YARDMASTER DEPARTMENT AWARDS

OFFICER SPECIFIED TO RECEIVE CLAIM SHOULD BE OFFICER TO REPLY (54)

AWARD # REFEREE RAILROAD
Second Division Award No. 11952 Fletcher Burlington Northern
Third Division Award No. 4529 Wenke Reading Company
Third Division Award No. 16508 Zack Louisville & Nashville
Third Division Award No. 17696 Dugan Illinois Terminal
Third Division Award No. 22710 Mangan Chicago, Milwaukee, St Paul & Pacific
Public Law Board No. 2719, Awd 1 Sickles Norfolk and Western
Special Board of Adjustment No. 863, Award No. SE-40-F O'Brien Norfolk and Western
Special Arbitration Board Suntrup UTU-YD vs. CSXT (B&O)
Fourth Division Award No. 4753 Zusman UTU-YD vs. CSXT (B&O)

Third Division Award No. 4529 (Wenke)

"We think the rule requires that a decision actually has to be made by the officer of the Carrier on whom that responsibility has been placed, which in this case was Manager Keene, within the time as therein specified, that Rule 22 requires that he give his reasons for so doing if the claim is disallowed, and that the employe and his representative be notified thereof in writing within the time as required by Rule 44 (c). Having failed to comply with Rule 44 (c) the claims, by the express provision thereof, must be allowed. Nor does the provision of the rule contemplate, when it is applicable, that the merits of the claim shall be considered. Consequently, we shall not do so."

Third Division Award No. 16508 (Zack)

"Carrier under Rule 26(a) had the right to authorize who would receive claims. It agreed with Organization as to who would receive claims and on appeal procedure thereafter. Carrier was obligated under this Agreement to have the Division Engineer decline the claim within the time provided. It had no authority to refer the claim to a higher official and thus deny Organization's right to a specifically agreed upon level of appeal. (Hamilton 14031.) Nor did the Chief Engineer have the right to deny the claim at this stage under the terms of the May 13, 1960 letter. (Dorsey 11374.)"

Third Division Award No. 17696 (Dugan)

"We agree with the Organization that Carrier violated Section 1(a) of Article V of the August 21, 1954 Agreement when it permitted Roadmaster Mingus to decline the claim rather than Assistant Division Engineer of Track, A. W. Wilson, to whom the claim was presented. Therefore, we will sustain the claim."

Third Division Award No. 22710 (Mangan)

"A dispute similar to this one was adjudicated by this Division some fifteen years ago. In that Award #11374, the authorized officer was a chief carpenter - the response to the claim was made by Carrier's Division Engineer and the Division then held:

"`Petitioner has the right to reply upon Carrier's freely made designations of Carrier's representatives authorized to process claims from inception through appeals on the property. Consequently, any decision, relative to the claim, communicated to Petitioner by the Division Engineer, is not material.'

"Other Awards that have followed the same principle are Nos. 4529, 16508, 17696, 18002, 21297, 19946, 21889 and 9760.

"We have reviewed the authority submitted by the parties. The great weight of authority supports the position of the Organization that the Carrier committed a procedural error when an official other than the one designated to receive and process the claims responded to the claims.

"We agree with the Organization that the Carrier violated Rule 47-1 (a) when it permitted Division Manager F. A. Barton to decline the claims rather than the Assistant Division Manager R. T. Pearson to whom the claims were presented. Therefore, we will sustain the claims. Nor do the provisions of the rule contemplate, when it is applicable, that the merits of the claims shall be considered, consequently, we shall not do so."

Special Board of Adjustment No. 863, Award No. SE-40-F (O'Brien)

"The only issue before this Committee is whether the Carrier complied with Section 17, the Time Limit on Claims Rule, of the August 11, 1948 National Agreement. Section 17, Paragraph (a) provides, in pertinent part:

"`(a) All claims or grievances must be presented in writing by or on behalf of the employee involved, to the officer of the company authorized to receive same, within sixty days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Carrier shall, within sixty days from the date same is filed, notify the employee or his representative of the reasons for such disallowance. If not so notified, the claim or grievance shall be considered valid and settled accordingly.'

"The facts giving rise to the instant dispute are uncontroverted. The claim was initially submitted to the Division Road Foreman of Engines, J. E. Glover, by Engineer J. R. Taylor on July 19, 1974. Under date of July 24, 1974, a form letter over the mimeographed signature of former Division Road Foreman of Engines, O. A. Goff, was mailed to Engineer Taylor informing him that his claim was declined, Mr. Goff had retired from Carrier's service on July 1, 1974.

"This Committee interprets Section 17(a) to require that if a claim is to be disallowed, the officer of the company authorized to receive the claim must be the individual who disallows the claim. In the instant dispute, that officer was Division Road Foreman of Engines, J. E. Glover. Inasmuch as Mr. Glover was not the officer of the company who disallowed Engineer Taylor's claim, we hold that Section 17(a), Time Limit on Claims, of the August 11, 1948 National Agreement was thereby violated."

Fourth Division Award No. 4753 (Zusman)

"A review of the Agreement provides in Article 21 that the Organization should file its claim or grievance `to the Officer of the Carrier authorized to receive same.' This the Organization did when it appealed to Mr. Smirl. The same Article states that `the Carrier shall' respond. The Carrier did respond in its letter from Mr. Gibson and in so doing did not violate the Agreement (Second Division Award 10066)."

Special Arbitration (UTU-YD vs. CSXT (B&O)) (Suntrup)

"Nextly, the union contends that there was a procedural flaw because the initial appeal by the union officer was not handled by the proper company officer. The first appeal was addressed to Division Manager Hutson in Baltimore by the union representative. At least one conference took place over this issue between the latter and other Carrier officers, in order to attempt a settlement, prior to declination of the appeal by the Superintendent of Operations Gibson. Rule 21(a) does not state that the same officer to whom the appeal is addressed need necessarily rule on it. It only states that the `...Carrier shall, within sixty (60) days...' notify the concerned parties of the `reasons for such disallowance'. There was no violation of the Agreement by the manner in which the declination(s) were handled and this objection must be dismissed."

Second Division Award No. 11952 (Fletcher)

"A number of Awards have concluded that the term `Carrier,' as found in the context of this style time limit rule, does not require that the officer with whom the claim has been filed make the denial. These Awards conclude that claims are proper denied, if done so timely, by any Carrier officer. In this regard see Third Division Award 27590."

Public Law Board No. 2719, Award No. 1 (Sickles)

"The Board has noted the lack of uniformity of opinion in the cited Awards concerning the question of whether or not it is required, under language such as Rule 11(a), that the same individual who received the claim answer same. However, we find it unnecessary to issue a decision in that regard in order to dispose of the dispute. Assuming, without deciding, that the Carrier is correct in its interpretation of Article 11(a) concerning the just mentioned question, we are then left with the problem of elimination of a step in the appeal procedure, and we conclude that if the Carrier's action accomplishes that result, there has been a violation of the agreement.

"The parties agreed to a certain procedure for resolving disputes which contains an appellate process. We do not presume to substitute our judgment for the parties' in that regard. For reasons best known to them, they agreed that such a procedure was to be followed in an effort to resolve disputes in an orderly manner. Further, the Carrier then designated the identity of the officials to whom the claim and the appeals should be processed. When the Carrier, by its unilateral action, substitutes a decision on the merits by 2 individuals for a judgment by 3 individuals, the Carrier has violated the specific terms of the understanding of the parties and, accordingly, we have no alternative but to find that in this particular case, when the Superintendent served as both the individual who declined the claim and the individual to whom appeal was to be submitted, there is a violation."


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Last modified: April 29, 2005