IBT Rail Conference (BMWE or Organization) and th Northeast Illinois Regional Commuter Railroad Corporation (Metra or Carrier) {collectively the Parties). The dispute arises out of BMWE's ctalm that Metra violated tile Parties' Agreement .Rules 4(a), 7(b). 8(b) and (d}, and 32(a) and (b) whem it disqualified the Claimant J. Rodriguez from his position as Track foreman.
The record of the on property handling reveals the following undisputed facts:
On September 12, 2012, the Carrier notified the Claimant that he had been disqualified from his Track Foreman position, for his inability to pass the April 24, 2012 qualifying examination. Heheldtheposition sinctOctober 14, 2011. BM\/Yf: aiserted that the disqualificationconstituted discipline without investigation orhearing.
On October 2, 2012, BMWE submitted a claim tothe Chief Engineering Officer on behalf of Rodriguez ehaflenging the carriers dtsqualification of Rodriguez as a Track Foreman based on alleged violations of Agreement Rules 4,. 7, 8 and 32.
On February 4. 2013, having received no Carrier response to the ctaim1 BMWE appealed to Patrick J. Ward, the.next tevef Carrier Official in the claim process.. BMWE's appeal reiterated the claim and requested as remedy that the Cfalmant re.ceive the difference in pay between his current position and his Track Foreman position from September 12, 2012 until hls reinstatement to Track Foreman.
On March 20, 2013, the Carrier denied the appeal. The Carrier asserted thatsince the Claimant failed to pass theTrack.Foreman.qualification exam, then his disqualification from theposition was not a disciplinary action.
The claim was conferenced on May 8, 2013 and August 16, 2013. butnot resolved.
On Decembers. 2013, the claim was conferenced again by telephone. BMWE asserted in writing that because there was no Carrier response to the original claim, then the Agreement Rule 33's time limits required that the claim be allowed. Thaclaim was not resolved. Thereafter,. the dispute was docketed with this Board for adjudication.
The applicable. work rules and policies provide:
CaseN<L 59
Award No. 59
RULE 33. TIMEUMIT ON CLAIMS AND GRIEVANCES. {a) All claims or
grievances must be presented in writing by.or on behalf of the employee involved, to the officerofthe Carrierauthorizedtoreceive same, within sixty
days from the date of the occurrence on which the claim.or grievance is based. Should any such clcllm or grievance be disallowed, thEJ Carrier shall, Within sixty (60) day& from the date same ts fifed, notify whoever fifed the claim or grievance (the employee or his representative) in writing ef the reasons for suchdisallowance" ff not sonotified, the cfalm or grievance shaU be allowed as presented, but this shall not beconsidered as a precedent or waiver of the contentions of the Carrier as. to other similar claims or grievances.
{b) If a disallowed claim or grievance is to be appeal.ed, such appeal must
beinwriting andmustbe taken with sixty (60) days fromreceipt of thenotice of disallowance, and the representative of the Carrier shall be notified in writing within thattime ofthe rejection of hisdecision. Failing toeomply with
this provision, the matter shall be considered closed, but thls shall not be considered as a precedent or waiverof the contentions of theemployees as to other similar claims or grievances, It is understood, however, that the parties may, by agreement. at any stage of the handling of a claim or grievance on the property, extend the sixty {60) day period for either a decJsion or appeal, up to and including the highest officer of the Carrier designated for that purpose.
DISCUSSION AND FINDINGS
In support of its contention that the claim must be ,ustained, BMWE described a. procedural violation of Rule 33 regarding the Carriers failure torespond toth$ claimatall. The Carrier's alleged procedural violationmust beaddressed by the Board as a threshold matter.
Theundisputed and unchallenged facts establish that the Carrier failed respond to BMWE's October 2. 2012 claim within 60 days of the date the claim was submitted. The record establishes that the Carrier did not respond to the claim at all until after BMWE's February 4, 2013 appeal to Patrick Ward.
Rule 33(a) provides that,
Should any such claim or grievance be disallowed, the Carrier shall, within sixty (60) days from the date same is filed, notify whoever filed the claim or grievance (the employee or his representative) in writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances. (Emphasis added).
The Board finds, applying the plain, clear and unambigµous Rule 33(a) language to the facts, that BMWE1s claim is allowed without precedent or waiver of Carrier contentions regarding similar claims. The Claimant is entitled to be made whole with the reimbursement of the difference in pay between his current position and his prior position as Track Foreman from September 12, 2012 until his reinstatement to the Track Foreman position to include the appropriate correction of his seniority.
Consistent with NRAB principles, since the Board has found that the Carrier committed a Rule 33 procedural violation which resolves the dispute, then the Board need not consider the claim merits.
BMWE's claim is sustained.
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·Publ Law Board Advocate BMWE+1BT
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Sean J. Rogers & Associate&, LLC
Leonardtown. Maryband
December 21. 2018