February 7, 1965 Job Stabilization Agreement effective on January 1, 1980, was displaced from her regular position on or about May 5, 1986. Since she held insufficient seniority to obtain another position, Claimant was reduced to off-in-force-reduction status. Claimant filed a Rule 14-B notice indicating that she was available to perform extra work and fill short vacancies. She also notified the Carrier that she would accept recall to any position on her seniority district. More importantly, Claimant reminded the Carrier that she could not fill a Grade 3 position or perform Grade 3 work due to a prior back injury. Beginning on April 18, 1985, claimant's personal physician had restricted Claimant from performing Grade 3 work or
While the record is unclear, Claimant apparently performed extra work and filled temporary vacancies during may and June, 1986. The Carrier paid her protective guarantees for May and June, amounting to $627.68 and $706.17, respectively. Since Claimant's daily protected rate was $103.44, she obviously performed some compensable service during the two months. Subsequently, the Carrier recovered the sums paid to Claimant in May and June, 1986 and denied her applications for protective benefits covering July, August, and September, 1986. The Carrier relied on Article IV, Section 5 of the February 7, 1965 Job Stabilization Agreement, contending that Claimant's physical disqualification from Grade 3 positions was tantamount to a disability. The Organization responded that the Carrier's interpretation of Article IV, Section 5 was overly broad because the provision permitting the Carrier to suspend protective benefits was intended to apply to those disabilities which prevent an employee from coming to work. Furthermore, the Organization charged that the Carrier could not show that Claimant failed to work on any day because nothing but Grade 3 positions or Grade 3 work was available to her.
Claimant's physician removed the medical restriction some time during September, 1986. Thereafter, the Carrier restored Claimant's protective benefits for the succeeding months but it
reaffirmed its refusal to pay her protective benefits covering May through September, 1986.
On December 23, 1986, Claimant voluntarily resigned from service in exchange for a lump sum payment. Claimant signed a release stating:
Upon executing the release, Claimant waived any rights she had against the Carrier as of December 23, 1986, which would include the claim herein. NRAB Third Division Award No. 26206 (Vernon). NRAB Third Division Award No. 20832 (Sickles). Special Board of Adjustment No. 570, Award No. 680 (Vernon). Nonetheless, the organization argues that this Board should disregard Claimant's resignation and release because the Carrier's final declination of the claim on the property, dated January 9, 1987, did not allude to Claimant's December 23, 1986 release. While the Carrier should have raised the issue of the release in its January 9, 1986 correspondence, the defect was not fatal. Either party can raise a challenge to this Board's jurisdiction at any time because the issue of jurisdiction cuts directly to the fundamental power of this Board to adjudicate a dispute. Claimant triggered the claim by filing an application for protective benefits for July, August and September, 1986.
John '8. LaRocco
Neutral Member