YARDMASTER DEPARTMENT AWARDS

AWARDS 66A - NO CONFERENCE REQUESTED OR HELD ON PROPERTY

AWARD # REFEREE RAILROAD
First Division Award 24159 Zusman CSX Transportation (C&EI)
First Division Award 24199 Goldstein New Jersey Transit
First Division Award 24200 Goldstein NY Susquehanna & Western
First Division Award 24433 Richter CSXT (Former L&N)
Third Division Award 28896 None Montour Railroad
Third Division Award 29231 Fredenberger Chicago Central & Pacific
Third Division Award 30114 Mason Duluth, Winnipeg & Pacific
Third Division Award 30564 Wesman Elgin, Joliet & Eastern
Third Division Award 31773 Eischen CSXT (Former L&N)
Third Division Award 31837 Wallin Elgin, Joliet & Eastern
Fourth Division Award 4931 Richter AMTRAK

Third Division Award No. 28896 (No Referee)

"Section 152, Second of the Railway Labor Act provides:

`All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.' 45 U.S.C. 152, Second. (Emphasis added.)

"Disputes must be handled in the usual manner which includes the parties' obligation to hold a conference on the property to discuss the claim before the dispute is ripe for adjudication by this Board. Id.; 45 U.S.C. 153, First (i). The mandatory conference not only permits an in-depth discussion of each party's evidence to avoid undue surprise at the later, formal adjudicatory stage (if necessary) but it also encourages the parties to explore all avenues of possible settlement to promote the voluntary resolution of disputes. Had Claimants and the Carrier held a conference, they might have been able to reach a mutually satisfactory accommodation on this claim. The Railway Labor Act's dispute resolution process is designed to force the parties to attempt to reach a settlement even if one party perceives little likelihood of successfully resolving the case before resorting to the Board. The parties must cultivate any possibility of settlement. Inasmuch as there is no record of the parties conferencing this claim on the property, we lack jurisdiction to address the underlying merits of this case. See Third Division Awards 25346, 24259, 22629."

Third Division Award No. 29231 (Fredenberger)

"The Carrier alleges that nothing in the record establishes that there was a conference held on the property with respect to the Claim. Our review of the record confirms the Carrier's contention. Section 3, First (i) of the Railway Labor Act, 45 U.S.C. § 153, First (i) requires such a conference and, as Circular No. 1 of this Board clearly states, we lack jurisdiction to consider any Claim which has not been the subject of a conference on the property. See Third Division Awards 27482 and 26867, Second Division Award 7155, and First Division Award 23883."

First Division Award No. 24159 (Zusman)

"Additionally, the burden of proof has not been met to demonstrate that the usual handling required by Section 2, Second and Section 3, First (i) of the Railway Labor Act, as amended was followed in the case at bar. The Claimant, who handled his own case, has failed to prove that the procedural requirements of the Act were met. There is insufficient proof that a conference was held on the property. The submitted intraorganizational correspondence does not carry sufficient probative weight to carry the burden of proof (First Division Awards 22718, 22428, 22101).

"Accordingly, it is not possible for this Board to reach the merits of the case. Based upon the record, the Claim is procedurally defective and must be dismissed."

First Division Award No. 24199 (Goldstein)

"After careful consideration of the record in its entirety, we concur with Carrier's position that the Claim must be dismissed. Claims or grievances must be handled in the usual manner up to and including the chief operating officer of the Carrier designated to handle such disputes pursuant to Section 3, First (i) of the Railway Labor Act as amended and Circular No. 1 of the Board. Since no claim or grievance was progressed to and handled by the final appeal officer nor discussed in conference prior to the submission by Claimant of this dispute to the Board, it is clear that the instant dispute has not been handled in the `usual manner' as required. See First Division Awards 24084, 24039 and Third Division Awards 28896, 28595."

First Division Award No. 24200 (Goldstein)

"It is noted that there is no record on the property that Claimant submitted a roster appeal to the Area Manager designated to receive such appeals at Step One of the grievance procedure in accordance with Article 25.1 of the collective bargaining agreement. Claimant initiated his claim with the General Manger, the Carrier's highest designated officer. In addition, there was no conference held prior to the Submission by the Claimant of this dispute to this Board. Accordingly, we must find that the claim was not handled on the property as provided by the collective bargaining agreement and Section 3, First (i) of the Railway Labor Act which requires the parties to handle the dispute in `the usual manner' up to and including the chief operating officer of the carrier designated to handle such disputes."

Fourth Division Award No. 4931 (Richter)

The record is clear. A conference at the highest level was not held.

"In Third Division Award 14873 the Board held:

"'This Board is a creature of statute; its powers are defined and limited by Statute. It is powerless to enlarge upon any Statutory grant. Section 2, Second of the National Railway Labor Act - in clear, concise language - calls for a conference of the parties on the property prior to submission of a claim to this Board. Section 2, Sixth, of this Act does not in any way alter the mandatory provision of Section 2, Second; it merely gives to either party the right of requesting a conference and imposes a time limit within which to confer after a request has been made.

"No matter how futile a conference may be, a conference must be held on the property prior to submission of a claim to this Board. Otherwise, this Board has no right to consider the claim in question.'

"The fact that conferences were held at the local level does not satisfy the requirement of the Act. In Third Division Award 12499 the Board held:

"'The purpose of the Railway Labor Act, Section 2 Second, was to encourage the confrontation of representatives of both sides as the best way to get agreement. It was intended by the Act and by Board decision that a serious effort to made to settle the claim by a conference before submission to this Board. This serious effort is not satisfied by a conference at the first level, between the Carrier representative who initiated the action which gave rise to the claim, and the local union representative. Of necessity, the serious effort must be at the top if it is to be meaningful.'

"Based on the fact that the Parties failed to comply with the provisions of the Railway Labor Act this Board lacks jurisdiction."

Third Division Award No. 30564 (Wesman)

"There is no evidence on the record before the Board that this Claim was the subject of a conference on the property as required by Section 3 First (i) of the Railway Labor Act. In Third Division Award 27482, this Board held as follows:

"'Based on the Board's review of this case, we concur with Carrier's position that the Claim is procedurally defective and must be dismissed. Board precedent is clear that compliance with the procedural requirements of the Railway Labor Act for consideration of all Claims in conference on the property is a jurisdictional prerequisite for Board consideration of a Claim.

"'In the instant case, since no conference was ever held on the property, the Board is without authority to take jurisdiction of the Claim.' (~ also Third Division Awards 21627, 25761.)'

"This Board finds Claimant's argument that he failed to request a conference on the property because he felt such a conference would be 'futile' to be utterly without merit. The clear provisions of the Railway Labor Act are controlling with respect to procedure. Accordingly, the instant claim is dismissed."

First Division Award No. 24433 (Richter)

"The Carrier has raised several procedural objections to this claim. This Board need only to deal with one of those. The Carrier argues this Board lacks jurisdiction because the Claimants failed to conference this claim with the highest designated officer of the Carrier. Section 2 Second of Railway Labor Act states:

"'All Disputes between a carrier or carriers and its or their employees shall be considered, and if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.'

"The record is void of any evidence of a conference. There are numerous awards that mandate that all claims must be dismissed in conference prior to being listed to the Board.

"First Division Award 24159 held as follows:

"…Additionally, the burden of proof has not been met to demonstrate that the usual handling, required by Section 2, Second and Section 3, First (i) of the Railway Labor Act, as amended was followed in the case at bar. The Claimant, who handled his own case, has failed to prove that the procedural requirements of the Act were met. There is insufficient proof that a conference was held on the property. The submitted intra organizational correspondence does not carry sufficient weight to carry the burden of proof (First Division Awards 22718, 22428, 22101).

"'Accordingly, it is not possible for this Board to reach the merits of the case. Based upon the record, the Claim is procedurally defective and must be dismissed"'

Third Division Award No. 30114 (Mason)

"From an examination of the record in this case, it is abundantly clear that at no time during the on-property handling of the case was a conference held to attempt to resolve this dispute. One of the objectives of the Railway Labor Act is to effectuate a prompt and orderly settlement of disputes. The Act specifically requires in Section 2, Second.

Third Division Award No. 31773

"Without commenting further on the issues of culpability and disciplinary penalty already discussed in Third Division Award 31772, the Board must dismiss this claim for lack of jurisdiction. Claimant's failure to conference this claim on the property prior to advancing the dispute to the Board is fatal to his appeal. Circular No. 1 and 45 USC Section 3, First (I) are unrelenting in their requirements of procedural propriety in appeals to this Board and failure to abide by their strictures leaves the Board without jurisdiction or authority to decide the merits of this claim."

Third Division Award No. 31837

"The Railway Labor Act requires that all disputes must be considered in a conference of the interested parties. See 45 U.S.C. § 152 Second. This is an indispensable requirement that must be satisfied before a claim may be advanced to this Board. See Third Division Awards 31389, 26789 and 28617. As a result, we have no choice but to dismiss the claim."


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Last modified: April 29, 2005