Parties to the Dispute:
Brotherhood of Maintenance of Way Employes Division



CSX Transportation, Inc.

Statement of Claim: "Claim of the System Committee of the Brotherhood that:




Findines:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934. Public Law Board 7163 has jurisdiction over the parties and the dispute involved herein.


I
                                        AWARD 44


The Organization presented a claim that alleged a violation of the Claimants' seniority rights in the assignment of flag protection. According to the Carrier, a junior employee was assigned.


Initially, the Organization claims a procedural violation that requires the Claim to be granted without addressing the merits of the Claim. According to the Organization, the Carrier violated Rule 24(a) of the Agreement when it did not respond to the claim in the manner required by the Rule. Under that Rule, the Carrier's designated officer must respond to the Claim. Here, the Designated Officer did not respond. That improper response should be treated as no response to the Claim. Because the Carrier did riot reply, the Claim is granted pursuant to the Rule.


The Organization continues that, even if the merits are addressed, the Claim must still be granted. Claimant had more seniority than the employee who was called to perform the flagging work.. Claimant should have been called.


The Carrier replies that an answer to the Claim was given within the 60 day requirement of Rule 24(a). In the Statement of Facts, the Carrier states at page 2 of the Submission:


    Atlanta Division Staff Engineer C.A. Wiggins, on behalf of Division Engineer M.A. Bossone, denied the Organization's claim in a latter dated December 15, 2006. Mr. Wiggins stated: `Our investigation reveals that providing `Flag Protecting' is not work reserved to the crafts protected by the BMWEICSXT Agreement of June 1, 1999. Therefore, they have no contractual claim to said work.' Therefore, the claim presented was of no merit and was denied in its entirety, Mr. Wiggins concluded.


The Carrier continues that, because the Claim was answered in a timely manner, the Organization's procedural argument must fail. Further, because the improper response was not asserted during the handling of the Claim, the argument is waived. The Carrier further maintains that the Organization's claim is based upon the assumption that flagging duties are exclusive to the craft. Not such exclusivity exists for flagging and the Claim must fail.


'This Board has reviewed the record. The Claim was fled on October 19, 2006, with Mike Bassone, Division Engineer. Mr. Bassone was the Designated Officer for receipt of this Claim from the Organization. The Carrier responded in a letter dated December 15, 2006, to Vice Chairman L.C. Smith. The Carrier letterhead lists the letter as originating as follows:


    Charles A. Wiggins 1590 Marietta Blvd, NW Atlanta, GA 30318 [telephone number omitted] The letter provided, in pertinent part:


    This is in reference to your letter dated October 19, 2006, Organization claim...


                                                  2

                                      PLB NO. 7163

                                      AWARD 44


    Our investigation reveals that providing "Flag Protection" is not work reserved to the crags protected by the BMWE/CSXT Agreement of June 1, 1999, therefore, they have no contractual claim to said work.


    Based on the foregoing, no Agreement rules have been violated and the Organization has failed to support their assertions. Consequently, the Organization"s claim is respectfully declined in its entirety.


    Sincerely,


    Charles A. Wiggins

    Staff Engineer - Atlanta


The Organization replied in a letter dated February 12, 2007, to Senior Director of Labor Relations J.H. Wilson:

    Dear sir,


    Attached is a copy of the above referenced claim which was presented to Division Engineer Mike Bossone, via Certified Mail Return Receipt Request on October 19, 2006. As of this date, Mr Bossonc has failed to respond to the claim.


    Rule 24(a) of the effective Agreement provides in pertinent part: The designated Officer, or other designated official shall render a decision within sixty (60j days

    from the date same is filed, in writing, to whoever filed the claim or grievance (the employee or his union representative). When not so notified the claim will be allowed "


    The above Rule is crystal clear. Account Mr. Bossone's failure to respond the claim should be allowed


    Therefore, please handle to compensate Claimant as requested in the claim, and advise as to the pay day on which Claimant may expect payment.


                    Very truly yours,


                    L.C. Smith, Vice Chairman


    In a Carrier letter dated May 24, 2007, the following relevant language appears:


    Please reference Mr. Smith's letter. . . alleging that Carrier is in violation of Rule 24(a) of the effective Agreement, alleging that the designated officer did not respond within sixty days from the date the claim was filed, and also requested payment of'same.


    As stated above, this claim was dated October 19, 2006 and filed with Division Engineer Mike Bossone. It was signed for on October 23, 2006, as indicated by


                                                3

                                    PLB NO. 7163

                                    AWARD 44


there is nothing in the record to establish, other than the Carrier's unsupported assertion in their Submission, that Mr. Wiggins was acting on behalf of the Designated Officer, Mr. Bossone.

 The Organization's submission cites to awards for the proposition that the operation of Rule 24(a) is clear. Those awards, and the citations contained therein, indicate that the failure of the Designated Officer to respond within the time period operates as a procedural default. The Designated Officer did not respond to the instant Claim. Therefore, the Carrier violated the Agreement and we cannot reach the merits.

 Award:

    Claim sustained.


      Brian Clauss

Chairman and Neutral Member

 Timothy Kreke tt ew z leri

 BMWED SX r spor(Vation, Inc.

 Organization Member C Mier Member j; k*$Sp/),,P xDated this derv oj)~L~ 2011

 4
 CARRIER MEMBER'S DISSENT

PUBLIC LAW BOARD NO. 7163, CASE NOS. 43, 44 AND 47

REFEREE BRIAN CLAUSS


Dissent to the above-captioned cases is necessary due to the Majority's failure to base its decision upon the Agreement and the record evidence. In each of the three (3) cases, the Organization erroneously argued the Carrier failed to respond to the initial claims, in violation of Rule 24(a) of the June 1, 1999 BMWEICSXT System Agreement when the Staff Engineer of the Atlanta Division did respond. In deciding Award No. 43 (the decision in the remaining cases was virtually identical), the Majority stated:


      "After a review of the record, and the Award citations contained therein, the Board finds that the evidence establishes that Mr. Bossone is the Designated Officer for receipt of the instant claim. He did not respond to the instant Claim, Mr. Wiggins responded. Contrary to the Carrier's correspondence in the handling of the claim, Mr. Bossone did not respond. Further, there is nothing in the record to establish, other than the Carrier's unsupported assertion in their Submission, that Mr. Wiggins was acting on behalf of the Designated Officer, Mr. Bossone.


      The Organization's submission cites to awards for the proposition that the operation of Rule 24(a) is clear. Those awards, and the citations contained therein, indicate that the failure of the Designated Officer to respond within the time period operates as a procedural default. The Designated Officer did not respond to the instant Claim. Therefore, the Carrier violated the Agreement and we cannot reach the merits. "


What the Majority failed to do in these cases is to consider the clear and unambiguous language of Rule 24(a) of the Agreement:


    (a) A claim or grievance must be presented, in writing, by an employee or on his behalf by his union representative to the Designated Officer, or other designated official within sixty (60) days from the date of the occurrence on which the claim is based. The designated officer or other designated official


writing, to whoever filed the claim or grievance (the employee or his union representative). When not so notified, the claim will be allowed.


In the instant dispute, the "other designated official", the Staff Engineer of the Atlanta Division responded to the claim within the sixty (60) day period. It is common knowledge, this official may respond to claims on behalf of the Division Engineer. In support, the Carrier cites National Railroad Adjustment Board (NRAB), Third Division Award No. 28487 with Marty E. Zusman sitting as Referee:


Carrier Member Dissent Public Law Board No. 7163

        Award Nos. 43, 44 and 47 Page 1 of 2

      "As to the procedural issue, Rule 4-X-1 refers to the `Supervisor - C&S (or other designated official).' Carrier maintains no violation in that the Division Engineer was known as the other designated official to respond. Tfie Organization never refutes the Carrier's assertion. As such we conclude that no procedural violation occurred. "


See, also, NRAB Third Division Award No. 26547 (Rotdcis).

On a regular basis, the Carrier provides the Organization with an update of the administrative staff at each of its Divisions. These note the Division Engineer as well as the Staff Engineer. Clearly, as the Organization is made aware of these two officers, it is conceivable, under the clear language of the Agreement, that the Staff Engineer, acting as the "other designated official" may render a decision in claims.


For the reasons cited above, the Carrier must respectfully dissent to the Award. The reasoning and holding are clearly palpably erroneous and cannot be referred to in any future disputes on the property.


                                  I


                                    1


                      atthe J orzille~l, Carrier Member blic w Board No. 7163


Carrier Member Dissent
 Public Law Board No. 7163
 Award Nos. 43, 44 and 47
 Page 2 of 2

LABOR MEMBER'S RESPONSE

TO

CARRIER MEMBER'S DISSENT

TO


PUBLIC LAW BOARD 7
(Referee Clauss)

 AND 47

The Majority considered the arguments and evidence raised by each party, applied Rule 24(a) to the facts and properly found for the Claimants and nothing found in the dissent detracts therefrom. Instead, the Carrier's dissent to Cases 43, 44 and 47 to Public Law Board No. 7163 is based on false premise and argument never raised during the on-property handling of the dispute.


The Carrier premised its dissent on the false premise that "*** the Organization erroneously argued the Carrier failed to respond to the initial claims ***" The Organization correctly argued and the Majority correctly determined that the Designated Officer (the Division Engineer) failed to respond to the initial claims.


The dissent went on to state that the Staff Engineer may respond to claims on behalf of the Division Engineer as the "other designated official" contemplated by Rule 24(a). That issue was never argued during the an-property handling of the disputes. Rather, the Carrier defended its violation of Rule 24(a) asserting that the Designated Officer timely denied the claims and the Majority's decision correctly concluded that Designated Officer did not respond to the claims.


As the Carrier Member is well aware, this Board is constrained to consider only arguments and evidence which are raised during the handling of a claim while it is "on the property". Inasmuch as the reader of the award and this post-decision exchange does not have access to the record of handling on the property and the submissions of the parties, it is of the utmost importance that those dissenting and responding take care that their statements as to the contents thereof are accurate. In this case, the Carrier Member simply misconstrued the arguments and evidence presented during the proper handling of the claim.


Respectfully su fitted,

            ~r


imothy W. eke
 Labor Member