Form 1
Parties to Dispute:
Dispute: Claim of Fmbloyes:
NATIONAL RAILROAD ADJUSTT~1ETIT BOARD Award No.
7953
SECOND DIVISION Docket No.
7661
2-N&W-CM-' 79
The Second Division consisted of the regular members and in
addition Referee Arthur T. Van Wait when award was rendered.
System Federation No.
1_6,
Railway Employes'
Department, A. F. of L. - C. I. 0.
(Carmen)
Norfolk
and Western Railway Company
1. That the Norfolk and Western Railway Company violated the controlling
Agreement by failing to recall emnloye e from furloughed status
in seniority order, thus allowing junior man Dennis Moore to work:
in lieu of senior man S. A. Hewis at Cleveland, Ohio.
That the Norfolk and Western Railway Company violated Article
V(a), TTational Agreement dated August 21,
195+,
and Sections
2
and
3(i)
of the Railway Labor Act by engaging in procedural defect
in the processing of the claim on the property.
3.
That the Norfolk, and Western Railway Company be ordered to
compensate S. A. Hew-ls for all time lost as follows:
2.
DATE
2-13-76
2-14-76
2-16-76
2-17-76
2-18-76
2-19-76
2-20-76
2-23-rf 6
2-21+-76
2-25-76
2-26-76
2-27-76
3_1_76
3-2_76
3-3-76
3-4_76
3_5-76
3_8_76
3-9-76
Eight Hours at Straight Time Rate
Five Hours at Time and One-Half Rate
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
Eight Hours
at
at
at
at
at
at
at
at
at
at
at
at
at
at
at
at
at
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Tizne Rate
Straight T Line Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Time Rate
Straight Tune Rate
Form 1 Award No.
7953
Page 2 Docket No.
7661
2-N&W-CM-'79
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 ox 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 waived right of appearance at hearing thereon.
Prior to February
13, 1876,
there were two (2) Carmen in a furlough status,,
Claimant S, A. Hewis and D. Moore. They had been furloughed from Carrier's
terminal facility at Campbell Road in Cleveland, Ohio.
Claimant Hewi.s vas notified by telephone on February
13, 1976,
by the
General Foreman that he eras being recalled. This method of recall was the
alleged customary manner used to recall a i'tzxloughee to service at this
location. Claimant, at that time, had allegedly advised the General Forem^.n
that he did not desire to return to work in the Car Department as he believed
that lie was going to be employed in the Carrier's Freight Claim Department.
Claimant allegedly stated that he v-ould come to the office and tender his
resignation. When Claimant had not reported to the office by February 19,
1976,
he was again contacted. Claimant again asserted, at that tine, that he
dad not desire to return to work as a Carmen Helper. However, he stated that
he would not sign a resignation until he was actually employed in the Freight
Claim Department.
The General Foreman acted in reliance upon the Claimant's two statements
and contacted the next; Senior furloughed man, D. Moore, on February
lg, 15176.
He advised Mr. P~bare to return to servi ce. Mr. Moore reported for work oz::
February 20,
1976,
Claimant called the General Foreman on March 1,
1876,
and informed the
General Foreman that he had not been employed in the Freight Claim Department,
as anticipated, and that he desired to return to work in the Car Department.
Accordingly, Mr. Moore eras given notice by a bulletin, on March
3, 1g76,
that
he would be furloughed effective blanch 10,
1916.
Claimant commenced service
on March 10,
1976.
He filed claim for five
(5)
hours at the overtime rate for February 1T+,
1976,
and eight
~8)
hours at the straight brie rate for February
15 - 27,
March
l - 5, lg7 . These
claims ware filed on March
8, 1976.
Further,
on March loth, Claimant also filed claim for eight
(8)
hours at the straight
time rate for March
8
and
g, 1g76,
i
' Form 1 Award No.
7953
page
3
Docket No. 7661
2-N&W-CM-' 79
The Car Foreman denied such claims on March
5
and 7, 1976, His decision
was rejected in the claim appealed to the General Car Foreman. The record
reflects that attached to the rejection was a statement signed by D. Moore
indicating that he had begun work on February
13
and worked through March
Via,
1976. These clani;is were denied by the General Foreman on August
1_7,
1976,
The General Foreman, in addition, also advised that Mr. Moore had been given
a, formal investigation, regarding the signed statement given the Local
Chairman, and that Mr. Moore testified at said investigation that he did not
work on February 13 - 19, 1976.
The Vocal Chain-ran rejected. the decision of the General Forezta,n on
October
8,
1976. He alleged a violatiotl of Article V (a) of the August 2:L,
195I+ Agreement and Sections 2 and 3 (i) of the Railway Labor Act, because
the General Foreman, rather than the General Car Foreman, to whom the appeal
was addressed, had denied the claim.
Rule 7(b) of the controlling schedule Agreement reads:
"7
(b) An employee resigning from the service,..or failing
to return to.-~rork upon expiration of leave of absence or_
within a reasonable time after being notified if on
furlough gill lose all seniority rights... When a written
notice to return to work is sent to an employee, a copy
of such. notice will be given to the local committee or to
the President of System Federation No. 23," (Underscoring
supplied)
Rule
8(b)
in pertinent part, states:
"8
(b) ... An employee who has been furloughed shall return
to work when called by the Company, unless at the time
when called he is granted leave of absence.,."
Article V of the August 21, 195-, National Agreement, in pertinent
part, provides:
"V, All claims and grievances must be presented in writing
by or on behalf of the employee involved, to the officer of
the Carrier authorized to receive same, within sixty (60)
days from the date of the occurance on which the Claim or
grievance is based. Should any such claim or grievance
be disallowed the Carrier shall notify whoever filed the
claim or grievance ... in writing of the reasons for such
disallowance. If not so notified, the Claim or grievance
shall be allowed as presented_."
Form l ' Award No.
7953
Page
4
Docket No.
7661
2-N&ZJ-CM-'
79
The Employes contend, simply, that Caxna.n Helper Moore worked on the dates
of claim and that he was paid in the amount for which claim is here made, that
Mr. Moore had furnished an affidavit confirming such contention, that Claimant
was never. given notice to return to work from a furlough status, that neither
the Claimant nor the Committee, has a record of such notice which is required
by Rule
7
(b ), that there is no record of any resignation by Claimant, nor
was there a record of Claimant's requesting a leave of absence, that Claimant
denied that he ever received a call from Carrier to return to work from a
furlough status, that Carrier erred procedurally when the General Foreman,
rather than the General Car Foreman, to whom the clai7r~ was addressed, denied
the claims. This latter error, they allege, was a violation of Section 3 !;i)
of the Railway Labor Act.
The first of the several issues raised herein is whether or not Claimmnt
was notified that he was being recalled to service.
Rule
8
reads:
"In restoring forces the Company will call furloughed men in
the order of their seniority. (Senior men to be called
before Junior men) and will return to their former positions
if possible; provided, however, that any furloughed employee
recalled to service may be granted a leave of absence if the
requirements of the service permit."
It is clear that notification, under Ru.1es
8
(d) and
7
(b), Is the
responsibility of Carrier and 5_n the execution of such responsibility that
there is no contractual method for accouplislzrent thereof established, except
that when a written notice to return to -work is utilized that a copy thereof
must be given to Federation No. 23.
The evidence of record is more supportive of the contention of Carrier that
in line with the practice of recalling f ur7_oughezs by telephone, Claimant was
so notified and that the contemporary assertions ::jade on that point were
uncontroverted by Claimant until about a month and a half later, when the
instant claims were appealed by the Local Chairman. Further, the assertions
made that Claimant was desirous of working in the Carrier's Freight Claim
Department, rather than to return from furlough, are not set aside merely
because Claimant later denied being recalled .from furlough.
The record, when read in balance, supports the conclusion that Carmen
Helper, D. Moore, did not commence work until February 20th, following his
physical examination that day. Hence, there can be no proper basis for
claims covering the period between February lath and 19th.
In view of ClaLaant's desire to work for Carrier 3_n another department,
it was more realistic and practical to honor such desire, rather than to take
his seniority wway, as required by Rule 7 (b). Yet, at the sere time, a
constructive leave of absence may be inferred on the basis of Claimant's
request as being made under Rule
8
(b).
Foam l Award No.
7953
page
5
Docket No.
7661
2-N&W-CM-'79
There is nothing shown in the record that Carrier had either anything to
gain by calling the Junior man from furlough, or, that there was bias against
the Claimant.
We conclude, on the basis of this record, that Claiinant established the
situation which he here is complaining against. It is well settled that a
party to a contract will not be permitted to recover from any loss or
breach of the contract which he has either directly or indirectly induced or
could have reasonably avoided. As pointed out in Third D:ivis ion Award No.
2015 (Lieberman)
"Carrier has the right to accept an employees statement of
unavailability under circumstances such as those of this
dispute, and not subsequently be held to have violated the
terms of a Rule of practice. (See Awards 1+208,
1580+,
16og8)"
Claimant, in essence, chose to forego his right of recall to work on
February 13th in favor of the potential of other more pr ef err. able enraloyment
with Carrier, and when it was later determined that he i-ra.s not acceptable
therefor, Claimant, apparently, developed an interest in pursuing the instant
claims. We find that Claimant wilf~ly made himself unavailable for the
period of time which he here now seeks to be co=ensated for. If such
unavailability be folly, it is his. Claa._,mant alone rLust suffer therefor.
He cannot benefit from that which he caused.
As to the contention concerning Article V of the August 21,
195+
Agreement, the Employes have eloquently and logically perused the argument
that each designated Carrier Officer is a separate and distinct entity within
a specific 2~ne and level of appeal with whom conference and correspondence
is repeatedly and uniformly exchanged. They aver that there is no purpose
to the Railway Labor Act, or Article V, if Carrier is permitted to arbitrarily
have arty of their off'icers answer various levels of appeals in disputes such
as this. Awards in support of such contention were offered.
We conclude that while such argument is persuasive and appealing, the
literal language of Article V (a) causes the Board to deny the Employee's
contention on this point. Here, the claims were handled in the usual
manner with the designated party. Article V, while placing a burden on the
Employee to present the grievance or claim to the "officer of the Carrier"
authorized to receive same, does not contractually place the same burden
on such officer. The Rule contains a contractual requirF:r.ent pertaining
to disallowance, that "the Carrier shall notify whoever filed the claim
or grievance..." In this connection see Second Division Awards
Id+64, 531:
and
6963.
Form 1 Award No.
7953
Page
6
Docket No.
7661
2-N&W-CM-`79
The Carrier's primary burden under Article V is only one of notification.
There is no specificity as to "who" or in "whose name" it shall be done.
Admittedly, the burden is not contractually equal. However, we are not
authorized to change the inequality as such authority remains vrith the Pax-t;ies.
In the circumstances this clan will be denied.
A W A R D
Claim denied.
IZA.TIOiSAZ RAILROAD ADJUSTIEM BOA-RD
By Order of Second Division
Attest: Exect.?tive Secretary
National Railroad Adjustment Board
BY
Win''
se:narie .t3,rasch - Aa;::inistrative Assistant
Dated at Chicago, Illinois, this 13th clay of June,
297.
DISSENT OF LABOR MEMBERS .TO A~^lARD 2d0. 7953 - DOCKET IVO. 7661
Rules of Agreement require that furloughed employes be
recalled in order.of their seniority. Here, Claimant emphatically
denies being recalled by telephone as Carrier alleges.
This Board stated in Second Division Award No. 3690:
"While it does not specify the method, it does
specify the end result, - the employe must be
informed. Its purpose is functional, not merely
technical; it is to impart notice to the employe
so that he can resume work as soon as reasonably
possible..."
When Carrier alleges it called Claimant on the phone to
notify of his recall, and that allegation is denied, the burden
shifts to the Carrier to show that it did indeed impart notice
to Claimant. As stated further in Award No. 3690:
"But the agreement places the burden of notification
on the carrier, which equitable considerations
cannot shift. "
See also Second Division Awards 5484 and 6392 on affirmati%Te
defense.
Award 7953, Docket No. 7661 strays far from the principals
established by this Board. The Award is in error and we must
dissent.
C . E . 'vdhe e
e
t '~'-"`~ \
Labor Member