Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7730
SECOND DIVISION Docket No.
7615
2-AT&SF-EW-'78
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
97,
Railway Employes'
( Department, A. F, of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
( Atchison, Topeka and Santa Fe Railway Company
Dispute: Claim of Employes:
1. That the Carrier eared and violated the contractual rights of
Mr. C. C. Bishop when they removed his name from the Electricians'
seniority roster at Bakersfield, California, and thereby denied
him the right to recall.
2. That, therefore, Mr. Bishop's name be restored to the Electricians"
seniority roster at Bakersfield, California, and
3.
That he b e compensated for all lost time and/or other benefits
he would have received had not the Carrier erred in removing his
name from the seniority roster.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier ox carriers and the employe ox employes 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.
Parties to said dispute waived right of appearance at hearing thereon.
Carrier posted Bulletin No.
52
on September
15, 1976,
which stated,
". . . the following employees (including Claimant C . C . Bishop) will b e
cut off at the completion of their shift which commences September
22,
1876."
Claimant's regular assigned shift hours are 11 p.m. to
7
a.m. As
indicated by the bulletin, he worked his final shift commencing 11 p.m.,
September 22. At 7:05 a.m., September 23, he furnished the Carrier with
his current address on the form provided by the Carrier.
Foam 1 Award No.
7730
Page 2 Docket No.
7615
2-AT&SF-EW-'78
Carrier rejected the address notice as untimely and advised the Local
Chairman that Claimant had forfeited his seniority and the right to recall
to service.
The Organization claims the notice given by the Claimant was timely
and that there was no forfeiture of seniority by the Claimant.
In dispute is the meaning of Rule 24(c), which reads as follows:
"(c) Employes laid off in force reduction must,
within seven (7) days of the date of notice of
reduction, file their addresses with the officer
in charge, in triplicate, on form to be provided
for the purpose. The officer will sign and return
one copy to the employe and deliver one to the
Local Chairman of the Craft. Employe so affected
must also advise the officer in charge of any
subsequent changes in his address and, in addition,
notify him in writing of his current address
between December 1 and December 31 of each
calendar year, regardless of whether changed
since lat notice was filed. Employes failing to
comply with either or both of these reTai renents
for filing addresses and subsequent notices of
change will result in forfeiture of seniority and
right to recall to service.
This Section (c) shall not apply in the case of an
employe who is force reduced in one classification
and continues employment in another classification
under the provisions of the Shop Crafts' or Firemen
and Oilers' Agreements at the same location."
Both the Carrier and the organization accept the interpretation that
seven successive days are intended by the Rule 24 (c), The reasoning is
precisely stated in Second Division Award No.
35+5
(Bailer):
"The general rule (in law) is that the time within
which an act is to be done is to be computed by
excluding the first day and including the last,
that is the day on which the act is to be done."
In this case, it is further understood that the "act to be done"
(submitting an address) can be accomplished on any of the seven days in
question. Following this interpretation, with the Bulletin posted on
September 15, the employe was at liberty to present his address on arty day
between September 16 and Septe&ber 22, inclusive.
Foam 1
Page
3
Award No.7730
Docket No. 7615
2-AT&SF-EW-'78
The sole difference between the parties is the definition of
time that a "day" begins. Absent any restrictive word, the Carrier takes
it as the seven calendar days following September
15 --
which would end at
midnight, September 22. The Organization takes it as the seven days
(including zest days, etc.) commencing with the start of the employe's
that is, the 21+ hours commencing at 11 p.m., September 16. This would
extend the seven days until 11 p.m., September 23, and the Claimant's
giving of notice at
7:05
a.m., September 23 would thus be timely.
Careful examination reveals two flaws in the Organization's reasoning.
First, it relates the time period to the employe's work schedule. As held
in numerous previous awards, this may well have validity in such matters as
overtime assignments, which may indeed be calculated to include availability,
etc.., in the 24-hour period commencing with the start of an employe's shift.
But this would ,require Rule 21+ (c) to be read as if it said that employes
shall have seven days commencing with their shift on the day following
notification of lay off; this the rule does not say. Rather, the seven
days specifically refers to "the date of notice of reduction" and as such
has nothing to do with the work schedules of affected employes.
Second, even if the Organization's theory of days beginning with the
shift of the employe is accepted, the argument fails. The Claimant's first
shift following the posting of the bulletin began at 11 p.m., September 15.
On this basis, the seven-day period would end at L7.. p.m., September 22,
There remains the consideration that the address notice was submitted
by the Claimant only seven hours and five minutes beyond the limit, thus
causing no inconvenience to the Carrier in its use fox f~zture recall to work,.
The Board, however, must read and interpret the Agreement as written and may
not stretch ox bend the rules. While this is true in all cases, it takes
on special significance here, since the retention or loss of seniority rights
of one employe inevitably affects the relative seniority rights of junior
employes.
the precise
shift,
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
os arie Branch - Administrative Assistant
Dated a Chicago, Illinois, this 1st day of November,
1978.