SPECIAL BOARD OF ADJUSTMENT NO. 605
PARTIES ) Burlington Northern Inc.
TO TIC ) and
DISPUTE ) TC Division - BRAC
QUESTIONS
AT ISSUE: (1) To avoid loss of protection or any part
thereof under Article IV, were F. R. Gully,
A. J. Sundeen and A.
w.
Dixon, whose positions were abolished and who were unable
to obtain a position
which did
not require
a change in residence (within 30 miles),
required to obtain the
highest rated
position available to them requiring a change
in residence (more than 30 miles)?
(2) If the answer to the above question is in
the affirmative, shall carrier be required
to compensate
F. R.
Gully, A. J. Sundeen
and A. W. Dixon all preservation (guarantee)
of compei:sation due to each of them under
the terms of Article IV?
OPINION
OF BOARD: These claims were filed with the Disputes Committee by
letter of August 14, 1970. The history of the claims
on the property includes letters in November, 1968,
from the General Chairman to carrier's
highest officer
and a
response dated December 1, 1968, which stated, in part:
These claims are being investigated by
this office. Until such investigation is
completed, the claims are declined.
Subsequently, Carrier's officer denied each of the
claims on their merits in letters respectively of February 20,
February 27 and March 14, 1969. On March 26, the General Chairman responded, restating his position and requesting "your
AWARD N0..3 p0
Case No. TC-BRAC-114-:,°
reconsideration and advice." During the first week of April in
separate letters Carrier reiterated its denial of the claims.
There was no further handling on the property.
According to carrier, the claims must be dismissed
since the
organization has
not canplied with the time-limit
rules; it referred the issue to this committee far later than
nine months
after the highest officer had originally denied
them. The
organization raises
two defenses. one is that
Carrier itself did not act timely in its denial on the property,
and the other is that, in any event, since these are
continuing
claims they may be decided, although retroactivity would be
limited.
The December 1, 1968, denial was not in accordance
with the time-limit rules. It did not, as required, provide
"the reasons for such disallowance; but merely referred to an
investigation. The subsequent letters of Carrier did meet the
requirements for a denial with reasons, although they were sent
after the expiration of the mandatory 60--day period. However,
the Organization accepted the untimely answers without protest,
as it had a right to do. It thereafter continued the discussions
on the property by requesting Carrier
to
reconsider its position,
without making any reference to
+-Ile
4:5pi>>per Genial. Thn or.gK;ni-
zation filed its submission with
t'1<
0'.sputes Commit:.ee 16 mociths
,r
after Carrier's final denial on tire E·r,,=t:c:rty.
At no time did the organization on the property raise
the question of the timeliness of Carrier's answer. Hence, when
it filed its submission, the organization was obliged to comply
with the rules' nine-month requirement. Carrier, on the other
hand, has raised its objection to this untimely filing at its
earliest opportunity--when it made its reply to the Organization's
submission.
Carrier's objection to the organization's belated
filing gives the latter no right now to raise a qu.:stion about
the preceding steps on the property. That is where the entire
issue should have been resolved if, in fact, the
organization
had not accepted Carrier's delay in effectively denying the
claims.
These are
continuing claims
. Does that mean that
the
Organization may
therefore now obtain a ruling on their
merits from the Committee? An original filing of a claim may
take place at any time after the Carrier has first acted in a
continuing situation. Under Article V, Section 3, of the
August 21, 1954 National Agreement, retroactivity would then
-2-
V.TA:1,D NO.
3 O8
Case No. TC-B:ZAC-114- ;
be granted for no more than 60 days.
However, if the subsequent handling of a claim by
the organization. has been defective, there is no provision in
the rules making this applicable to the retroactivity aspect
of a continuing claim. For the claims themselves, as originally
filed, must be dismissed, if the time limits were e-ceeded and
Carrier did not waive its right to timely processing. this
leaves nothing for the Committee to consider, since nothing is
then properly before it.
Article V, Section 1(c) of the National Agreement
states:
All claims or grievances involved in a
decision by the highest designated officer
shall be barred unless within 9 months from
the date of said officer's decision proceedings
are instituted :;y the employee or his duly
authorized representative before the appropriate
division... (Underlining added.)
These claims are therefore barred and cannot be
revived. Many Awards of the Third Division have dealt with
the very issue and have reached the same conclusion (1.7030,
15757, etc.).
A '7 A ° D
Claims dismissed.
j
_iilton Friedman
Neutral Member
Dated:
July.U,
1972
Washington, D. C.