". J




                  UNITED TRANOPORTATION UNION

                  ROY R. RAY, Referee

                  1sSUr4

          The pole issue before thin Procedural Board to whether the claim of R. L, McKeehan (identified As Case 19 in Attachment A to the Memorandum of ARreernent between the parties dated January Z6, 197; establishing a Public Law Board) is a proper case for submission to the Public Law Board,


                            FACTS

        The Company granted Yardman R. la, McKeehan a leave of ab. nonce for military service on November ZZ, 1966, lie wan discharged from Service on October 1&, 1967 and attempted to exercise his seniority rights to, hump into Job 316 Am foreman pit October Z5, 1967. The Company rp.. fumed to permit him tp return to work,on the ground that he had received a military service connected injury to his ankle and was found by the Company doctor not to be physically qualified, The Union filed a claim (No. 3075) on McKeehan's behalf with Superintendent Remain on October 30, 1967 asking pity ror October 25 and all days ouhmequontthereto and including fringe benefits. In him letter of Claim the deneral Chairman asserted that McKeehan had not received the injury in military service but in fact had the defect while

. PL C3 6813
                        z

still working for the Company prior to the military service. The claim
 was declined by the Superintendent on November ZZ, 1967. By letter of
 November 28, 1967 General Chairman Cotton refused,to accept the Super
 intendent's decision, reiterating that McKeehan did not get the injury in
 military service and was not required by the Rules to take a physical
 examination. Thereafter the United States Department of Labor entered
 the picture and conducted an investigation to determine whether the Com
 pany had violated McNeehan'q reemployment rights under the Selective
 Service Act. On April 3, 1968 General Chairman Cotton and Superintendent
 i. .·Wo W 1~ .,.7y, i ~yn; ~ 'pl·11~' i. (. p. .
 Reese had a conference concerning the status of McKeehan's claim. Reese wrote Cotton on April 19, 1968 an follows; "Since the matter has been turned over to the United States Department of Labor which handles the reemployment rights of returning veterans the claim should be held in abeyance covering the ruling by the United States Department of Labor and when this ruling is received we will act accordingly." Thereafter the Department of Labor, acting through the United States Attorney filed a civil suit on McKeehan's behalf in th6 United States District Court in Houston, charging the Company with violation of McKeehan' A reemployment rights under the Selective Service Act. The case was tried in the latter part of 1969 and on December 16, 1969 Sudge ;ohn Singleton ruled that the Company had violated McKeehan's rights and ordered it to return him to work immediately. The judge took under advisement the matter of compensation to which McKeehan was entitled.
                                                    PL13 lo8g


                              3

        On May 8, 1970 General Chairman Cotton wrote M. G. Jackson, Superintendent, referring to Judge Singleton's decision of December 1969 and requested that the Company pay McKeehan for his lost earnings in the amount of $ZO,8Z0.68. Jackson replied on May 13th stating "the matter of McKeehan is now pending before the Justice Department and we are await


` Ing their reply." Cotton wrote again on June 10th insisting that the Company
        pay McKeehan for all time loot, and asking him to set a conference date.

        Jackson replied on June 17th saying that the matter was still before the

        Federal Cour,tl cqttqj wrote) back on, June, 18th stating that the Federal

        Judge had not ruled on the money issue and insisting that the Company

        pay McKeehan for all time lost without deductions for outside earnings.

        He asserted that if the Federal,Tudge should rule contrary to the Agree.

        ment of the parties on the money issue he would exceed his authority by

        changing the Agreement. On June 19th Cotton wrote to Personnel Manager

        Minahan appealing from the ruling in Jackson'p letter of the l7th.r Minahan

        replied on July Z, 1970 saying the matter was still pending in the Federal

        District Court and the Company waskawaiting the ruling. Cotton and Minahan


                                  t

        had a conference on the McKeehan claim on July 30, 1970. On August 7th Minahan wrote that the matter was still pending before the Federal Court. On August 14th Cotton wrote to Minahan that since the Company still refused to pay McKeehan for time lost it was the Union's position that the dispute should be submitted to a Public Law Board ae provided by the Railway

                                          PLG 689


k Labor Act. By letter of September 11 Minahan refused to submit the dispute to a P L Board. In this letter he said that the Union was trying to relitigate the identical issue which had been ruled, on by the Federal Court, By letter of October 19 Cotton advised Minahan that the Union would exercise its rights to request a Public Law Board_ In thin letter he said that the Federal Court had passed on the factual question of whether McKeehan received a service connected injury, which could pot have been resolved by a, Special Board of Adjustment. The Union took the position that the mater of comprition was for a P L, Board.
      · I. 1 4, I i fi, I~ . .:I's ·i .,

On November 10, 1970 Judge Singleton rendered a final ,judgment in the civil suit ordering the Company to pay McKeehan the *um of $9331.68 plus interest from October Z0, 1967. This 4mmount was arrived at as follows: The Court determined that McKeehan would have earned $20,820.68 had he been reemployed on October Z0, 19671 and that h© had actually earned $11,489.00 in other employment during the time involved. The difference between the two figures wan $9331.68, The interest at 6% was $1726.36. The Company then paid McKeehan 44total of $11.068.04,
 On January 11. 1971 Cotton wrote Minahan contending that McKeehan was 'entitled to the lost earnings of $20,BZ0.68 without deduction for outside earnings and that the Union was amending the claim to cover the outside earningsl$11,489.00) which had been deducted by the Court and requested that the matter be submitted to a P L, Board, On January 14th

                                          PL6 689


                        5


Minihan replied refusing to submit the issue to a P L Board.

            POSITIONS OF THE PARTIES

        Company ; The Company's argument that this is not a proper

case for a Public Law Hoard is threo"fold ; (1) The Union failed to observe
 the one year time ~limitation of Article 43 after receiving Reese's letter of
 April 19, 1966 uki _May S, 1970 when it nought to revive the claim, (2)
 Eyfiling the civil suit under the Selective Service Act for a violation of
 his reemployment rights McKeehan elected to pursue hip claim in the
 Federal Court and is bound by the judgment of . the ' q cjxt and is not en.I, I , I; ,, 1_ ,' ,i, , . ., . I'' ( i I ^, ,~I:
 titled to relitigate the money claim through the Orievance Procedure,
 (3) The Union' R altered claim far additional money not allowed by the
 Court 1'a in violation of the policy of the First Division against the piece
 meal submission of disputes,
 Union s The Union deniva any violation of the Time Limits prop. viaiona of the Agreement, It points to Aeese'a letter of APril 19, 1965 its which he said that the clgim was being held in abeyance pending the ruling of the Department of haberi and qaya"that this was not a denial of the claim, The Union Alpo aaaerta that the Company never at any time prior to $aptember 11, 1970 rained the question of time limits or auSgested that the claim was barred.
 The Union contends that the decision of the Fedaral Court does not bar the Union from pursuing through the Orievance Procedure the claim

                                            PL,3 68g


6 For thr: money the Court did not allow under the Contract. It says that the Selective Service Act is separate and apart from the Contract between the parties which comes under the provisions of the Railway Labor Act and the Union to not barred from processing McKeehan's claim for what the Contract pays he should be paid,

                    OPINION

It is the jjudgrnont of this Board that the Company is not entitled to assert the time limit rule. Tho Union had aggressively processed the claim up 'to April 19, 1968'4t which time :up~riritpadbak`Reklpe'pkatad that the matter was to be held in abeyance pending decleion of the Department of Labor. This was not a denial of the Claim and the one year limitation of Article 43 did not begin to run. Thereafter the Labor Department had a civil suit filed on McXeohan'p behalf by the Justice Department. The Union was entitled to rely upon the Conlpany'p Statement that the matter Was in abeyance and that it did not have to take fwrthar action. After the Judge had ordered McKeehan reinstated and before he had made any ruling concerning compenpatton the Union pougnt to procopp the claim for money, The answer of the Company each tinge was that the matter was still pending in the Court. At no time prior to June 17, 1974 did the Company purport to deny the claim. Furthormore, it never raised any ph,jpction based on time limits until its letter of September 11, 1970. Under those circumstances it cannot be paid that the claim 1s barred by failure to procepp it within the proper time limit®,

                                          PL8 689


The Company's primary contention is that by having elected to pursue his rights by a civil suit in Federal Court McKeehan is bound by the judgment of that Court and is barred from now processing his claim through the Grievance Procedure, In other words it invokes the doctrine of estoppel. It is true that McKeehan elected to pursue his rights under the Selective Service Act and that he authorized and processed the quit through the Federal District Attorney, appealed the judgment and later witho drew the appeal and accepted payment of the amount decreed by the Court, But there is nothing to indicate that the Court based its decision in any part
                        1 "'i i1W _ I ,rk,. , I .. ., 1, .

on the Contract provisions, For example Article ZA states that an employee who has been wrongfully withhold from service is entitled to be paid for all time lost. The Union asserts that many decisions of the National Railway Adjustment Board and other Boards hold that under such b provision outside earnings are not deductible in the absence of past practice to that effect on the particular property.
 In the Judgment of the Board the Company's estoppel argument presents more than a more procodurad question, It is a defense asserted by the Company to McKeehan's claim under the Contract. In order to determine whether the ,judgment in the Selective Service Act suit is properly a bar to McKeehan's claim under the Contract it will he necessary to consider the Contract provisions and their Into rpretation, The Union is entitled to have this question resolved by a Public Law Board, and we direct that the
              . fJLf3 689


8 McKeehan claim be placed on the calendar of Public Law Board No. 689. W e make no judgment as to whether the doctrine of estoppel should apply in this case,

                ROY R. RAY, Chairman


I ~., T, Cot~on, Union,Me~nbe ~'. ~vfi~a~han, Car ler
 r ,li I I Jon- . rlrilrrl . I r IIIr /r r., 1 I I'Ir -

              CCI.-'I~binbes


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