Upon the whole record and on the evidence, the Board finds that the parties herein are Carrier and Employer within the meaning of the Railway Labor Act, as amended; that this Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.
The Organization contends the Carrier was obligated to fill and/or assign the position to the senior qualified available employe retaining "A" Machine Operator seniority within the Nashville Division on the Former L8vN Seniority District instead of the Atlanta Division employe from May 4, 2010 and continuing. The Organization cites Rule 24(b), specifically, "When a claim or grievance is not allowed, the carrier's highest designated labor relations officer will so notify, in writing, whoever listed the claim or grievance (employee or his union representative within sixty (60) days after the date the claim or grievance was discussed of the reason therefor. When not so notified, the claim will be allowed."
On the merits of the claim, the Organization points to Rules 1, 3, 4, and 11. The Carrier initially denied the claim describing it as "a very confusing claim that lacks enough detail to progress." It also asserted that at the time of the October 26, 2010 conference "the Carrier stated it was going to deny the claim on its merits." In a letter dated December 15, 2010, N. V. Nihoul, Director, denied the claim asserting the work was "performed on an emergency basis." The letter also reiterates the
On February 9, 2011, the Organization wrote to Mr. Nihoul claiming it had "not received a post conference letter from the Carrier."
It must be noted that the parties do not customarily use certified mail or other proof of mailing when they exchange claims and responses. Items mailed in the normal course of business are generally presumed to have been received. Although the Organization asserts that the denial letter is new evidence, nothing in the record identifies the December 15 letter as a new document.
As to the original defense, a majority of the Board agrees that the initial claim letter is confusing in that it seeks hours made by Mr. Bagwell in the first paragraph and refers to a machine operated by Mr. Moore in the second paragraph. The appeal to Director of Labor Relations Nihoul carries the error forward and again provides no further detail.
In Award No. 28922 (Docket No. MW-288'72) the Board agreed that "it is only reasonable that the Organization be required to specify which particular employees were adversely affected and under what circumstances." It also concluded "the Carrier's later failure to respond to the appeal is without significance, in view of the Claim's initial deficiency."
