninanattemptto furtherthedispute improperly. The time limits provision is self-executing and the claim must be allowed as presented.

The Carrier argues that the claim was properly disallowed and should not be sustained as presented, due to the extraordinary circumstances surrounding the delay in processing the Carrier's response: the claims specialist for BRS claims suffered a stroke on the job and was unable to complete the Carrier's response due to being hospitalized. The Carrier obtained a verbal extension of the time limits from the General Chairman, on which it relied in good faith. The Carrier could not have known that the General Chairman did not have authority to extend time limits for the claim. The Local Chairman's belated response denying the extension is inconsequential, because the parties had a verbal agreement to extend the time limits due to the sudden illness and hospitalization of the Carrier's BRS claims specialist.

CSXT Labor Agreement No. 15-025-09 states, in relevant part:

"a) All grievances or claims, including appeals of discipline, must be presented, in writing and postmarked, by the employee or on his behalf by a Union representative, to the designated Carrier officer within sixty (60) calendar days from the date of the occurrence on which the grievance or claim is based. Should any such grievance or claim be denied, the Carrier shall,withinsixty(60)calendardaysfrom thedatesameispostmarked,notify whoever filed the grievance or claim (employee or his representative) in writing of such denial. If not so notified the claim shall be allowed as presented. (Emphasis added.) . . . . .

f) All time limits in this agreement for a grievance or claim, including discipline, filed or answered by mail will be governed by the postmark provided by the United States Postal Service (USPS).

The time limits at any stage of handling may be extended by written agreement between the highest designated Carrier Labor Relations Officer and the Union representative. (Emphasis added.)"

The claim in this case was filed (postmarked) December 10, 2015. Per CSXT Labor Agreement 15-025-09, paragraph (a), if the Carrier wants to deny the claim, it has 60 calendar days to notify "whoever filed the grievance or claim (employee or his representative) in writing of such denial." If the Carrier does not notify whoever filed the claim, "the claim shall be allowed as presented." (Emphasis added.) In this case, the claim was filed by the Local Chairman for Local 89, Richard (Keith) Richmond. Accordingly, the Carrier's written response had to be sent to Mr. Richmond, as the Claimant's Union representative, within sixty calendar days, which was February 8,

2016. The Agreement also addresses, in paragraph (f), what happens if one side needs

an extension of the time limits: "The time limits at any stage of handling may be extended by written agreement between the highest designated Carrier Labor Relations Officer and the Union representative." (Emphasis added.) As claims progress through the claims procedure, different Union representatives are involved. In this case, the initial claim was presented by Mr. Richmond, the Local Chairman. The Organization's April 13, 2016, appeal of the original declination was filed by the General Chairman, William Duncan. The reference to "the Union representative" in paragraph (g) must mean the Union representative most recently involved. It would not make sense to have the Carrier ask for an extension of time limits from someone in the Organization who was not involved at that step in the claims procedure.

The record includes an e-mail dated February 8, 2016, at 3:27 P.M., from the Carrier representative to the General Chairman requesting an extension of time limits for this case. The General Chairman responded at 5:32 P.M. that he needed a file number. The Carrier representative e-mailed the file number on February 9, 2016, at 8:43 A.M. Unfortunately, the General Chairman was the wrong person to ask, as he informed the Carrier representative in his response, on February 9, 2016, at 9:42 A.M., that he needed to get agreement to an extension from the Local Chairman. At 10:05 A.M., the Carrier representative e-mailed the Local Chairman, requesting a 15-day extension. He acknowledged that the response was one day overdue, but explained that the claims specialist had been taken ill and hospitalized the preceding day. On Friday, February 12,2016,at8:02A.M.,thereisanothere-mailfromtheCarrierrepresentative to Local Chairman Richmond, stating: "I spoke to Bill Duncan [theGeneral Chairman] aboutthis,andhegrantedtheextension.Thewomanwhoprocessesthefirstlevel claims had a stroke, so it could not get out within time limits."

TheLocalChairmanrespondedtotheCarrierrepresentativeby e-maillaterthat same day, at 8:10 P.M.:

"I wasn't able response [sic] with your original email attachment, must have been a problem at my end.

My response to your email is as follows:

Mr. Bradberry contacted me on October 21, 2015, about the letter he had received from payroll notifying him of future deductions. After talking to payroll with no resolution I contacted you by telephone sometime the last week of October. You assured me that you would be back in touch soon with an answer. You didn't contact me so I finally emailed you on

November 2, 2015, copies of which are attached to the claim. We emailed back and forth several times before I had to take an unpaid day off work to file a claim on behalf of Mr. Bradberry because I had to file it with you within 60 days. That claim was mailed on December 10, 2015, and signed foronDecember14,2015.TheCarrierhad60daystorespondtomy claim which was at the close of business on Monday, February 8, 2016. You sent me an email on Tuesday,February 9, 2016 requesting an extension,at that time the time limits for you to respond had expired.

You have known about this issue since October and have had a written claim in your position [sic] since December 14. You've had ample time to respond, around 110 days to be exact. Therefore I must deny your request for an extension on the claim and request that the claim be allowed as presented pursuant to C&O Collective Bargaining Agreement Rule 59, 1(a)."

The parties agreed that any extensions to the time limits for filing or responding to claims would have to be in writing. One purpose for that agreement is to avoid what happened in this case, where miscommunication and confusion prevailed. The Carrier representative has long experience, and it is would be surprising if he did not know the correct person to ask for an extension. The circumstances surrounding the Carrier's request for an extension were sympathetic. But it is not the role of the Board to substitute its judgment for that of the Organization with respect to whether the time extension should have been granted. The Organization did not grant the extension. Accordingly, the Carrier's responded outside the 60-day time limit. The Board has no choice but to allow the claim as presented.

Regarding the remedy, the Claimant is entitled to be reimbursed for the two days' vacation pay that was deducted from his paycheck, subject to the two vacation days that were returned to him being charged against his vacation balance again. The record is not clear to the Board on whether the Claimant's retirement contributions were correctly charged or not, and the matter is remanded to the parties for further consultation with the Payroll Department and correction of any erroneous payments or charges.

AWARD

Claim sustained in accordance with the Findings.

ORDER

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.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 16th day of July 2019.