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ture on November 25, 1958. The carrier would like to point out there is no job classification in the firemen and oilers' agreement and it is personal to the employes named in Rule No. 1.
The situation wherein Chief Weighman Hunt was assisted by Finn continued to exist for a period of approximately three and one-half (342) years, until April 20, 1959. Physical examination of Finn by the carrier's Medical Examiner early in April, 1959, indicated Finn would never be able to again perform the duties of chief weighman.
The grain company, through an agreement with the operating engineers, arranged for another position within Finn's capabilities rather than be forced to withhold him from service. A position of truck dump weighman had previously been established in July 1954, and had been held by a member of the operating engineers. See affidavit of Mr. Charles H. Ross, fifth paragraph. Finn was assigned to the truck dump weighman's position on April 20, 1959, at a reduced rate.
Finn died on March 10, 1960, after working the truck dump weighman's position for approximately eleven months. Finn, from the time of his illness until his death, never registered a complaint in his own behalf.
POSITION OF CARRIER:
Before introducing any argument and evidence in support of the carrier's position with respect to the merits of the dispute herein under discussion, the carrier wishes to point out that this claim has not been handled with the carrier's representatives as contemplated by the Railway Labor Act and by Rule No. 21 of the current agreement between the carrier and the authorized representatives of the employes and the carrier, therfore, objects to the jurisdiction of the National Railroad Adjustment Board, Second Division, in hearing and deciding this case.
Section 3, First, (i) of the Railway Labor Act states as follows:
"The disputes between an employe or group of employes and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the dispute." (Emphasis ours.)
Rule No. 21—CLAIMS OR GRIEVANCES, paragraph (a) of the current agreement reads as follows:
“All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the Carrier authorized to receive same, within 60 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 60 days from the date same is filed, notify whoever filed the claim or grievance (the employe or his representative) in writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims. or grievances." (Emphasis ours.)
The carrier assumes Mr. Michael Fox is basing his ex parte submission on a claim that was initiated on March 22, 1960. If there was a violation of Rule No. 14(a) and Rule No. 1 of the firemen and oilers' agreement of 1958, in that the position of chief weighman should have been advertised, the claim should have been filed within sixty (60) days of the time Finn's rate was reduced to that of truck dump weighman, to comply with Rule No. 21 of the current agreement. This would also have complied with "handled in the usual manner,” under Section 3 of the Railway Labor Act.
The above-quoted rule and section clearly outlines the manner and fixes the allowable time limit within which claim must be submitted.
The carrier points out that the claim initiated on March 22, 1960, was declined by Mr. H. E. Sutton, General Foreman-Piers, in letter to Mr. James C. Cooper, Local Chairman, I. B. of F. & 0., on May 20, 1960, stating “claim is not supported by any of the existing rules."
In my letter of October 4, 1960, to Mr. A. C. Ludwick, General Chairman, I. B. of F. & O., declining this claim, it was stated:
“Your claim that the vacancy of chief weighman, vacated by Finn, should be advertised under provisions of the current agreement, is barred by Rule 21(a) in that grievances must be presented within 60 days from date of occurrence.” (Exhibit “I”)
Without prejudice to its position advanced herein that this claim is improperly before the Board for consideration and should be dismissed, it is the carrier's further position that the employe's claim is wholly without support under the agreement rules between the parties hereto and should be denied. in its entirety. Without waiving such objections, it, nevertheless, submits. the following on the merits of this claim.
It is the position of the carrier that the firemen and oilers are requesting that a position, that is properly certified and under agreement with another Union, be advertised to the firemen and oilers, thus involving a jurisdictional or third party dispute. A sustaining award would infringe on and nullify the rights of another party which has not been given due notice.
The carrier points out that the operating engineers were certified in November, 1953, which was prior to the firemen and oilers' certification in June 1954. It is the carrier's position that the grain company, under the terms of the lease, had the right to fill the chief weighman's position in October 1955, with a member of the operating engineers' group.
The carrier further points out that the initial agreement between the grain company and operating engineers was signed January 14, 1954, prior to the agreement signed between the firemen and oilers and the carrier on November 25, 1958.
In an attempt to further clarify the history that is involved in this dispute, the carrier wishes to point out the following:
At the time of the signing of the lease, the carrier had thirty-six (36) employes at the Grain Elevators. Twenty-four (24) of these employes were covered by an agreement with the clerks' organization. Twelve of these employes were not covered by any labor agreement. The lease provided that the carrier would have the right to continue to employ, pay and furnish to the grain company the twelve (12) employes who were not covered by any labor agreement.
The carrier was willing, and did carry them on the carrier's payroll at an additional expense so that they could retain their pass privileges and rights under the Railway Retirement Act, and other rights incidental to railway employment.
Under the lease, the grain company has the right to replace any of these employes upon termination of their services by retirement or otherwise, and had previously done so in the case of William F. Soule, May 7, 1955 and Robert L. Bailey, April 13, 1956 and in the disputed case of Walter M. Finn.
The operating engineers and the grain company's management contend that the position of chief weighman is covered by agreement between operating engineers and the grain company, and that the firemen and oilers' agreement with the carrier, signed November 25, 1958, is invalid in so far as covering the chief weighman's position.
When Walter M. Finn became ill in October, 1955, there were no employes in the miscellaneous group qualified to assume the chief weighman's duties. Due to the high volume of business, the grain company was forced to fill this position immediately and selected Mr. W. R. Hunt, a member of the operating engineers.
Since October, 1955, W. R. Hunt has been chief weighman at the grain elevators. The grain company, through generosity beyond that which they were required to give, also continued to pay Finn his former rate until April 20, 1959, a period of three and one-half years.
For a period of approximately eleven months, between April 20, 1959, and March 10, 1960, Finn held the position of truck dump weighman, which had been arranged for him.
Grievance was filed by Shop Committee Chairman J. Calvin Cooper, of the firemen and oilers, in letter dated March 22, 1960, to General ForemanPiers H. E. Sutton. Claim was declined May 20, 1960, by Mr. Sutton and was eventually progressed to me, the highest officer of the carrier designated for that purpose, by General Chairman A. C. Ludwick. Claim was declined by me, in my letter to General Chairman A. C. Ludwick, dated October 4, 1960.
(1) The carrier contends that Rule No. 14(a) and Rule No. 1 of the firemen and oilers' agreement of 1958 were not violated March 10, 1960, as no vacancy in the chief weighman's position was created by Finn's death, nor did any other vacancy occur requiring advertisement under the rules of the current agreement.
Even if W. M. Finn was considered holding the position of chief weighman subsequent to October 31, 1955, as the firemen and oilers contend, it was required under Rule No. 21–Grievances or Claims—of the November 25, 1958, agreement, that the claim be filed within sixty (60) days of April 20, 1959, which was the date Finn was transferred to the position of truck dump weighman at a lesser rate. The carrier points out that this is not the case, assuming this dispute is based on an initial claim dated March 22, 1960, approximately eleven months after Finn's pay was reduced.
There was a prior protest of Finn's demotion of April 20, 1959, dated December 12, 1959, by Shop Committee Chairman Cooper for the firemen and oilers, which was declined by the carrier and was allowed by the firemen and oilers to die in progression.
(2) The carrier contends that the firemen and oilers are requesting a position be advertised to them that is covered by agreement of another Union, and that this dispute is not properly before the Board and should be dismissed. In this ex parte submission the carrier has shown that the position of chief weighman at the grain company was filled in the only manner possible on October 31, 1955, by appointment of W. R. Hunt.
The carrier has also shown that during the time between October 31, 1955, and April 20, 1959, a period of three and one-half years, W. R. Hunt was in fact and responsibility chief weighman, although during that time W. M. Finn's wages as chief weighman were continued through the generosity of the grain company. The carrier has further shown that a position was arranged for Finn on April 20, 1959, within his physical capabilities, through an agreement between the grain company and the operating engineers, in order to provide employment for him.
Under the circumstances, the contention by the firemen and oilers that the position of chief weighman should be advertised now to employes named in Rule No. 1 is not supported by the applicable rules of the current agreement.
This claim is without merit and the carrier respectfully requests that it be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
In 1952 the Carrier leased to the Continental Grain Company the grain elevators at Norfolk, Virginia, formerly operated by it, with the stipulation that the Carrier would continue to employ, pay and furnish to the Grain Company its twelve miscellaneous employes there, who were not covered by any union agreement, the Grain Company to replace them as their service was terminated.
On November 19, 1953, the International Union of Operating Engineers was certified to represent as of January 14, 1954, all employes at the grain elevators except the above employes still on the Carrier's payroll.
On June 8, 1954, the Firemen & Oilers Organization was certified to represent the remaining seven of the twelve miscellaneous grain elevator employes mentioned in the fifth . paragraph, supra, who were still on the Carrier's payroll, including Walter M. Finn. The coverage was not of named positions as such, but of the seven employes in their respective places.
The present Firemen & Oilers Agreement, signed and effective November 25, 1958, is of the same type. It expressly relates (Rule No. 1) only to Finn and the four other grain elevator employes named therein still on Carrier's payroll; it provided that the Carrier was not obligated to replace any of them, and that upon the elimination of all five the Agreement would terminate. It also provided (Rule 14(a)) as follows:
"Vacancies formerly held by employes named in Rule No. 1 carrying a higher rate will be bulletined to other employes named in Rule No. 1.”
A similar provision relates to temporary vacancies known to be for over thirty days.
On or about October 31, 1955, Finn, then Chief Weighman, suffered a heart attack and on returning to work only about two months later was not considered able to perform some physical work of the position. During his absence W. R. Hunt, an employe under the Operating Engineers' Agreement, had been performing the duties of the position, and on Finn's return they worked together, both being paid at the Chief Weighman's rate. That was the situation when the present 1958 Agreement, with the above Rule No. 1, was adopted, and it continued until April, 1959, when, after a new medical examination, Finn was reduced to Truck Dump Weighman, a lower rated position, which he held until his death on March 10, 1960. A protest of his demotion was made, denied and allowed to lapse.
Hunt held what amounted to a second Chief Weighman's position, and did not supplant Finn, until the latter's demotion in April, 1959, when Hunt became the only Chief Weighman. This claim was not filed until nearly a year later, and after Finn's death. The Carrier contends, therefore, that it came too late under Rule 21.
But Rule 21(d) provides that "a claim may be filed at any time for an alleged continuing violation." All that is here claimed is that “the position of Chief Weighman
should be advertised to the employes as named in Rule No. 1,” and “that accordingly the Carrier be ordered to advertise the position of Chief Weighman under the provisions of Rule 14(a).”
Until the Carrier does so there is a continuing violation of the rule, and this claim comes in time. Third party notice was given to the Operating Engineers who represent Hunt.
The delay in asserting this claim under Rule 14(a) of the Firemen's and Oilers' Agreement did not adversely affect either Hunt or the Carrier, and