YARDMASTER DEPARTMENT AWARDS

ORGANIZATION CLAIM NOT FATAL IF PROCEDURAL ISSUES ARE NOT IN STATEMENT OF CLAIM (36)

AWARD # REFEREE RAILROAD
Fourth Division Award 4585 Zusman Baltimore and Ohio
Fourth Division Award 4586 Zusman Baltimore and Ohio

Fourth Division Award No. 4585 (Zusman), adopted November 19, 1987 

"The Carrier representative maintains that the procedural argument was never cited in the Statement of Claim and is, therefore, beyond the jurisdiction of this Board. Jurisdictional issues can be raised at any time in the progression of a Claim (Third Division Awards 20832, 20165, 19527). Circular No. 1 relates to the form of the Submission stating that the Statement of Claim 'must clearly state the particular question upon which an award is desired.' Carrier's representative notes that there is decisional authority which holds that a failure to include procedural issues in the Statement of Claim before this Board is fatal and, as such, any such prior arguments are waived (Third Division Awards 21543, 19790, 19507, 19306, 18239, 17525, 17512, 16955, 15523, 10904, 8426, 6954).

"We have carefully reviewed each of the above-cited Awards and find that only Third Division Award 21543 stands on point with the issue at bar. All other Awards relate to arguments made which were not a part of the Claim on the property, or substantive issues and Rules raised which were waived on the property prior to appeal. In Award 21543 we have a procedural time limit issue which is rejected in that the 'claimant failed to make this a part of his formal statement of claim.' The reasoning of that Award is twofold. First, that a review of prior Awards finds only one exception (Third Division Award 20763) 'contrary to the general view reflected in the Awards that the time limits issue must be included in the formal claim' and second, that the procedural issue was not firmly grounded.

"The procedural issue before us was raised on the property and has been `handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such dispute.' Unlike Award 21543, which stated that 'no other evidence or comment was made concerning the time limit rule on the property,' the issue before us was firmly grounded on the property and discussed in the usual manner before this Claim came to the Board. Unlike Award 21543, the Organization's representative argues that past disputes between the same parties have ruled on procedural objections wherein the Claim did not cite such Rule or issue to be decided. In Fourth Division Awards 2917 and 1789 the procedural issue was denied. In Fourth Division Awards 4211, 4042 and 3797, the Claim was sustained on procedural grounds although it was not mentioned in the Statement of Claim before the Board. Accordingly, we will reject the jurisdictional argument."

Fourth Division Award No. 4586 (Zusman), adopted November 19, 1987

"This issue, and that of the jurisdiction of this Board to hear such procedural issues which are not a part of the formal Statement of Claim, have been ruled upon in a similar case which stands as dispositive of this Claim (see Fourth Division Award 4585). . . ."


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Last modified: April 29, 2005