ORGANIZATION CLAIM NOT FATAL IF PROCEDURAL ISSUES ARE CITED IN NOTICE OF INTENT TO N.R.A.B (36A)

Second Division Award No. 12266 (Marx)

"The Carrier argues that the Board has no authority to consider this aspect of the dispute, since the Organization 'did not claim a time limit violation on its notification of intent to file an ex parte submission to the Board.' The Carrier notes that Circular No. 1 requires such notice 'to include the particular question on which an Award is desired.' The Carrier cites as support Third Division Award 21543, which states:

"`We need consider only that the claimant failed to make this [the time limit rule] a part of his formal statement of claim.'

"In this instance, the Organization specifically referred in its appeal letters on the property to its contention of time limit violation, and the Carrier responded thereto. (The Carrier's response was not a denial of the violation but rather a contention that any resulting liability should properly cease upon the Carrier's allegedly late response.) This is not an instance where a procedural matter is raised in the first instance before the Board.

"There has been extensive previous review of the issue of the Board's jurisdiction to hear a contention of time-limit violation in the absence of it being specifically mentioned in the formal Statement of Claim to the Board. The Board will not attempt to summarize here the various findings on this subject. First Division Award 23931 examines the question in full, making reference to Awards of the First, Third and Fourth Divisions, including Third Division Award 21543 quoted above. Based on this survey, First Division Award 23931 concludes:

"`In this Claim, . . . the time limit issue was raised by the Organization in the on-property handling in support of the Claim and we do not have evidence that inclusion of alleged time limit violations in the formal Statement of Claim has been a consistent requirement of the First Division. Accordingly, the request that we dismiss the matter because of a failure to include the time limit issue within the Statement of Claim is rejected.'

"The Board adopts this reasoning in this instance. Here, the Carrier was aware on the property of the Organization's position and responded to it. The omission of the issue from the formal Claim put the Carrier at no disadvantage."