Form 1 NATIONAL RAILROAD ADJUS~'~FP1T BOARD Award No. 7362
SECOND DIVISION Docket Ho. 7253-I
2-SPT-I-' `l7

The Second Division consisted of the regular members and. in addition Referee Lo:.vid P. Twomey when award was rendered.

( Diary E. McDonald

Parties to Dispute:- ( Southern Pacific 'Transportation Company
( and
( System Federation No. 111,

Dispute: Clan-m of Iatr.loyAs:

1. That the Carrier violated the current agreement when, on May 4. 1973, :it failed to notify on call Coach Cleaner, Mary E. McDonald, for service in accordance with her seniority.

?. That the organization violated its statutory duty under Section 2 of the Ra..i;;a.y Labor .Act by arbitrarily faa.lin,,-, to protects E;-tr:ployee 1icDonald' s seniority rights ands by arbitrarily fail iI~ to process AcI° grievance based on her seniority rights.

3. That accordingly, C",artier and/or Organization be ordered to compensate Coach Cleaner :Try E. McDonald for all ta.:?.e 1101"'.LE;'d I:'y' employees ;u_ocr to 'tier on the seniority t:w;,cer, and to f~__t.cacC

.

make her u1.~.~le for all employee benefits adversely affected by the Carrier-organization's actions.

Fialdin;;s:

The Second Division of the Adjustment Board, upon -the whole record and all the evidence, finds that:

Tile carr:i er or carriers and the employe or employer involved in this CJ.i:>1,:711tC are respectively carrier and employe within tile meaning of the
.. , ~
Railway Labor Act as approved June 21, .~3LE-.

This -Division of the Adjustment Board has jurisdiction ever the dispute involved herein.

Parties to said dispute waived right of appearance 0L hearing thereon.

This is a dispute concerning Carrier's alleged failure to recall Clai~a:~rlt. who has a seniority date of '.'arch 18, Z.1,!A as a Coact Cleaner at Carrier's Oa%.~1aId, California, f'"ei,,~ities, from furlough in accordance with her relative standing on the seniority roster on or about '''ay 4, 1973, According to the undisputed fi,Cts, the _'E: s0:1 why Clainnnt was not recalled to service -was because there iG.s a symbol :nisva,k_eI'Il;p:Lu,ced ne~.t to her name on the seniority roster which indicated she was receiving U. di.".ab11a.'i.y anI7:d1t°t/'. it is further uYlr'~:i.1.:'?',1'~'c.'6. ttlat Claimant Z'i?p not in fact receiving a disability annuity and should l:e.rw'cbeon :'eca:Ll::d. on or about :.9ay ii, :7 973. It is also
Foam 1 .Award No. 7362
Pale 2 Docket No. 7253-I
2-SPr-I-'77

uncontested that this symbol. began appearing next to Claimant's name on the 193 seniority rotor and continued thereafter through the 1974 roster. When this error was discovered, the Claimant was immediately recalled for service and she returned to duty on February 24, 1975. The Claim before us is for compensation for the period from May 4, 1973 to February 21+, 1975.

The Carrier contends that the claim filed with the Second Division was

not handled on the property of the Carrier in accordance with the agreed
upon procedures established under Rile 38 of the Agreement and as required
by Sect-on 3, First (i) of the Railway Labor Act; as a,<nended, and Circular
No. 1 of the National IWi1roa.cz Adjustment Board. Rule 38(d) sets forth an
appeal process up to the hi.f..hr._^;_;t appeals officer designated by the Carrier to
hear such appeals, The exhibits of both parties do not sire,-; any correspondence
indicating an appeal beyond Superintendent TV. M. Jones. The Carrier in its
Submission contended that the Claire was never appealed to the highest
appeals officer de: iznated by the Carr i er to hear such appeals. The Employes'
Rebuttal contained no c:.E-:ruial of this contention nor was evidence offered
to show that Rule 3`->(d) had been complied with. miiis Board has repeatedly
held that what 7;' not denied 7i',:sst be taken as fact, 'He are com
the evidence before 'as to f.r~a th~t :;o was ta,'Iren to the highest
appeals officer designated by tide Carrier as required by Rule 38(d). Such
ap';ea1 is nOt only <., pA'OCC:i11.1'ia.L TOrerequ1.s7.te under 'the -Agreement but is
also a jurisd.ic-t.ici.n:a_ prerequisite under Section 3, First (i ) and Circular
No. 1 of the ARAB, Therefore we must dismiss this claim.

For the reference of the: Criova?a., it is pointed out that Rule 32 contemplates the possibility of error in the preparation of seniority lists, and Rule 32 Nets forth a process including tire limits, fox the correction
of errors: Rule 32 states in pertinent .p31"t:

"Seniority rosters will. be revised as of July 1, each year, and _pos~c~_.~d in 'place_a accessible to er:nl_or_rs affected- list of additions, eliminations, a~:'y. correct:.c ~ suii_l be posted as of ianuary a_st etch year. Errors ;~n a?=7 roster or list

_____it? ;~: ( days _fron to' wzi chatt:ntio? i s called vTtin ~.~>Qjw u0~dta cf po-ting ~i:l:~_ be c:orrecuea. The General Chairman and the =L-ocu1 Co:~Lnit'tee ?:~l 1 er:,ch be furnished three copies

r ,~

of such rooters and lists, pertaining to their craft.

(Emphasis added)

Clearly i=bis mile, tarough ti?e posting process, places responsibility on
the individual employee to cUck the roster to determine if an error has
been made. In the instant case the error teas made on the 1963 roster and
carried forward for over 1_0 years without protest or complaint from the
Claimant. Rule 3.? provides u'oz· the posting of seniority rosters and
contemplates that affected err;~loyes will Find any- possible errors and call
attention to any sueh errors. ~ No exception to this _;process is made for
employees on la- off. Iio practice is either alleged ox proven that any
method other than the po:;tinf;: method 1?as been cased in setting forth the
seniority roster each yee.r. The Agreement then provides the process for
Form 1 Award No. 7362
Page 3 Docket No. 7253-I

2-SP-r-i-' 77

finding and correcting errors. It is well settled that every employe is charged with. knowledge of the contents of the Agreement (See Third Division Award a?0086) . Tiaere is no contractual basis then, ,,Tlaere the Claimant has failed to check the dull posted seniority rosters, to sustain thc claim i n the instant case. Further, this Bc_,~,rd has no jurisdiction oven a dispute between an employee anti his or her Grgan:i.s anon.

A VT A R D

Claim dismissed.

NATJ0.T7 R4ILROAD ADJtTSTKET7,T BOARD

By Order of Second Division

Attest: Executive .Secretary
National Railroad Adjus·tn_ent Board

_ P_,, _. . _ .,.._ -~ ,.. _ ,._ _ _

_ _m _

~!V.~,C.]71c;.Y'~__ 151`"%.SC'rl - i':.~'::::uf;~.~ ~·r*Li.l, 'V~: !u:ilSt."..Yl·t

Datec'~at Chuca;~;o, Illinois, this 30th day of Septez_:bor, 1977.