Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 758
SECOND DIVISION Docket No.
7358
2-cMStP&P-Ew-t78
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
76,
Railway Employer'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employer:
1. That Trolley Linemen Helpers R. D. Hitchcock, N. T. Anderson, D. R.
Johnson, G. R. Bleekex and R. D. Scofield, all furloughed January
17, 1975, be returned to their former positions.
2. That they be compensated for each day they were denied employment
from June
30,
1975 while others were assigned to perform their
work, until the violation is corrected.
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 employer involved in this
dispute axe 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.
Patties to said dispute waived right of appearance at hearing thereon.
This is a claim on behalf of five Trolley Lineman Helpers, furloughed
on January 17, 1975, fox return "to their former positions", with pay from
June 30, 1975. On the latter date, the Carrier promoted five otter employes..
all with long service with the Carrier, to the position of Trolley Lineman
Apprentices, while the five Claimants remained on furlough.
The Organization claims violation of Paragraph (a) of Agreement
Covering Trolley Linemen Apprentices, dated October 15, 1951, which reads
as follows:
"Apprentice linemen will be selected from the rank of
linemen helpers; ability aced. seniority will govern, and
selections will be made in conjunction with the craft's
local authorized representatives or General Chairman. If
within six
(6)
months an apprentice lineman shows no
aptitude to learn the trade, he will not be retained as an
apprentice lineman."
Form 1 Award No. 7+58
Page 2 Docket No. 7358
2-CMStP&P-EW-'78
The claim can most easily be considered in two parts. The first has
to do with alleged violation of that portion of Paragraph (a) of the
Agreement Concerning Trolley Linemen Apprentices which states:
"Apprentice Linemen will be selected from the rank of
linemen helpers; ability and seniority will govern ..."
In support of this provision, the Carrier refers to its letter to
the Organization dated November 26, 1951, which states in part:
"During discussion of this matter (the Agreement Concerning
Trolley Lineman Apprentices) it was understood that the
intent of the Agreement would be that if there is a
lineman helper who appears to have sufficient fitness
and ability to acquire the experience necessary to
properly perform the work of a journeyman lineman,
such employe should be advanced to the position of
apprentice lineman in preference to anyone else and if
there are no linemen helpers with sufficient fitness
and ability to be so advance, an opportunity should then
be given to groundmen for advancement to position of
lineman apprentice."
It was the Carrier's judgment that the five furloughed Trolley Lineman
Helpers, each of whom had approximately six months of active service with
the Carrier, did not meet the requirements as outlined above for advancement;
to apprentice status. It therefore selected five other employes whom the
Carrier felt did meet the requirements.
The Organization argues that the initial assignments of Apprentices
could readily be performed by the furloughed Helpers, and that the promotions
were made to accomodate the five employees who were assigned. Neither of
these considerations, even if true, is to the point. No showing was made
that the Carrier violated the first portion
of
Paragraph (a) of the quoted
Agreement in its actions. On the contrary, it exercised the prerogative
which is reserved to itself in the selection of Apprentices.
The second portion of the Claim has to do with the Carrier's alleged
violation of Paragraph (a) which states:
"... and selections will be made in conjunction with the
craft's local authorized representative or General
Chairman...
The Carrier argues that this portion of the Paragraph (a) was not
cited or argued by the organization on the property, and, therefore, it
may not be raised in support of its case before the Board.
Form 1
Page
3
Award No . 745$
Docket No. 7358
2-CMStP&P-EW-`78
The Board does not agree. In its initial and timely claim on August
7, 1975, as well as its subsequent letters exchanged on the property, the
Organization quoted Paragraph (a) in its entirety. The Carrier cannot be
said to be unaware of the contents of the full paragraph, even if emphasis
was placed by the organization on the more substantive portion involved in
the initial part of the first sentence.
Without contradiction by the Carrier, it is apparent that no prior
consultation was held with the "craft's local authorized representative
or General Chairman". But for this procedural violation, what is the
appropriate remedy? On this basis alone, the Board cannot direct that the
five furloughed Helpers take the place of the five employes selected as
Apprentices. To do so would improperly defeat the right of the Carrier to
make selective judgment in the designation of Apprentices. Absent such a
remedy, it cannot be found that the Claimants suffered loss of pay or
positions.
There is a final consideration: the Claimants seek to "be returned
to their former positions", which presumably means that of Helpers. There
is no showing that anyone displaced or replaced the Claimants as Helpers.
Thus they have no claim to such non-existent positions.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By ~ - - "
Ro emarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 7th day of February, 1978.