Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6979
SECOND DIVISION Docket No. 6883
2-IC G-CM-'76
The Second Division consisted of the regular members and in
addition Referee Walter C. Wallace when award was rendered.
( System Federation No. 99, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
(Illinois Central Gulf Railroad Company
Dispute: Claim of Employes:
1. C arman Helper J. B. Mitchell's name was removed from the seniority
roster on May 22, 1969, thereby depriving him of his right to be
restored to se ce on June
3,
1974, in the restoration of forces,
in violation of 28 of the current Agreement.
2. That accordingly the Illinois Central Gulf Railroad be ordered to
compensate Carman Helper J. B. Mitchell for eight (8) hours at
Carman's rate of pay beginning June 3, 1974, and continuing until
J. B. Mitchell is restored to service, any and all overtime he would
have received, plus interest at the existing rate, his vacation
rights; and all other benefits he is being deprived of while being
held out of service, including his seniority rights.
Findings:
The Second Division of the Adjustment Board, upon the whole reccr d 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 waived right of appearance at hearing thereon.
The claim herein arose because of claimant not being restored to service
in the restoration of forces on June
3,
1974.
The Carrier contends that claimant's name was removed from the seniority
roster in 1969; that there was no protest concerning the removal of his name
from the seniority roster, and that, therefore, he had no recall rights when
forces were increased on June 3, 1974. The Carrier also contends that the
claim before the Board is barred by the applicable time limit rules.
Form 1 Award No.
6979
Page
2
Docket No.
6883
2-IC G-CM-'76
So far as the time limit issue is concerned, we must reject the
contention of the Carrier. The action complained of was failure to recall
claimant to the service in the restoration of forces on June
3, 1974.
The
claim was initiated within sixty days from that date. It has been held that
unless a statute of limitations or an agreement of that character specifically
provides otherwise, the period of limitation begins to run at the time when
a complete cause or right of action accrues or arises. See Fourth Division
Award No.
943,
and Third Division Award No.
14083.
We find, therefore, that
the claim before the Board is not barred.
The reason that the Carrier gives for not recalling claimant in the
restoration of forces in June,
1974,
was the removal of claimant's name from
the seniority roster in
1969.
We have reviewed the record in this respect.
It shows that claimant was absent from work because of alleged illness during
most of the month of April
1969.
He was instructed at that time to secure a
doctor's release prior to returning to work. The record does not show that
such a release was flarnished by the claimant and onMay
22, 1969,
his name
was removed from the seniority roster. The record does not show that
claimant was afforded an investigation under Rule
39,
or that he was
notified of the removal of his name from the seniority roster.
It has often been held that seniority rights are valuable rights and
cannot be taken away unless the schedule rules and the evidence warrant
such action beyond question. See First Division Awards Nos.
11282, 19399, and
Third Division Award No.
11255.
Adherence to this doctrine forces us to the
conclusion that claimant's name was improperly removed from the seniority
roster in May,
1969,
in the manner that it was. To say the least, claimant
was entitled to notice of such action.
As claimant's absence in April,
1969,
was due to alleged illness, and
there is nothing in the record to show that his condition has changed or
that he is now, or was in June,
1974,
physically able to perform the work
of Carman helper, we cannot sustain Part
2
of the claim for compensation
beginning June
3, 1974.
We will award that claimant be restored to the
seniority that he held prior to May
22, 1969,
with the right to return to
service in line with that seniority provided that he can pass satisfactory
physical examination that may be required by the Carrier. In all other
respects the claim will be denied.
A W A R D
Claim sustained to the extent indicated in the Findings.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
6979
Docket No.
6883
2-ICG-CM-'
76
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By J
o emarie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 9th day of January,
1976.