SPECIAL BOARD OF ADJUSTMENT
Award No. 39
Case No. 39
Brotherhood of Maintenance of Way Employees
and
CSX Transportation, Inc. (Farmer Seaboard System
Railroad)
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when
it assigned or otherwise permitted outside
farces to perform Maintenance of Way work
(rebuild a trestle) at Mile Past 5-463.3 on
the Columbia Subdivision of the
Florence/Savannah Seniority District
beginning May 9, 1994 and continuing [System
File EMS-94-102j12(95-0369) SSY].
2. As a consequence of the aforesaid
violation, the Maintenance of Way employes*
listed below shall each be allowed pay at the
bridgeman's rate far an equal proportionate
share of the total number of man-hours
expended by the outside farces in the
performance of the work in question beginning
May 9, 1994 and continuing.
*E.M. Smith E.L. White
W.A. Bradham M.N. Adkins, Jr.
D.F. Pack F.J. Reese
T.C Fitzgibbon F. Matthews
R.E. Flatt S.L. Kelly
W. Wilson E.H. Pringle
J.A. Cooper G.H. Wilker
G.W. Moore A.M. Calister
E.J. Sabb H. Kennedy
E.H. Golden
FINDINGS:
This Board, upon the whale record and all of the evidence, finds
1
and holds as follows:
1. That the Carrier and the Employees involved in this
dispute are, respectively, Carrier and Employees within the
meaning of the Railway Labor Act, as amended,; and
2. That the Board has jurisdiction over this dispute.
OPINION OF THE BOARD:
The record indicates that the Organization submitted a claim in a
July 7, 1994 letter and that the Carrier declined the claim in a
September 2, 1994 letter. The Organization initially asserted in
an April 13, 1995 letter that the Carrier had failed to respond
to the Organization's July 7, 1994 letter. In a June 6, 1995
letter, the Carrier informed the organization about the September
2, 1994 letter declining the claim. The Organization submitted
further correspondence, dated February 26, 1996, and failed to
refute the Carrier's reference to and reliance on the September
2, 1994 letter declining the claim. The Organization therefore
abandoned any objection to the timeliness of the Carrier's
declination of the claim.
Rule 40, Section 1(b) of the Agreement provides, in pertinent
part, that:
(b) If a disallowed claim or grievance is to be appealed,
such appeal must be in writing and must be taken within 60 days
from receipt of notice of disallowance, and the representative of
the Carrier shall be notified in writing within that time of the
rejection of his decision. Failing to comply with this
provision, the matter shall be considered closed, but this shall
not be considered as a precedent or waiver of the contentions of
the employees as to other similar claims or grievances. It is
understood, however, that the parties may, by agreement, at any
stage of the handling of a claim or grievance on the property,
extend the 60-day period for either a decision or appeal, up to
and including the highest officer of the Carrier designated for
that purpose.
The record indicates that the Carrier declined the claim in a
September 2, 1994 letter. The Organization next addressed the
claim in an April 13, 1995 letter. The Organization therefore
did not comply with Rule 40, Section 1(b) because the appeal by
the Organization on April 13, 1995 occurred more than 60 days
after the notice of disallowance by the Carrier on September 2,
1994. As a result, the Organization's claim is not timely.
In this regard the record omits any evidence that the parties had
agreed to extend the 60-day period for appealing the claim. Thus
the determination that the organization's claim is not timely
2
must remain in effect. Consistent with the provisions of Rule
40, Section 1(b), the rights of the parties are reserved to the
extent that the present finding may not be considered as a
precedent or a waiver of the contentions of the employees as to
other similar claims or grievances.
AWARD:
The Claim is denied in accordance with the Opinion of the Board.
Robert L. Dolas
Chairman and Neutral Member
D
V4, -
onald \1Barthol Patricia A. Madden
Employeeember Carrier Member
Dated:
19
3