BOARD CANNOT CONSIDER ISSUES OR ARGUMENTS NOT HANDLED ON PROPERTY (43)

Fourth Division Award No. 4195 (Suntrup) 

"Nowhere in the record can the Board find evidence that either Parts 1 or 2 of the Statement of Claim were handled on property `in the usual manner' prior to September 16, 1983. The Carrier is, therefore, in contravention of both Section 3 First (i) of the Railway Labor Act and of the procedural requirements of Circular No. 1 issued by the National Railroad Adjustment Board on October 10, 1934. The former requires that claims be handled `...in the usual manner up to and including the chief operating officer of the Carrier...', and the latter requires that: `(n)o 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'. Numerous Awards emanating from this Board have barred such claims as the instant one (Third Division Awards 24759, 24801, 25097; Fourth Division Award 4074 inter alia).

"The Carrier states that `the instant case is before the Board in compliance' with an Order of a U. S. District Court Judge for the District of Massachusetts who verbally instructed the Carrier on September 12, 1983 to file claim with the National Railroad Adjustment Board. Such Order does not nullify, however, the jurisdictional bounds and powers of this Board as stipulated by the Railway Labor Act with respect to claims not handled in the usual manner on property.

"Further, this Board has no authority to interpret Federal Law as so requested in Part 2 of the Statement of Claim. The Board is limited to `questions arising out of the interpretations and applications of railway labor Agreements' (Third Division Award 19790; also Third Division Award 20368 and Second Division Award 6462).

* * *

"Claim dismissed."

Fourth Division Award No. 2300 (Coburn)

"The Employes have objected to the Board's consideration of certain documents offered by the Carrier in its ex parte submission (at pp. 7-8, and 10 through 22) for the reason that this evidence was never made of record or presented to the Employes during the handling of the claim on the property. There is merit in that contention. Under the provisions of the Railway Labor Act, as amended, and this Board's Rules of Procedure (Circular No. 1) such evidence is inadmissible. Accordingly, it will be given no consideration here." (Emphasis supplied).

Fourth Division Award No. 2305 (Coburn)

"This Board is an appellate body. We may consider only the claim filed and the record made on the property. The parties may not, for the first time, introduce evidence in the proceedings before this Board other than by stipulation. The parties may not properly raise issues before this Board that are not in the record made on the property."

Fourth Division Award No. 1865 (Weston)

"In its submissions and arguments before this Board, Petitioner also contended that Carrier violated Rule 10(a) which provides that charges against a Yardmaster must be clear, complete and in writing. This point was never raised on the property, so far as the record shows, and the parties had no opportunity to exchange views and explore the issues regarding it. Under the circumstances, we cannot properly consider the argument belatedly raised by Petitioner as to Rule 10(a). See Awards 246, 474, 757 and 1688."

Fourth Division Award No. 1541 (Indv. v IC)

"On appeal to this Board, the basis of claim was changed from reimbursement as a matter of lenience to reinstatement with reimbursement for all time lost. It is evident the claim as now amended was never handled on the property as required by Section 3, First (i) of the Railway Labor Act and must be dismissed."

Third Division Award No. 21441 (McBrearty)

"After a careful review of the record in the instant case, the Board finds that the only rules cited and relied upon by the Petitioner in the on-property handling were 2 (c), 30 (b) and 30 (f). However, in its submission to the Board, Petitioner has cited Rule 1 (Scope), all of Rule 2, Rule 8 (a), Rule 30 (b) (f) and (g), Rule 5 (a), and Rule 26 (b) and (c).

"On these facts there can be no doubt that the claim as presented to the Board is not the same claim that was handled on the property and, consequently, there is no proper claim before the Board for is consideration. ..."

Third Division Award No. 10789 (Ray)

". . . It is a well established rule that this Board will not consider contentions or charges which were not made during the handling of the case on the property. Award 5469 (Carter) . . ."

Third Division Award No. 14641 (Brown)

"Our well-settled rules or procedure require that we limit our consideration to the issues properly raised on the property. NRAB Circular No. 1, Award 11128 and others."

Third Division Award No. 18656 (Devine)

"It is so well settled as to require no citation that this Board, in adjudicating disputes, may not consider issues or defenses not raised by the parties in the handling on the property."

Third Division Award No. 19101 (Dugan)

"Upon presentation of the claim to this Board and Employes introduce argument to the effect that . . . No such contention or showing was specifically made during handling on the property, and Carrier objects to its injection at Board level.

"Carrier's objection must be sustained on the authority of a multitude of awards holding that only issues that were raised during handling on the property may properly be considered by the Board."

Third Division Award No. 19746 (Lieberman)

"First, with respect to the argument on the suspension, it should be noted that this matter was not raised on the property. In numerous awards, over a long period of time we have consistently held that charges or arguments which were not raised on the property cannot be considered by the Board; for this reason we will not consider the suspension issue."

To the same effect see Third Division Awards 11252 (Moore), 13181 (West), 13344 (Hutchins), 13707 (Mesigh), 15572 (Ives), 16268 (Perelson), 16727 (Engelstein), 16887 (Goodman), 17069 (Goodman), 17966 (Devine), 18122 (Dorsey), 18247 (Dugan), 18353 (Dorsey), 19306 (Devine), 19454 (Cole), 19594 (Brent), 19861 (Blackwell), 19928 (Lieberman) and 8324 (McCoy).

Fourth Division Award No. 4707 (Carter)

"Before discussing the merits of the dispute, the Board is faced with the contention of the Organization of alleged procedural errors in the appeal process on the property. In its Submission to the Board the Organization contends that the same Carrier officer issued the charge against Claimant, issued the notice of discipline, and was the first level appeal officer, thus depriving Claimant of proper appeal procedure. We have reviewed the correspondence covering the handling of the dispute on the property, and we find that no procedural issue was raised concerning the appeal procedure accorded Claimant. This Board, being an appellate tribunal, may only consider issues raised by the parties in the handling of the dispute on the property. New issues and new defenses may not properly be raised for the first time before the Board."

Third Division Award No. 29163 (Goldstein)

"Carrier contended on the property that the claim was improperly filed and that it was not received by the Division Engineer, the officer designated to receive claims, until February 23, 1987. In its Submission before the Board, Carrier argued for the first time that the Division Engineer in Baltimore was the only authorized Carrier Officer to receive claims, and that, since the Organization had been properly notified of that fact, the original claim was sent in error to the Division Engineer in Pittsburgh, Pennsylvania. We are precluded from considering this information, however, as it was not raised during the handling of this dispute on the property. Given the state of the record actually before us, we are compelled to conclude that Carrier's general assertions on the property cannot serve to defeat the Organization's claim. The evidence shows the claim was filed on February 20, 1987, when a Carrier agent acknowledged receipt thereof. The Organization asserted that the claim was properly addressed and presented to the officer, Division Engineer C. L. Bailik, authorized by the Carrier to receive claims. If the Organization was in error, Carrier was obligated to demonstrate that fact with probative evidence on the property. Instead, the record shows that the claim was disallowed by Division Engineer Hardy on April 24, 1987, beyond the 60-day time limit. The claim must be allowed as presented."

Third Division Award No. 29227 (Zamperini)

"In addition to the above arguments, the Organization raised a procedural issue before the Board. They contended the discipline should be overturned because the Hearing Officer did not issue the discipline after reviewing the transcript of the Investigation, but rather, another officer of the Carrier, who had not attended the Hearing, made the decision. The Organization raises a very salient point. However, a review of the relevant correspondence between the Parties, does not show that the issue was raised on the property. Therefore, it is not properly before this Board and has not been considered."

First Division Award No. 24142 (Fredenberger)

". . . 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."

First Division Award No. 24148 (Twomey)

". . . Our decision in this case is strictly limited to the resolution of the matters handled on the property and now properly before this Board. We can take no position on the factual theories of this case presented for the first time in the Organization's Submission."

First Division Award No. 24150 (Twomey)

"This Board is an appellate tribunal, which resolves `minor disputes' when the parties are unable to do so themselves, after due consideration and handling in the usual manner on the property.

"The parties must present the essentials of their case to each other on the property. If the parties are unable to adjust the dispute, it is the case which the parties presented on the property which is appealed to and considered by this appellate tribunal. New matters, not handled on the property, are not properly before this Board. This is required by basic fairness, for an opposing party would not have the opportunity to effectively challenge or rebutt factual assertions or theories not handled on the property which are presented for the first time in the parties' Submissions to the Board.

"We must confine ourselves to those matters handled on the property. . ."

Third Division Award No. 29264 (Goldstein)

"After careful review of the record in its entirety, the Board at the outset finds that Carrier's timeliness argument is not properly before us for consideration, as it was never raised during the handling of this dispute on the property. It is so well-established as to preclude the necessity of citation that such procedural objections must be set forth in a timely fashion before submission of the dispute to this Board or the objections are deemed waived."

Third Division Award No. 29851 (Eischen)

"From evidence Carrier produced on the property, Carrier did not carry that burden. If Carrier had produced such evidence on the property, rather than de novo, this case may have been decided differently. However, it is well established that a party may not introduce arguments for the first time before this Board. Such tactics circumvent the Railway Labor Act's emphasis on resolving issues on the property and are flatly barred by Board Circular No. 1."

Third Division Award No. 30122 (Simmelkjaer)

"Finally, the Organization raised the issue of whether Claimant received a fair and impartial Investigation. Since this issue was not raised on the property, the Board, in its appellate capacity, cannot address the matter on this level."

Third Division Award No. 30414 (Mason)

"In arriving at our decision in this case, we have given no consideration to the arguments from either party which were advanced for the first time before the Board. All such first-time arguments from either party are summarily dismissed."

Third Division Award No. 30631 (Scheinman)

"As noted below, pursuant to fundamental principles of railroad labor relations, arguments not raised on the property may not be raised in the first instance in an adjudication before this Board. Thus, having failed to allege on the property that the Dispatchers named by the Organization had received additional training before being permitted to work on Desk "H", Carrier may not property raise such an argument before this Board. Based upon this narrow ground, the Organization’s claim is sustained."

Second Division Award No. 12627 (Muessig)

"Before addressing the merits, the Board notes that certain issues have been presented for the first time in the submissions to the Board. Pursuant to the Railway Labor Act, these will not be considered in our deliberation because they were not raised on the property."