COMPANY CASE NO.-N.k.ASONtPe


PARTIES TO THE DISPUTE: -

 Union Pacific Railroad Company
 (Former Missouri Pacific Railroad Company)

      - and - -


Brotherhood of Maintenance of Way Employees

 STATEMENT OF CLAIM: "Claim of the System Committee of the --
 Brotherhood that:

      1. The Agreement was violated when the Carrier assigned

        System Rail Gang No.-9111-to perform routine maintenance

        work (changing anchors, spot gauging and rattle spiking)

        between Gardner Avenue in the Kansas City Terminal and

        Dobson, Missouri from February 3 through 21, 1988.

      (Carrier's file 880465).- -- -

      2. The claim as presented by Second Vice Chairman B. R.

          Palmer on March 10, 1988 to Superintendent C. O. Malone -

          shall be allowed as presented because the claim was not

          disallowed by Director of Labor Relations J. J= Shannon

          (appealed to- him on May 6, 1988) in accordance with rule

          12, Section 2.


      3. As a consequence of the violations referred to in Parts

          (1) and/or (2) above, the fifty (50) senior furloughed

          Kansas City Terminal employes* listed below shall each be -°

          allowed compensation for all straight time, overtime and

          holiday pay lost from February 3 through 21, 1988. In

          addition, each Claimant shall be reimbursed for any out

          of-pocket expense he may have incurred as a result of the

          Carrier's failure to pay health and welfare benefit _

          premiums during the claim period. -


                        *CLAIMANT.$


FOREMAN TRACKMEN
 T. L. Shewell R. L. England
 J. Stroud
 ASST. FOREMEN - A. B. Butler -
 R. H. Elias S. A. Parker
 K. W. Rust G. L. Bacon
 M. A. Moshier
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MACHINE OPERATOR M. A. Adams
 J. A. Leckner, Jr. S. Hernande* z
 G. Taylor
 TRACKMEN/DRIVERS J. W. Horn
 E. D. Perez G. E. Meeks
 C. Withers, Jr. K. E. Mosby
 M. Cunningham, Jr. R. A. Davenport
 J. K. Kennedy
 TRACKMEN W. M. Thomas
 T. E. Paige -M. J. Howard
 R. E. Soverns M. L. Martens
 F. J. Garcia M. R. Kinney
 J. J. Gladbach R. K. Lappat
 J. Meza G R. Cordonier
 J. I. Moreno T. W. Roblex?t
 J: R. Nance J.- R. Lityma
 G. ArreVdonco S:- P. Jackson
 D. G. Wilson S. M. Serroque
 W. T. Bishop K. D. Jaster
 W. Parker R. J. Utter
 W. J. Chatman J. L_. Conley"
 R. T. Kirby
 OPINION OF BOARD:

By letter of March 10, 1988, the BMWE Second Vice Chairman filed this claim with Superintendent Malone, alleging violations of Rules 1 and 2of the controlling Collective Bargaining Agreement. That claim was timely denied by the Superintendent on March 18,


1988, following which the General Chairman appealed to the Director __
 of Labor Relations, via a certified letter, return receipt
 requested, dated May 6,1988. It ,is not disputed that the appeal
 letter was received in the Labor Relations Office on May 9, 1988.
 For reasons not indicated in this record, Carrier never did respond
 to the Organization's Step 2 appeal. Following- a conference
 discussion and additional correspondence, on March 1, 1988 the
 General Chairman requested payment of the claim "as presented"

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under the time limits of rule 12.2.a: -

                  "TIM CLAIMS RIND RIEVANCES ": -


      Rule 12. Section 2. (a) All claims or grievances must be presented in writing

      by or on behalf of the employe involved, to the officer of the carrier authorized to

      receive same, within 60 days from the date of the occurrence on which the claim or

      grievance is based. "Should any such gjajg~or grievance be e disallowed, the carrier

      shall, within 60 days from the dat same is fi)e . notify whoever filed the claim or

      grievance (the= emolov or his re r sentativ) in writing of he reasons for such

      disallowance. )f o so notified, he clai or grievance all be allowed resented.

      but this shall not be considered as a precedent or waiver ofthe contentions of the

      carrier as to other similar claims or grievances. (Emphasis added).


      (c) The requirements outlined in paragraphs (a) and (b), pertaining to appeal by the employe and decision by the carrier, shall govern in appeals taken to each succeeding officer, except in appeals from the decision of the highest officer designated by the carrier to handle such disputes. ***


On July 12 and 13, 1989, -the Parties held a claims conference
 to review- a number of claims, several of which were held in
 abeyance and `tied to the outcome' of a 'lead case' (Carrier File
 No. 880236 MP Rl ore is oar

Carrier representatives believed that this particular claim (Carrier Case No. 880465) was among those which the Parties agreed


          vpXuL4.d I& No . 8802-3 G

to "tie to" Caee=Nb- o. By letter of August 7, 1989, Carrier's
 Assistant Director of Labor Relations requested written
 confirmation of that linkage, but the General Chairman responded by
 letter of August 21, 1989, reading in pertinent part as follows:

      I am NOT agreeable to the conditions you have specified because this case No. 880465 is due and payable under the time limits provisions in rule 12, Section 2(a). As I have advised you on August 24,--1988 and on March 31, 1989, Mr. Shannon failed to render a written decision to my appeal of this claim to him on May`X 1988,,6 Your letter of August 7, 1989, is the first letter from Labor Relations level actually denying the claim and affixing a file number thereto. 'Therefore, I cannot agree to attaching this case No. 889465 to the outcome of Case No. 880236. (Emphasis in original)

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The matter remained unresolved -in further handling -until final appeal to this Board for determination.

No one's veracity or good faith is impugned by observing that, unfortunately, misunderstandings and breakdowns in communications do occur in negotiating situations. Imperfect as the English language sometimes is as a medium of communication, most important oral agreements eventually are reduced to writing. In this case, there is no written agreement to "tie" this particular claim to the


outcome of File No. 880236.

 clearly and

 The parole evidence simply does not

 convincingly demonstrate a meeting of the minds to do

so. Since this particular claim is so plainly allowable "as presented" due to the time Limit violation of Rule 12.2.a, the burden of persuasion was on Carrier to demonstrate convincingly that the Parties mutually agreed to tie this claim to the merits of File No. 880236. This Board must conclude that Carrier failed to carry that burden of persuasion.

Accordingly, the claim must be paid "as presented" under the express language of Rule 12.2.a. In-that regard, Award 3-25089_ between these same Parties is instructive.


      Petitioner presents this instant claim on a time limit basis. It contends that the claim was filed on October 3, 1979, and was not denied by Carrier within the 60-days required by Rule 12 Section 2(a) of the Agreement. As such, it should be paid as submitted.


      Carrier contends that the claim was not filed within 60 days of the event that triggered the claim, as is also required by Rule 12 Section 2(a), and that as such, the claim was untimely filed and should be dismissed.


      This Board has reviewed the claim and counterclaims submitted on the record of this case, just as it has reviewed the awards submitted for consideration. Based on this review, it is the opinion of this Board that Carrier should have declined the October

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    3, 7 979, claim, stating that it was untimely filed or that it had no merit within the 60day period specified in Rule 72 (2) (a). Its failure to do so constitutes default and this Board is required to sustain the claim.

See also, NRAB Third Division Awards 10500, 17085, 21755, 27480 and 27692. It should be noted that in deciding this claim "as presented" and "without prejudice," under Rule 12.2.a, this Board neither expresses nor implies any opinion concerning the underlying merits.


AWARD

Claim allowed "as presented"due to violation of Rule 12.2.a.


Carrier shall implement this decision within thirty (30) days of its execution by a majority ofthis Board.


        Dana Edward E-1-er

                    'zen,a


Dated at Ithaca, New York on September 7. 1994
Unio

 Dated at on

 -Company Membe

 -Dated
 on t /2_ /qq