CLAIMANT NOT NAMED (40)

Third Division Award No. 23458 (Ordman) 

"Carrier's initial defense, procedural in nature, is that the claims herein must be dismissed because Claimants are unidentified and not readily ascertainable. Substantively, Carrier asserts that the work in dispute was not transferred to others but merely eliminated, hence, not subject to the Scope Rule. Alternatively, Carrier argues that the claims are, in any event, excessive, because there was no reduction in Carrier's work force or loss of earnings resulting from the change in procedures with the consequence that any compensation to claimants would constitute a penalty payment unauthorized by the Agreement.

"Carriers procedural defense that the claim herein must be dismissed because the Claimants are unidentified and not readily ascertainable is jurisdictional in nature and must be disposed of at the outset.

"The 'Statement of Claim' does not name the Claimants but, instead, describes Claimants as the `senior unassigned and/or furloughed employe and/or their successor or successors in interest.' Rule 21(a) of the Agreement, upon which Carrier relies, provides, in relevant part:

"`(1) All claims or grievances must be presented in writing by or in behalf of the employee involved...'

"Provisions of this kind have not been uniformly construed but, as Carrier concedes, the cardinal rule which seems to prevail is that the Claimant or Claimants must be named or must be readily or clearly identifiable. We concur with the formulation. See Awards 10379 (Dolnick); 10871 (Hall); 9205 (Stone); 10426 (Rock). Nor is a Carrier obliged in such a situation to search its records to develop a claim for the employes. However, as the cited awards demonstrate, as long as the parties can readily ascertain, from the identification furnished, the individual or individuals on whose behalf the claim is filed, the purpose and intent of Rule 21 or like provisions are satisfied. In the instant case the reference to the senior unassigned and/or furloughed employe is quite specific and the name of the Claimant can be expeditiously determined from records which Carrier maintains. Carrier's procedural defense of inadequate specificity in the identification of Claimants is rejected."

Fourth Division Award No. 3719 (Franden)

"The carrier's defense that a named claimant does not appear in the statement of the claim is both ill-timed and without merit. The awards supporting the organization on this point are legion."

Third Division Award No. 10379 (Dolnick)

"The case at hand is easily distinguishable from those cited above. Here, the Organization seeks compensation for `the senior employe under the agreement, extra in preference.' That `senior employe' is readily identifiable from the extra seniority list which the Carrier is obliged to maintain. The Organization and the Carrier are both aware how and where the Claimant's identity can easily be ascertained. It is not the purpose of the Board to construe the language of a contract strictly upon the literal meaning of the words. The purpose and intent of the parties must be considered and applied to the language in the Agreement. It is sufficient that the parties know on whose behalf the claim is filed, whether the individual or individuals are named or are readily identifiable. The claim in this case complies with this intent.

"The same is true with Organization's claim that such senior Employe, extra in preference, be compensated for each day listed in the Statement of Claim `and for each day thereafter on which such violations occur, which days are to be determined by a joint check of Carrier's records.' There is nothing indefinite or vague about the claim. Section 3 of Article V of the August 21, 1954, permits the filing of one claim for a `continuing violation of the agreement.' The records are generally in the possession of the Carrier. It is not contrary to the provisions of this Agreement, nor is it vague and uncertain, to ascertain violations `by a joint check of Carrier's records.'

"The Carrier also contends that this claim was not `continuing,' because the Organization made its claim for seven specific dates in a period of 44 consecutive days. A `continuing violation' does not mean that contract violations must be on a `consecutive day' basis. To so hold would be a miscarriage of intent and a reasonable construction of the Agreement. Award No. 9205 (Stone) fully supports this conclusion."

Fourth Division Award No. 1319 (Gilden)

"A claim brought on behalf of `the senior unplaced extra yardmaster' on certain specified shifts and dates, being of sufficient clarity to reasonably enable the Carrier to ascertain the identity of the person seeking redress, is adequate compliance with the requirements of Rule 9 (a). When the complainant is thus identified, the failure to include the actual name of the employe involved is not a fatal defect. We find no procedural flaw on this score, and, therefore, we now turn to a consideration of the merits."

Third Division Award No. 5078 (Coffey)

"The Carrier first objects to the Board considering the claims of unnamed persons under the designated category `all other employes', because, the Carrier says, this would be in violation of Rule 42, `Claims for Compensation', quoted elsewhere in this record.

"The objection is without merit. Rule 42 is primarily a safeguard against stale claims. It contemplates the filing of class actions where more than one claimant is involved, since the right of the `duly accredited representative' to file and prosecute claims on behalf of its members is recognized. To require the filing of separate claims would result in a multiplicity of claims and would but serve to encumber the record. Particularly is this true where there is the possibility, as here, of a continuing violation. While it would be the better practice to name all persons seeking redress in the one claim, the Board frequently entertains claims for compensation where no employes are named. See Awards 3251, 3256, 3687. The reason therefor is manifest. The Board's primary function is to settle disputes involving fundamental differences between parties to an agreement, leaving to them the details of applying its Awards.

"In Awards relied on by the Carrier in its brief, to support is objections, claims were entertained in all but one case. Award 4372, by inference, lends some support to the Carrier's position. There the claim was remanded for further handling, after it had been observed that the Carrier had written twice for the names and finally was given the name of one employe whose claim had been denied initially and no appeal taken. In the instant case the Carrier made no objection of record to the form of claim until it had reached the Board. Being of the opinion that to follow Award 4372 and remand the claim would serve no purpose other than to delay settlement of the dispute and no good reason being assigned why the Carrier would be at a disadvantage in applying such Award as may be made, the Board finds no merit in the Carrier's objections."