Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
Award No.
7503
SECOND
DIVISION Docket No.
7376
2-ICG-SM-'78
The Second Division consisted of the regular members and in
addition Referee Herbert
L.
Marx, Jr. when award was rendered.
( Sheet Metal Workers' International
( Association
Parties to Dispute:
(
( Illinois Central Gulf Railroad
Dispute: Claim of Employes:
1. That the carrier on November
7, 1975,
improperly furloughed water
service repairman, J. R. Sholar, an employee of the Illinois Central
Gulf Railroad, headquartered at Fulton, Kentucky, in a manner
contrary to the terns of the May
18, 1972, I.C.G. & G.M.&0.
Merger Agreement and the Washington Job Protection Agreement.
2.
That the carrier compensate the claimant by having the continuous
time claim submitted in behalf of claimant, J. R. Sholar.
3.
That accordingly, the carrier be ordered to reinstate water service
repairman, J. R. Sholar, to the service with all seniority,
vacation, health and welfare and life insurance rights unimpaired
and compensate the claimant at pro-rate for all time lost
because of the aforesaid violation.
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.
Claimant received a letter from a Carrier representative stating:
"This is to inform you that effective the end of the work
day November
7, 1975,
your position of Water Service
Repairman, headquartered at Fulton, Kentucky, is terminated
account of force reduction."
At the outset the Board notes that this letter refers to termination
of a "position" -- not the termination of an employe. The effect of the
Form 1 Award. No.
7503
Page 2 Docket No.
7376
2-IC G-SM-'78
was to place the Claimant in furloughed status. There is no dispute that
his seniority alone would not have entitled him to another position.
From the above occurrence, there transpired the following:
(a) Extensive correspondence between the General Chairman and various
Carrier personnel concerning the appropriateness of the position termination
notice coming from a Supervisor rather than a Division Engineer. This
included a letter to the Supervisor, dated January
2, 1976,
concluding
"...
I feel that this abolishment was not processed through the proper
channels, therefore Mr. Sholar was unjustly dismissed."
(b) A letter to the Carrier's Director of Labor Relations dated
January 28,
1976,
which -- after discussion of other matters -- concluded,
"I feel that Mr. Sholar should be reinstated and compensated for all time
lost and all benefits due him." On March
19, 1976,
the Director of Labor
Relations replied, stating the claim was improper "since it was not filed
with the division engineer within
60
days of the abolishment". (Rule
36-A).
(c) A continuing claim for an alleged violation of the May 18,
1972
Merger Agreement and the Washington Job Protection Agreement, dated.
February
17, 1976,
to the Division Engineer authorized to receive initial
claims. This was followed by another letter from the General Chairman on
May
16, 1976,
asserting no declination of the claim of February
17, 1976,
within the required
60
days, and further asserting that the claim should
be allowed due to the time limit expiration.
The Board finds that this claim must be dismissed on any or all of
the following bases:
1. The Organization claims a violation of the May
18, 1972
Merger
Agreement. The Merger Agreement reads in Section
8,
in part, as follows:
"In the event any dispute or controversy arises between the
. New Company and any labor organization signatory to this
. Agreement with respect to the interpretation or application
of any provision of this Agreement or of the Washington Job
Protection Agreement or of any implementing agreement entered
into between the New Company and individual labor organizations
which are parties hereto pertaining to the said transactions,
or a dispute over the failure to make, or the terms to be
included within, an implementing agreement, which cannot be
settled by the New Company and the labor organization or
organizations involved within thirty (30) days after the dispute
arises, such dispute may be referred by either party to an
arbitration committee for consideration and determination."
Form 1
Page
3
Award No.
7503
Docket No.
7376
2-IC G-SM-'78
This provision obviously calls for exclusive resolution of "any
dispute ... with respect to the interpretation or application of any
provision of this Agreement" through means other than referral to this
Board. Thus, the matter is improperly before the Board.
2.
Even assuming that the Board has jurisdiction over the matter,
the claim is seriously deficient as to time limits on filing. Neither the
appeal to the Division Engineer nor the earlier appeal to the Director of
Labor Relations was within-60 days of the position termination, as required
by Rule 36-A of the "Section B" agreement between the parties.
3.
Without exploring them in detail, it appears there are other
omissions beside the time requirement in the Organization's processing of
the claim on the property.
With this, the Board need not inquire as to the merits of the position
abolishment.
A W A R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
i n
ByM
o emarie Brasch - Adinistrative Assistant
Dated t Chicago, Illinois, this 14th day of April,
1978.