A
.G. Harper,
'~ Award No. 21
Docket No. 21
PUBLIC LAN BOARD N0. 76
BROTHERHOOD OF MAINTENANCE OF NAY EMPLOYES
vs.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
Roy R. Ray, Referee
STATEMENT OF CLAIM:
1. The Carrier violated the effective Agreement by failing to compensate
Claimant 0. H. Fort upon his termination of service with this Carrier, in 1963
_ for services performed in 1967 for vacation pay due him.
2. Carrier shall now reimburse Claimant, 0. H. Fort, for this vacation.
pay now due him because of violation of Agreement referred to in Part I of this
Claim.
OPINION OF BOARD:
0. H. Fort was employed as a Track Laborer, Section Gang No. 119, and last
performed service for Carrier on November 13, 1967. Because of illness he applied
for and received a disability annuity effective November 14, 1967. lie remained on
the disability annuity. On March 27, 1968 Fort attained age 65 and became eligible
for a Railroad Retirement Annuity on a permanent basis. Sometime in March prior to
his birthday he received a notice from the Railroad Retirement Board entitled "Notice
of Relinquishment of Rights." It was from the Director of Retirement Claims, D. M.
Smith and stated:
Payment of a disability annuity can continue after 6S only if
the Annuitant gives up any rights he has to return to work in the
Railroad Industry. To prevent interruption of your annuity we are
sending a notice to your last Railroad employer relinquishing your.
rights for you.
Fort did not reply to the Director of Retirement. He received his Certificate of _
annuity and accepted the payments made under it.
On June 5, 1968 Fort wrote a letter to Roadmaster C. F. Brick, the last
supervisor under whom he worked as follows:
' PLPu No-7(o
' Award No. 21
Docket No. 21
I have been awarded my Certificate of Annuity. Supple-,
mental Annuity A-702-8252.EVerything is up to date but I hive
vacation time coming. I don't know whether the Ry. Co. or
the Retirement Board attends to this. ,
When Fort received no reply from Brick he took .the matter up with
General Chairman Uptergrove, who advised him that his letter should have been directed
to Division Engineer Flake MKT Railroad Company, Parsons, Kansas, and suggested-that '
Fort immediately write Flake. On July 13, 1968 Fort wrote Flake about his vacation'
pay, stating that he had worked until October 1967. He asked whether he was supposed
to get his vacation pay then or would have to wait until December. ,He said he had
written to Brick but received no reply. In the letter he also stated that he had
started receiving regular retirement with the month of March 1968.
Flake replied on August 6, 1968, acknowledging receipt of Fort's letter of
July 13, 196$. He said he was advising Carrier's Paymaster that Fort had "qualified
for 4 weeks' pay for vacation earned in 1967 for the year 1968." On September 11,
1968 Flake wrote Fort as follows:
Referring to your letter dated July 13th and my letter to you
of August 6, 1968 concerning your request for vacation pay for time
earned in 1967. You relinquished your rights in March 1968, and
therefore your claim is being declined as it was not timely filed
under Article 28 Rule 1(a) of the current Agreement.
On September 17, 1968 Chairman Uptergrove appealed. the claim to Carrier°s
Chief Engineer. Thereafter it was properly progressed by the Organization and declined
by Carrier.
The Organization contends that Claimant Fort by work in 1967 earned a 4
weeks' vacation which he would have received in 1968; that when his employment relation ceased the Carrier was required to pay him for the vacation already earned. It
says that this was mandatory and that no claim was necessary. But assuming that a
claim was necessary the Organization asserts that Tort
Is
letter of June 5 constituted
P43 Na·'1lo
· Award No. 21
Doc':et No. 21
a claim for the vacation pay and that the failure of Carrier to disallow the claim
l
within 60 days thereafter was a violation of Article 28, Rule 1(a) and that the
claim must be allowed as presented, and Carrier must pay Claimant the 4 weeks vacs- -
tion pay, ,
Carrier contends that the claim for vacation pay is barred from consideration by this Board because it was not presented to the Officer of.Carrier authorized
to receive same within 60 days after the occurrence on which it is based.
We have held in Award No.
1
and subsequent awards of this Board that the
time limit rules of Article 28, Rule 1(a) apply to claims for pay in lieu of vacation,
and that a claim must be filed with the proper officer within.60 days. This disposes
of the Organization's first contention.
We must first inquire therefore, whether the time limit rules were complied
with in this case. The occurrence giving rise to the claim was the termination of
Fort's employment rights with Carrier. We are satisfied that this event occurred
on March 27, 1968. This is the only possible conclusion from the facts of record.
Fort had been advised by the Retirement Board that his annuity could continue after
his 65th birthday only if he. gave up his rights to return to work for the railroad.
To prevent such interruption the Retirement Director sent a notice of relinquishment
of sights to Carrier on Fort°s behalf and so advised him. By accepting his certificate of annuity and the Retirement Annuity checks beyond age 65 Fort clearly adopted
and ratified the Retirement Director°s action in relinquishing his employment rights
and is now estopped to deny it. This automatically fixed the date of Fort's termination as of his 65th birthday, March 27, 1968. He was, therefore, required to file
his claim for pay in lieu of vacation within 60 days from that date. This he failed
to do. His first communication to Carrier concerning it was dated June 5th. Even
if this could be considered a claim, which we-seriously,dpubt,, it=was not, presented
P(g NV ·7
!0
Award No. 21
Docket No. 21
to the proper Officer of Carrier and came after the time for filing such claims
had expired. Under these facts this Board has no jurisdiction to consider the claim
and it must be dismissed.
Since no claim was properly filed in the first instance we do not reach
the question of whether Carrier complied with the second sentence of Article 28,
Rule 1(a) requiring it to give notice of disallowance of the claim within 60 days.
See Award 9684 Third Division (Elkouri). _
Again the Board is faced with an unpleasant task, the dismissal of.a claim
which is morally and equitably just. Carrier does not dispute that Claimant earned
the vacation and was by virtue of Article 26, Section 8 entitled to be paid for it
on termination. But it invokes the procedural rules agreed to by the parties. We
have no authority to dispense with such rules merely because we abhor the result
which follows
. Claimant has had his day in court but because of his failure to comply
with the procedural rules must leave it empty handed.
AWARD
The Claim is dismissed.
EmploMember~
Dallas, Texas .
October 31, 1969
Public Law Board No. 76
Roy R. Ray "
Neutral Member and Chairman
Fred R. Carroll
Carrier Member