Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43918 Docket No. MW- 45345 20-3-NRAB-00003-190180

The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(National Railroad Passenger Corporation (AMTRAK)

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

(1)The Agreement was violated when the Carrier assigned outside

forces (Clark’s Concrete) to perform Maintenance of Way Track Sub-Department work (bust up and remove concrete roadway, forming, laying wire mesh, installing grade and pouring concrete and related work) north of the Tram Shop at the Beech Grove Maintenance Facility beginning on July 10, 2017 and continuing instead of assigning Beech Grove employes L. Scott, B. Gross, C. Douglas and A. Bean thereto (Carrier’s File BMWE-618 NRP).

(2)     The claim* as presented by letter dated September 8, 2017 to Plant Manager Amtrak R. Moriarty shall be allowed as presented because said claim was not disallowed by Mr. Moriarty in accordance with Rule 14.

(3)     The Agreementwas further violatedwhen the Carrierfailedto give the General Chairman proper advance written notice of its plans to contract out the work referred to in Part (1) above and failed to make a good-faith attempt to reach an understanding concerning said contracting as required by Rule 24.

(4)     As a consequence of the violations referred to in Parts (1) and/or (2) and/or (3) above, Claimants L. Scott, B. Gross, C. Douglas and A. Bean shall now ‘... be compensated for all hours worked by Clark’s Concrete at their respective straight and overtime rates of pay beginning July 10, 2017 and continuing until such time Clark’s Concrete isremoved fromthe property and Claimants are properly assigned to perform the work. ***’

*The initial letter of claim will be reproduced within our initial submission.”

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.

Claimants L. Scott, B. Gross, C. Douglas and A. Bean have established and hold seniority in the Track Sub-department. Beginning on July 10, 2017 and continuing, the Carrier assigned and permitted employees of an outside contractor, Clark’s Concrete, to perform concrete work in connections with a capital project at Beech Grove Maintenance Facility. This work continued until on or about July 24, 2017, when a water main break required additional and different work done by other contractors. The Organization is not claiming this emergency work here.

The Organization filed this claim on September 8, 2017, with Plant Manager Moriarty, asserting that the contracting out of work ordinarily and customarily done by its members violated the Agreement. On November 6, 2017, Senior Manager Steve Metz denied the claim on the merits, but made no objection to the way the claim was filed. The denialwasmailed to an outdated address for the Assistant General Chairman Beal. There is no evidence that Beal received the Carrier’s denial. Thus, on December 12, 2017, Beal appealed the claim and notified the Carrier that because it had failed to respond to the grievance within the sixty-day time limit, the claim was in procedural default and must be awarded as presented.Thereafter, on December 22, 2017, Manager Labor Relations Giulian replied, stating, “A review of this claim shows that it was answered timely by first level, but sent to your previous address of record. This claim is being remanded back to first level for handling.”

On April 10, 2018, the Organization appealed again, pointing out that although Giulian had “remanded” the matter back to the first level, the Carrier had not denied either the initial claim or the “remanded” claim. Thereafter, on June 6, 2018, the Carrier responded, asserting for the first time that the Organization had filed the initial claim with the wrong Carrier officer. The claim was also denied on its merits. As the parties were unable to resolve the dispute on-property, it is properly before this Board for final adjudication.

The claim implicates Rule 1-Scope which states, in part,

“While it is not the intent of the parties to either diminish or enlarge the work being performed in a territory under this Agreement, the work generally recognized as work ordinarily performed by the Brotherhood of Maintenance of Way Employees as it has been performed traditionally in the past in that territory will continue to be performed by those employees.”

The Organization contends that this claim must be sustained without reaching the merits of the dispute because the Carrier defaulted by failing to respond to the representative who filed it within the time period allowed under Rule 14 of the parties’ Agreement. The Organization contends that it provided proper notice of the Assistant General Chairman’s new address, so the Carrier had no excuse for failing to properly mail the denial. Furthermore, the Carrier failed to timely disallow the claimafteritwas purportedly “restarted.” Rule 14 states, in part:

“Should any such claim or grievance be disallowed, the supervisor shall, within sixty (60) days from the date same is filed, notify whoever filed the claim or grievance (the employee or the representative) in writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented.”

In addition, the Organization contends that, should the Board reach the merits of the claim, the Board should find in its favor, because the work in dispute is scopecoveredandtheCarrierassignedittoanoutsidecontractor.TheOrganizationcontends that it has shown that busting up and removing concrete roadway, forming, laying wire mesh, installing grade and pouring concrete and related work is generally recognized Maintenance of Way work ordinarily performed by the Carrier’s track forces. The Organization contends that even if the work could not be performed by the Carrier’s forces, the Carrier was obligated to first give notice to the Organization and conference with the Organization to identify the reasons why.

The Carrier contends that it timely responded to the initial claim, but inadvertently sent its response to the wrong address. The Carrier contends that this simple clerical error should not cause the claim to be paid. Further, the Carrier contends that the Organization’s initial claim was filed with the wrong Carrier officer and did not require any response.

With respect to the merits, the Carrier contends that it did not violate the Agreement because the work that was contracted out was part of a capital project and the Carrier did not have the necessary equipment to perform a project of this size. The Carrier also contends that the Carrier’s forces at this location do not regularly perform work of this nature. The Carrier contends that the Organization has failed to satisfy its burden of proof to show otherwise.

Before proceeding to the merits of the claim, this Board must address the procedural defects which are numerous and raised by both parties. First, the Carrier objects that the Organization failed to file its claim with the correct Carrier official and contends that the claim is, therefore, void ab initio. See, e.g., Third Division Award 25208. It presented a letter dated June 13, 2017, which listed the proper officials to receive first and second level claims. Plant Manager Moriarty, who was sent the claim on September 8, 2017, is not listed on the letter. The Organization argued that the onproperty record contains no evidence that it ever received this notice.

In Third Division Award 9684, this Board dismissed a claim that was filed with someone other than the officer who was authorized to receive it. We have reviewed this Award and find that it does not control the case before us. There, the Board expressly found no evidence of the Carrier’s waiver of the requirement. But, here, the Carrier’s official responded (to the wrong address) to the claim without objecting to the Organization’s misfiling.

Furthermore, after the Organization appealed and pointed out that it had not received the denial, the Carrier still did not mention that the claim had been filed initially with the wrong Carrier official. Under such circumstances, this Board concludes that while the Organization may have initially filed the claim with the wrong Carrier official, the Carrier waived this defect by failing to object before June 6, 2018, after the third level appeal and nearly nine months after the claim was filed.

As mentioned, the Carrier official timely denied the claim in a letter but sent the letter to the Assistant General Chairman’s previous address, although two months earlier, the Organization had notified the Carrier of his new address, which appears on the face of the filed claim. The Organization presented evidence that when the Carrier was asked to share the information, its officials replied, “Thanks, David. Noted and will do so.”

Because it did not initially receive the Carrier’s denial, the Organization appealed and asked that the claim be granted on procedural grounds. The Carrier argues that it made a good faith effort to comply and the Organization was able to reply to the denial. There certainly is precedent that a simple clerical error should not cause a claim to be allowed when a good faith effort to comply was shown. Fourth Division Award4602. There,however,theboardfoundthattheerroroccurredduetotheactions of both parties because there was no evidence that the Organization had notified the Carrier of the General Chairman’s new address. The on-property record here shows that the Carrier’s file and the letterhead contained the Assistant General Chairman’s new address, but the Carrier official did not send the denial there.

The Organization has amply demonstrated that the Carrier did not properly deny the claim within the 60-day time limit set forth in Rule 14. Inexplicably, even after the Organization pointed out the failure and the Carrier purported to “remand” the claim, it failed a second time to deny the claim within sixty days of the “new” appeal. The Organization raised the timeliness argument at its earliest opportunity and raised it again at each appeal. When the Carrier’s denial fails to comply with the specific

requirements set forth in Rule 14, the parties’ Agreement mandates that the claim shall be allowed as presented. Third Division Award 39957; Third Division Award 36047.

We therefore find because the Carrier failed to timely deny the claim, the claim must be sustained. This decision is based solely on the procedural violation by the Carrier and expresses no opinion on the merits of the claim.

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 28th day of January 2020.