PUBLIC LAW BOARD NO. 3510
UNITED TRANSPORTATION UNION
and
CSX TRANSPORTATION, INC.
(Former Chesapeake & Ohio Railway-Proper)
AWARD NO. 113
Carrier File No. 4(89-3049)
Organization File No. NG-28845
STATEMENT OF CLAIM
Claim of the following employees for various
amounts which the carrier is recovering as an over
payment. These employees are under Washington Job
Protection Agreement of May 1936 due to the closure
of Gladstone Yard, Gladstone, Virginia, May 25, 1985.
Name ID
C. W. Robertson, Jr. 70955
G. K. Martin 45146
W. F. Burge, Jr. 41031
C. P. Coleman 70977
W. E. McCormick 75308
P. H. Bugg 131040
J. G. Martin 45143
M. G. Martin, Jr. 72733
F I N D I N G S
The Claimants herein were placed under the Washington
Job Protection Agreement of May 1936, owing to closure of
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Award No. 113
Page 2
Gladstone Yard on May 26, 1985. On September 15, 1997 the
Cdrrrer advised the Claimants that their payments
,.-Ld
be increased based on the wage changes granted by the October
31, 1935 UTU National Agreement.
On August 2, 1989 -- some 23 months later --- the Carrier
advised the claimants as follows:
An audit of protective benefits (guarantee
payments) reveals that your monthly guarantee has
been increased through error. Due to the discontinuance of the last yard assignment at Gladstone,
Virginia, your monthly guarantee was initially established in the amount of . . . .
Article 7(a) of the May 1936 Washington Job
Agreement makes no provision to increase the established amount. As the result of this error, you
have been over compensated in the amount of . . . .
The . . . . overpayment will be deducted in ten (10)
monthly deductions of . . . .
The stated deductions were then commenced and continued
over a ten-month period.
On September 27, 1989 a claim was initiated, arguing
that "recovery of overpayments is not supported by any rule
of the Yardman's Agreement, nor are there any provisions
for recovery in the Washington Job Protection Agreement of
May 1936". The Organization agrees, however, that the increases granted commencing in 1987 were not required by the
Washington Job Protection Agreement.
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Award No. 113
Page 3
Reference is made throughout the claim handling procedure to Rule 54, Time Limit Rule, which provides that claims
musL be presented "within sixty days from the date of the
occurrence on which the claim . . . is based". The Organization's claim of September 27, 1989 was timely in that it
was made within 60 days of the "occurrence" (that is, the
notification of forthcoming pay deductions). Likewise, the
claim was progressed in timely fashion, despite the fact
that correspondence was simultaneously under exchange between
the General Chairman and the Senior Director, Labor Relations.
The question arose as to whether the Carrier, in seeking
repayment, was also bound by the Time Limit Rule. Public
Law Board 2857, Award No. 1 (Blackwell) explores this question
in detail and concludes that "there is no basis on which
to hold that the Carrier's intended recovery of erroneous
payments of wages is barred" by a rule providing a time limit
on claims. The Board concurs in this conclusion.
The Board likewise finds that the absence of a rule
providing for recovery of overpayments does not lead to the
conclusion that errors may not be corrected. Numerous previous
Awards support this view.
The Organization, however, points to Awards which hold
that an extended lapse of time in seeking repayment goes
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Award No. 113
Page 4
to mitigate or eliminate the Carrier's rights. Some of these
Awards refer to specific language as to time limits
on
seek
ing such repayment and thus are obviously not germane here.
More to the point here are two other cited Awards.
Public Law Board
Nor. 1082,
Award No. 1 (Hanlon) concerned
a 1971 audit which found erroneous calculations for vacation
dllowances on 19699 earnings.
In
sustaining the claim against
such correction, that Award stated:
The two year lapse of time in the present
case is clearly unnecessary and unreasonable and
the Carrier's right to recoup the overpayments must
be considered barred under the doctrine of laches.
Public Law Board
No. 1324,
Award No. 15 (Moore) concerned a series of time slips submitted by an employee for
an arbitrary payment to which it was later discovered he
was not entitled. That Award concluded:
A denial award . . . would result in chaos
in the industry. It would allow a Carrier four
years later to deny a time claim on the basis
that it was an overpayment and paid in error. There
would never be an end to such claims.
Here a 23-month period was involved, but unlike the
Public Law Board No. 1082 Award, this was not a single payment
long completed; payments were being made each month, up to
the time the error was discovered. Nor, as in the Public
Law Board
No.
1324 Award, were these additional payments
which the employee had sought and was erroneously granted;
PLB No. 3510
Award No. 113
Page
in that case, the Carrier had a fresh opportunity to review
each time claim.
In sum, the Board finds that the Carrier acted in good
faith as to discovery of its continuing overpayment; that
recovery of some overpayment is sanctioned by the absence of
any contractual restriction; and that the method of recovery
over a 10-month period at least mitigated any resulting hardship to the Claimants. However, in accord with several cited
Awards, there is cause to find that such correction must
be on a reasonably prompt basis. To seek recovery for payments for a period of almost two years is excessive. Recovery
over a period of a full year is, in the Board's view, fully
appropriate. As a result, recovery of payments for the
period from September 1987 through July 1988 is inappropriate
based on the elapsed time involved. The Claimants are to
be reimbursed for deductions made for this period.
A W A R D
Claim sustained to the extent provided in the Findings.
The Carrier is directed to put this Award into effect
within thirty (30) days of the date of this Award.
HERBERT L. MARX, JR., Chairman and Neutral Member
VIRGIL V, ELSWICK, Employee Member
R. 0. KEY, Carrier Member
NEW YORK, NY
DATED: ~~
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