Form 1
Parties to Dispute:
NATIONAL -RAILROAD AD-JUST°E!i'I' BOARD Award No.
7383
SECOND DIVISIC~1 Docket No.
7289
2-LV-CM-'
77
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
System Federation -10. 100, Railway Employes'
Department, A.F. of L.
(Carmen)
Lehigh Valley Railroad Company
Dispute: Claim of Employes:
That Cayman Sterling McFarland was unjustly dealt with when he was
withheld from employment at Allentown, Pa. after July
2, 1974.
That accordingly Cayman Sterling McFarland be put in the proper
seniority order on the Lehigh Valley Railroad Common Roster, Allentown,
Pa.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant, a former employe of the Central Railroad Company of New
Jersey, was called for possible employment with the Lehigh Valley Railroad
Company, successor of the CNJ. He was given a physical examination on
June
14, 1974,
and was notified on July
2, 1974
that he did not pass the
examination. At a later date, October
14, 1974,
he was permitted to start
work and his seniority commenced at this point.
Claimant has no grounds for stating he "was unjustly dealt with" from
July 2, 1974,
on. Tot being an employe of the Carrier, he has no protection
under the collective bargaining agreement between the Carrier and the
Organization. His employment relationship with the Lehigh Valley Railroad
did not commence until October
14, 1974.
No claim is made that the Carrier
was required to employ anyone failing to meet its physical requirements.
Form 1
Page
2
Award No.
7383
Docket No.
7289
2-LV-CM-'77
The further argument is made that, upon employment, claimant was entitled
to a higher seniority standing because of a Memorandum of Agreement dated
November 1,
1972,
between the Carrier and the Organization. The Memorandum
of Agreement reads in part:
"It is agreed that the former Central Railroad Company of
New Jersey Carmen employed by the Lehigh Valley Railroad
Company -will be placed on the Common Seniority Roster of
the Carmen Craft as of April 1,
1972,
on the basis of their
chronological standing on the Zone 2, Central Railroad
Company of New Jersey Carmen's Seniority Roster."
Effectuation of this agreement shows unquestionably that (a) it applied
only to those CNJ employes employed by the Lehigh Valley on April 1,
1972
(the present claimant not being included therein and making no claim that
he should have been), and (b) it did not grant any seniority for service
time prior to actual employment by the Lehigh Valley. It simply fixed an
order of seniority for those simultaneously employed by the Lehigh Valley.
As a remedy, claimant would have the Carrier credit him for service not
performed. The November 1,
1972,
Memorandum of Agreement neither covers him,
nor, in any case, provides for seniority credit for time prior to actual
employment.
A W A R D
Claim No. 1 is dismissed.
Claim No. 2 is denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
~,~semarie Brasch - Administrative Assistant
Dated (at Chicago, Illinois, this 1st day of November,
1977.