USUAL MANNER IN HANDLING CLAIMS ON PROPERTY (35)

Third Division Award No. 19785 (Sickles) 

"Accordingly, a review of the record in this docket clearly shows that the Claim Petitioner is attempting to assert before this Board was not handled on the property of the Carrier in accordance with the provisions of the applicable collective bargaining agreement and as required by Section 3, First (i) of the Railway Labor Act and Circular No. 1 of the National Railroad Adjustment Board. Therefore, the claim is barred from consideration by the Division and will be dismissed."

Third Division Award No. 20078 (Lieberman)

"The record herein indicates that the claim was not processed on the property in accordance with Rule 43 of the Agreement. . . . Rule 43 provides for the submission of all claims to the officer of the Carrier authorized to receive them and a step by step procedure thereafter; this process was not followed by Claimant. The Railway Labor Act, as amended, provides in Section 3, First (i) that as a condition precedent for Board consideration disputes must be handled on the property `...in the usual manner up to and including the chief operating officer of the Carrier designated to handle such disputes.' . . . It is well settled that this Board has no authority to change rules; that prerogative belongs to Carrier and the Organization through negotiation."

Third Division Award No. 20091 (Lieberman)

"The record shows that the alleged dispute covered by this docket is not properly before this Board for the reason that it was not handled `in the usual manner' as provided for in Section 3, First (i) of the Railway Labor Act, as amended and as set forth in Rule 11 (i) of the January 1, 1967 Agreement between the REA Express, Inc., and the Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers and Express Station Employes. See Awards 6506 and 11212."

Third Division Award No. 20224 (Eischen)

"Careful scrutiny of the record shows that the claim asserted before this Board was not progressed on the property in accordance with the requirements of Section 3; First (i) of the Railway Labor Act and Circular 1 of the National Railroad Adjustment Board. Claimant disregarded Rule 11 of the controlling Agreement. . ."

Third Division Award No. 24147 (No Referee)

"The initial question before this Board is whether Claimant's petition to the Third Division was properly filed in accordance with provisions of the controlling agreement and the applicable Rules of this Board. From the record submitted to this Division, it is apparent that Claimant was clearly obligated to file the instant claim with this Board within nine (9) months of date of declination by Carrier's highest officer authorized to handle claims. . . . The record is barren of any such handling in the usual manner as prescribed in the Railway Labor Act. The Rules of this Board are uniformly applicable to the national railroad industry and implicitly indexed to the time limit provision of the collective bargaining agreements regulating the labor relation functions in the industry."

Fourth Division Award No. 4683 (McAllister)

"The jurisdiction of this Board is determined by applicable provisions of the Railway Labor Act. Accordingly, we have consistently held that under Section 152 of the Act, which defines the purposes of the Act, and Section 153, First (i) of the Act, our jurisdiction is confined to disputes which flow from grievance provisions provided for by the parties under a collective bargaining agreement which provides for the protection sought. See Fourth Division Awards 4410, 4510, 4508, and 4548. This Board has carefully researched the asserted standing of the Claimant and finds no basis to conclude that Congress intended that claims, without benefit of a labor agreement providing for grievance procedures, comes within the purview of the Board.

"Respondent promulgated procedures for handling claims and grievances which require an employee to notify its highest appeals officer in writing that his/her decision is not acceptable within thirty (30) days of that officer's decision. Thus, even if the procedures could somehow be raised to the status of an Agreement, the Claim would be barred because the Claimant did not comply with its time limits. Notwithstanding the above, we stress that the record contains no evidence this claim was progressed on the property through conference discussion as required by Section 152, Second and Sixth. See Fourth Division Awards 863, 978, 1098, 1433, 2421, and 3045."

Second Division Award No. 12074 (Suntrup)

"The Board has reviewed the record and must conclude that this claim is procedurally defective. In accordance with Rule 30 the claim should have been addressed first to the Locomotive Department's Supervisor - Mechanical Services, and then to the Locomotive Superintendent. The reasoning found in Second Division Award 6555, applicable to this case, is cited here with favor by the Board. That Award states, in pertinent part, the following:

"'The record in this case discloses that the claim was not handled on the property in accordance with the applicable rule . . . of the collective bargaining Agreement. The claim was . . . nor was it presented to the appropriate officers of the Carrier on the property, in accordance with the Agreement. Lack of experience in the procedure cannot overcome this deficiency (see Award 5250).

"'"Section 3, First (i), of the Railway Labor Act provides in part:

"'. . . disputes between an employee . . . and a carrier . . . growing out of grievances . . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board . . .'

"It is apparent from the record that the claim in this case was not handled on the property of the Carrier in accordance with the provisions of the applicable Agreement and as required by Section 3, First (i) of the Railway Labor Act and Circular No. 1 of the National Railroad Adjustment Board. The Claim is therefore barred from consideration by this Division and will be dismissed."'

"(See also Second Division Awards 2240, 5250 and 11665).

"Claim dismissed."

First Division Award No. 24142 (Fredenberger)

"The Board is left with a record consisting of the statements of the Claims on the timeslips and the Carrier's denial thereof. Our review of those documents leads us to conclude that nothing therein supports the Claims in this case. The Organization's arguments, including citations to Rules, in support of the Claims are not affirmatively shown by the record in this case to have been handled on the property. Accordingly, they are barred by Circular No. 1 of this Board. Moreover, the record in this case does not show that the dispute was handled 'in the usual manner' on the property as required by Section 3 First (i) of the Railway Labor Act, 45 U.S.C. § 153 First (i). It follows that the Claims must be dismissed. See First Division Award 23883."

Third Division Award No. 29336

"There is no evidence on the record before us that the Claimant presented a Claim to the Carrier under the applicable Agreement. Nor is there any evidence on the record indicating he attempted to handle the alleged dispute on the property in accordance with the Agreement. Further, there is no indication in the record that a conference was ever requested or held between the parties. As a result of the Claimant's failure to comply with the Agreement, the Claim has not been processed as required by the Railway Labor Act and Circular No. 1 of this Board.

"Section 153, First (i) of the Railway Labor Act requires that disputes `...shall be handled in the usual manner up to and including the chief operating officer of the Carrier designated to handle such disputes....' Circular No. 1 of this Board provides:

"`No petition shall be considered by any division of the Board unless the subject matter has been handled in accordance with the provisions of the Railway Labor Act, approved June 21, 1934.'

"This Board is compelled to dismiss the Claim for failure of the Petitioner to comply with the jurisdictional mandates of the Railway Labor Act, as amended. As was stated in Third Division Award 24759:

`The requirements of collective bargaining contract and the law that a claim be processed "...in the usual manner..." on "the property" are much more than mere procedural niceties. If a grievance is not properly filed and processed, the underlying issue is never subjected to necessary adversarial testing. Moreover, of critical significance is the fact that no record is generated to be used as a basis for this Board's essentially "appellate" deliberative and decision-making processes.'

"The allegations made by the Claimant thus have no standing for review by this Board."

First Division Award No. 24160 (Zusman)

"After full consideration of the instant dispute, the Board must dismiss the instant Claim for failure to comply with the jurisdictional mandates of the Railway Labor Act, as amended. There is no record of an unadjusted dispute on the property. The Board is unable to consider this Claim as Agreement provided steps of appeal were not followed. This Claim was not properly progressed on the property and stands de novo, without being handling in the `usual manner' as required by Section 3, First (i) of the Railway Labor Act and Circular No. 1 of the Board.

* * *

". . . When the Claimant failed to file a proper address with the Carrier, he failed to protect his employment. This dispute reached the Board without any on property Claim having been filed with a Carrier officer. Therefore, the Board lacks jurisdiction to consider the Claim."

First Division Award No. 24159 (Zusman)

"Additionally, the burden of proof has not been met to demonstrate that the usual handling required by Section 2, Second and Section 3, First (i) of the Railway Labor Act, as amended was followed in the case at bar. The Claimant, who handled his own case, has failed to prove that the procedural requirements of the Act were met. There is insufficient proof that a conference was held on the property. The submitted intraorganizational correspondence does not carry sufficient probative weight to carry the burden of proof (First Division Awards 22718, 22428, 22101).

"Accordingly, it is not possible for this Board to reach the merits of the case. Based upon the record, the Claim is procedurally defective and must be dismissed."

First Division Award No. 24199 (Goldstein)

"After careful consideration of the record in its entirety, we concur with Carrier's position that the Claim must be dismissed. Claims or grievances must be handled in the usual manner up to and including the chief operating officer of the Carrier designated to handle such disputes pursuant to Section 3, First (i) of the Railway Labor Act as amended and Circular No. 1 of the Board. Since no claim or grievance was progressed to and handled by the final appeal officer nor discussed in conference prior to the submission by Claimant of this dispute to the Board, it is clear that the instant dispute has not been handled in the `usual manner' as required. See First Division Awards 24084, 24039 and Third Division Awards 28896, 28595."

First Division Award No. 24200 (Goldstein)

"It is noted that there is no record on the property that Claimant submitted a roster appeal to the Area Manager designated to receive such appeals at Step One of the grievance procedure in accordance with Article 25.1 of the collective bargaining agreement. Claimant initiated his claim with the General Manger, the Carrier's highest designated officer. In addition, there was no conference held prior to the Submission by the Claimant of this dispute to this Board. Accordingly, we must find that the claim was not handled on the property as provided by the collective bargaining agreement and Section 3, First (i) of the Railway Labor Act which requires the parties to handle the dispute in `the usual manner' up to and including the chief operating officer of the carrier designated to handle such disputes."