BEFORE SPECIAL BOARD OF ADJUSTMENT N0. 924
PARTIES: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYS
TO
DISPUTE: CHICAGO AND NORTH WESTERN TRANSPORTATION
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
1. The disqualification of Foreman R. J. Martionez was without
just and sufficient cause, unduly harsh, capricious and
improper (Organization File 4LF-2184; Carrier File 81-87201).
2. The claim presented by then Vice Chairman L. R. Fenhaus on
July 21, 1987, to AVP&DM F.F. Maybee is allowable as
presented because said claim was not timely disallowed by
Mr. Maybee in accordance with Rule 21.
3. Because of 1 and/or 2 above, Foreman R. J. Martinez shall
have Discipline Notice No. 1082 stricken from his record
and, commencing June 6, 1987, he shall be compensated for
the difference in rates of pay between the Assistant Foreman
position he is now occupying and the Track Foreman's
position he held at the time of his disqualification."
FINDINGS:
Claimant R. J. Martinez was employed by Carrier as a foreman. On
May 13, 1987 the Claimant's gang was observed by Manager of
Maintenance Operations in what he considered to be in violation of
Carrier's safety rules. Subsequently the Claimant was charged with:
"Your responsibility in performance of your duties as Supervisor
by allowing several safety violations to exist with yourself and
the men on your gang on Wednesday, May 13, 1987."
An investigation was held on Friday, May 29, 1987, and as a result,
Claimant was disqualified as a Foreman. The Organization thereafter
filed a claim on Claimant's behalf, challenging his disqualification.
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This Board has reviewed the record and testimony in this case and
we find that the claim must be sustained on procedural grounds.
Rule 21(a) reads:
"(a) All claims or grievances must be presented in writing
by or on behalf of the employe involved, to the officer of
the Company authorized to receive same, within sixty (60)
days from the date of the occurrence on which the claim or
grievance is based. Should any such claim or grievance be
disallowed, the Company shall, within sixty (60) days from
the date same is filed, no'if whoever filed the claim or
grievance the employe or his representative in writing of
the reasons for such disallowance. If not so notified, the
claim or grievance shall be allowed as presented, but this
shall not be considered as a precedent or waiver of the
contentions of the Company as to other similar claims or
grievances." (Emphasis added).
The rule is clear that the Company has sixty (60) days from the
date the claim is filed to notify whoever filed the claim or grievance
in writing the reasons for the disallowance of that claim. The rule
states specifically that if the filer of the claim is not so notified,
the claim or grievance shall be allowed as presented.
The record in this case reveals that the claim was appealed on
July 21, 1987, and that it was received by the Carrier on July 24,
1987, according to statements contained in the letter of the Carrier's
Manager of Labor Relations dated July 15, 1988. The Carrier did not
mail its response to the organization until September 23, 1987,
according to the postmark. Since 61 days transpired between the
receipt of the claim and the Carrier's response, the Carrier did not
respond in a timely manner. According to Rule 21(a) the claim must be
allowed as presented.
Inasmuch as this claim is being granted on the procedural
grounds, it is not necessary to discuss the merits.
2
.~. (33
AWARD:
Claim sustained.
i~
Neutral MeTbej
rrier Membe 0 ga ization Membe
Date:
NOV 2 81989
3