PARTIES TO
AWARDN0.10 CASEN0.10
THE DISPUTE: Brotherhood of Maintenance of Way Employes Division
IBT Rail Conference
vs.
Grand Trunk Western Railroad Company
ARBITRATOR: DECISION:
Gerald E. Wallin Claim sustained
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
l The Agreement was violated when, beginning on April 25, 2013 and subsequent thereto, the Carrier {'rohibited Welder J. Oliver from reporting to his bulletined trackman position and instead force assigned him from his higher rated position of welder to a lower position of welder helper at Flat Rock, Michigan, failing thereby to also compensate him his rightful entitlement to a daily per diem (Carrier's File GTW-BMWED-2013-00004 GTW).
The claim referred to in Part 1 above, shall further be allowed because the Carrier defaulted on the claim when it failed to hold a timely appeal meeting as required by Rule 24(b).
As a consequence of the Carrier's violation referred to in Parts1 and/or 2 above, Claimant Oliver shall' ... be paid Welder's rate for all straight time and overtime hours worked by the Claimant beginning on April 25, 2013 and subsequent there to while performing work of a Welder Helper at Flat Rock, ML We further request that the Claimant be compensated the daily per diem likewise beginning April 25, 2013 and continuing until the daily per diem is reestablished on his daily pay. Finally we request a copy of the Claimants work record including but not limited to any and all safety failures and write ups.' (Employes' Exhibit 'A-11)."
FINDINGS OF THE BOARD:
The Board, upon the whole record and on the evidence. finds that the parties herein are Carrier and Employees witlun the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by agreement of the parties; that the Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.
As noted in Paragraph 2 of the Statement of Claim, the Organization and claimant contend they are entitled to a sustaining decision by virtue of the Carrier's default resulting from
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the Carrier's failure to conduct a grievance appeal meeting on the property per Rule 24. The Carrier's initial denial of the claim was made by letter dated June 18, 2013. The Organization appealed by letter dated July 22, 2013. The Carrier issued another denial by letter dated September 13, 2013. The record does not establish that a grievance appeal meeting was conducted before the Carrier issued that denial on September 13, 2013. By letter dated October 16, 2013, the Organization claimed the default entitlement as a result ofno grievance appeal meeting. That ended the on-property record. The Carrier neither refuted nor responded to the Organization's default contention.
Agreement rule 24 governs the procedure to be followed during the handling of the claim on the property. It reads, in pertinent part, as follows:
***
(b) A claim or grievance denied inaccordance with paragraph (a) shall be considered closed unless it is appealed in writing to the designated officer of the company by the employee or his union representative within sixty (60) days from receipt of notice of disallowance. A claim or grievance appeal meeting with the employee, duly accredited representative, and or local committee will be held within sixty (60) days of the carrier's receipt of such notice of appeal. When a claim or grievance is not allowed, Labor Relations will so notify, in writing, whoever listed the claim or grievance (employee or his union representative)within sixty(60) days efterthedate the claim or grievance was discussed, of the reason therefor. When not so notified, the claim will be allowed. Claims paid by default arenot to beconsidered a precedent or waiver of the contentions of the employees and will not be referred to in other similar claims.
(Italics supplied)
As written, an appeal meeting must be conducted. Per the mandatory wording of the rule, the parties have provided that an appeal meeting is a condition precedent to the issuance of a denial of the claim; the meeting must be held before a denial is issued. This mandatory requirement for a grievance appeal meeting is entirely consistent with the provisions of the Railway Labor Act (RLA)1• RLA §§ 152 First and Sixth impose a duty upon carriers and organizations to exert every reasonable effort to settle all disputes by requiring the parties to engage in a conference as part of their handling of a claim on the property. RLA § 153 First (i) requires that claims be" ... handled in the usual manner ..." on the property as a prerequisite to jurisdiction being conferred upon an adjustment board to consider its merits.
1 4S use§§ 1s1-t88
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Given the circumstances of this record, the finding is that the instant claim must be sustained by default with the proviso, per the final sentence of Rule 24(b), that it does not set a precedent and may not be referred to in other similar matters.
AWARD:
The Claim is sustained.
and Neutral Member
Organization Member Date:_l_\.....