Public Law Board No. 1187
Parties to Maine Central Railroad Cor ipany
Dispute: Portland Terminal Company
and
Brotherhood of Locomotive Enainecrs
c
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State' of Issue:
Shall the claims filed by the Organization on :larc:i
18, 1971, in behalf of E. H. Stevenson, on February 8 and
March 25, 1.971, in behalf of R. D. Lowe, Jr., on may 17, 1971,
in behalf of C. Y7. McLain and on October 28, 1?71, in behalf
of E. S. Carter, Jr., be docketed for adjudication by Public
Law Board No. 1187?
Findings:
The issue mentioned above has been presented for
determination to this Board, meeting with a duly appointed
Procedural Neutral.
Contrary to the Organization's position it is Carrier's
contention that four of the claims, all of which are time claims
are barred by Article 41 (c) of the Engineers Agreement, while
the fifth, which stems from a discipline case involving E. S.
Carter, Jr., must be dismissed under Article 18 Section 5 of that
Agreement.
Article 41 (c) prescribes that "all claims or grievances involved in 4 decision of the highest officer shall be
barred unless within six months from the date of said officer's
decision, proceedings are instituted by the employee or his
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duly authorized representative before a tribunal having
jurisdiction pursuant to law or agreement of the claim or
grievance involved."
Each of the four time claims in question was denied
by Carrier's highest grievance officer's letter of October
1, 1971. The only response to that letter according to the
record, received by Carrier during the six month period
immediately following October 1, 1971, was General Chairman
Currier's letter of November 28, 1971; it contains the
following statement:
"Please be advised that your decision
is not acceptable and the claim further
appealed in accordance with the current
Engineers' Agreement and the Railway Labor
Act as amended."
The critical question is whether the language just
quoted satisfies Article 41 (c)'s requirement that proceedings
must be instituted before "a tribunal having jurisdiction pursuant to law or agreement of the claim or grievance involved."
No Public Law Board having jurisdiction over the
claims in question was in existence at the time the claim were
filed or within the six month limitation period. There accordingly was no way in which the organization could institute the
claim before a Public Law Board before the six months expired.
Under the circumstances, we are satisfied that it is
not necessary that a Public Law Board be established within the
prescribed six months in order to comply with the terms of
Article 41 (c). A contrary interpretation would be unrealistic
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and could well result in restricting the use of Public Law
Boards, a result that does not appear to have been contemplated by any applicable legislation or agreement. We will
not presume that the parties intended in Article 41 (c) to
impose a condition in the processing of grievances that is
incapable of performance in many instances.
We therefore would have overruled Carrier's time
limt objection, even though proceedings had not actually
been instituted before a Public Law Board within the six
month period, if the organization had at least requested within
that time that a Public Law Board be established to consider
the five claims in dispute. Once such a request were made,
the burden would be on Carrier to cooperate in setting up the
Board and avoiding unreasonable delay in that regard.
General Chairman Currier's letter of November 28,
1971, did not ratisfy that requirement, however, by any
reasonable interpretation. That the Organization was aware of
the proper procedure to be followed in setting up a Board is
attested to by the fact that on June 23, 1972, Mr. Currier
did send Carrier a letter requesting that a Board be established
pursuant to Public Law 89-556 for adjudication of the five
cases. This request was untimely, however, since it was not
mailed until well after the six month period prescribed by
Article 41 (c) had expired.
The merits of time limit provisions are not before
us for consideration. When, as here, the parties have committed themselves to such a provision, it must be strictly
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and evenly inforced and we are not at liberty to modify its
terms or listort plain language in order to avoid its impact.
There is no question but that the vague language used in Mr.
Currier's letter of November 21, 1971, does not constitute
compliance with Article 41 (c) and that a contrary ruling
would enable the parties to delay proceedings and ignore
the realistic meaning of that Rule.
In the light of these considerations, we conclude
that the four time claims must be dismissed. We are persuaded that this decision is correct, although we recognize
that a ,contrary result was reached in an Award of Public Law
Board No. 774 issued on October 28, 1971, where a statement
in a general chairman's letter to Erie Lackawanna's highest
grievance officer that "as your denial is not acceptable, we
are therefore requesting the handling of this claim before
a tribunal having jurisdiction pursuant to law or agreement"
was held to be sufficient to toll a similarly worded time
limitation rule. The language is somewhat more specific than
that used in Mr. Currier's letter of November 21, 1971, but
even if the two letters were found to be substantially similar,
this Board is satisfied that its conclusions are sound for the
reasons mentioned in the foregoing discussion.
The fifth case listed by the organization involves
a claim for reinstatement of E. S. Carter to a January 8, 1947,
seniority date. Carter had been discharged for a Rule G violation and rehired on February 12, 1969, as a "brand new"
employee. While any question regarding seniority must be
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determined on its merits, the issue before us is a procedural
one involving a time limit objection.
Article 18 Section 5, the time limit rule for discipline cases, reads as follows:
"The Statute of Limitations
governing all
cases taken up with
management by the General Chairman
of Engineers shall be six months
from date of investigation."
Carter was deprived of seniority on March 17, 1966,
and no claim was made for the January 8, 1947, seniority date
until February 18, 1971, well over five years subsequent to
the date of investigation. The fact that a different labor
organization was Carter's bargaining representative prior to
that time does not alter the fact that Article 18 Section 5
has not been complied with in this situation. Both parties
have committed themselves to that provision and its terms are
definite and unambiguous and require that the fifth claim be
dismissed.
Award:
The five claims in question have not been timely
progressed and are barred by the time limitations of the
applicable Agreement. They will not therefore be docketed
for adjudication by Public Law. Board No. 1187.
Adopted at
.(r~,,
on arch:1G*1974.
Har%6Id M: Weston, Chairman
i . E. Hamilton, i " . P Carberry, _
,`C9rrrier Member Labor Member