Public Law Board No. 2778
PAR Brotherhood of -Maintenance-of-Way Employes
DISPUTE
: and
The Baltimore and Ohio Railroad Company
STATEMENT Carrier has violated the Schedule Agreement, particu
CLT1_M
: larly the amendment dated August 4, 1976 when it
failed to place the name of Thomas Maier on the -
Toledo East seniority track roster. He should be
granted a seniority date of September 3, 1976 with
eight hours pay for each from August 3, 1978 for
which he was deprived of employment and the differ
ence in pay for which deprived of employment due to
Carrier's violation of the August 4, 1976 Agreement."
FINDINGS
: Claimant filed a claim by letter of August 3, 1978
alleging Carrier breached Rule 52 (d) when he was
not permitted to exercise seniority rights on his
home division, Toledo East. The claim was denied
by Manager Engineering King's letter dated October
2, 1978; that letter pointed out that 52(d) pre- -
scribes that employes may exercise seniority on
PLB No. 2778 2 -
Award
No. 38
Case No.
84
their home rosters upon 15 days notice
"to the Foreman of the Regional
Gang and the Division Engineer
on their home division."
Manager King's letter of October 2 went on to -
state that:
"I have no record of your notice of
intent to assert your rights as
outlined in Rule 52(d) above. Your
claim is therefore not supported by
the Agreement and is declined in its
entirety."
Petitioner contends that the claim must be allowed
as presented inasmuch as Carrier failed to comply with Rule 50's
requirement that whoever filed the claim must be notified in writing
of its disallowance within 60 days from the date the claim is filed.
The envelope containing Mr. King's letter of October 2, 1978 was
not postmarked until October 10, 1978.
According to Carrier, reasonable care was taken by
Carrier to make certain that the October 2, 1978 letter would be
duly handled by the Postal Service and timely delivered. We find
no basis in this record for finding that Carrier acted in bad faith
or that the letter was not mailed by Carrier until after October 2.
Both parties have a right to rely on the regularity of the mail.
While the claim was filed by certified mail, there is no evidence
that the parties customarily used or had agreed to use certified
mail for their communications. It does not appear that Carrier had
anything to gain by delaying the mailing of its letter of declina
tion.
- - PLB No. 2778 3 _
Award No. 38 -
Case No. 84
In the light of the attending circumstances, Petitioner's time limit objection will be .overruled.
As to the merits of the case, the record fails to -
establish that claimant failed to give 15 days notice to the Manager-
Engineering of his intent to exercise seniority on his home roster
as prescribed by Rule 52(d). He voluntarily left his position with
the rail gang at that time in July 1978 and contacted Supervisor -
Thayer on his home district. He was advised by Thayer that there
were no openings available there.
Claimant nevertheless did not return to the rail
gang and lost his rail gang seniority. His seniority on the
Toledo-East roster was subsequently, on December 4, 1979, restored
by Carrier.
It also appears that claimant had no seniority on
the Toledo-East District in 1978, at the time he left his rail
gang and spoke to Supervisor Thayer about the possibility of an
opening in that District. His name did not appear on the 1977
Toledo-East Seniority Roster when it was posted. The 60-day period -
prescribed by Rule 10 for protesting the Roster expired on April 7,
1977, but protest was made by claimant until over three months subsequent to that date. His protest was manifestly untimely.
In view of all these factors, the lack of available
positions of the home district, inadequate notice under Rule 52(d)
and claimant's failure to file timely protest as to the absence
of his name from-the 1977 Seniority Roster, the claim must be
denied.
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Award No. 38
Case No. 84
AWARD: Claim denied.
Adopted at Baltimore, Md. 1,4 1984.
117
v
o d M. We to , Chairman
Carrier member Employe Member