C:\AWARDS\OUT\2-08091.htm

Form l NATIOITAL RAILROAD ADJU`CTN'--?`7 BOARD Award No. 809
SECOND D=SION Docket i1o. 7841 2-SCL-CM- 1 79

The Second Division consisted of the regular merbers and in addition Referee Bernard Cushman when award was rendered.

( System Federation No. 42, Railway Employes'

( Department, A. F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

( Seaboard Coast Line Railroad Company

(

Dispute: Claim of Employes:

1. That the Seaboard Coast Lane Railroad Company violated terms of the controlling agreement when they failed to give furloughed Caravan Apprentice L.

1,1.

Ternest, et. als., preference in returning to service i,larch 12,

l9'; 0.

2. That accordingl7, the Seaboard Coast U_ne Rail-road Company be

ordered to compensate Caznan Apprentice

TJ.

~,I. Ternest, et. als.,

who were not restored to service in seniority date order after

they were recalled from :ft).rlou-?:, the: emount of t:u~ne Carmen

Apprentices junior to

theL1

wor':4ed before they were allowed to

return to ';~-or:, at thei=· ~,^_ ~:! a.cble a"7prent-.ce rate. Also, Carr.an

,r .; - f- a -~ <.

b

credited

-er*L

th such time

App L. ,. 're.-'z1..St, e~. <~_....,

towards completing t'.lei?° apprenticeshf.p.

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 erzployes involved in this dispute are respectively carrier and emrjloye within the meaning of the Rail-may Labor Act as approved ju.ne ?1, 1,34.

This Division of the Adjustment Board has jurisdiction over the disp'ate involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Clal.mant, L. V d. Ternest, a Carnan apprentice employed by the Carrier

a t its 1vaycross Shop, was recalled from xftzrlough on :,.arch 31, 1976. C1aim'ant Ternest was the most; senior of the furlouhea employees. The Carrier called the furloughed ez-,ployees by telephone. '_'he Carrier's c1e~°h ate:~pt ed to call Terne-t .f^..rt but yea? ed to :_ =ach him and proceeded to call the other twenty-six apprentices s2icjec-L to reca:L1.. Ternest had left two telephone n1^iibers with the Carrier anti. his adraress was on file in its off .ce. Sometime during the clay, P.=arc' :1 li, 19;6, Terries'; ascertained that the Carrier was attmpting to reach x:un and tizat he had been recall ~d to work. Cn that, day, MEorch 11, Ternest reported to the Carrier's of ,'ice aftoli P-Ojxs and talk=ed w-ith the c.'! er'c ,a"i,,o had not 1 ei°t the oft-.'xce. '11',e clerk advised him to re turn early on the f ol.owinJ -:~:c~.°r:ing, 1 larch 12

, 176.

Form 1 Award No. 8091 Page 2 Docket No. 7841 2-SCZ-CM-' 79 The Carrier required each. of the recalled employees to have a physical examination prior to returning to work. Ternest did report the following morning and was furnished the necessary papers and an appointment vms made with the Carrier's doctor for March 16, 1976, when he was approved for return to service and was allowed to go to work, at 10:30 a.m. on that date. When the Carrier did not reach Ternest on the telephone, the Carrier then called the next employee who was at hoae and scheduled a physical examination that afternoon and returned him to work the following day. The Carrier's doctor had available only eight examinations for eight employees each day and appointments were made as the employes were contacted. This dispute focuses about the fact that doctor's appointments were not available for Ternest until March 16, 1976, and the Claimant and certain other employees were not allowed to return to service until after such physical examinations, whereas junior employees who had been contacted by telephone were given earlier doctor's appointments, were approved and were returned to service prior to the senior employes. Rule 15 applies generally to seniority in the filling of new jobs and vacancies. The pertinent rule here would appear to be Rule 23 (b), which reads: "In the restoration of forces, senior laid off men will be given preference in returning to the service, if available, within a reasonable Mime. Employees desiring to avail themselves of the privileges of this rule must file their addresses with their eamplo-,,ring officer at the time force is reduced, and renew same at each change of address. Failure to comply with this rule, or failure to return to the service within ten days, after being notified by mail or telegram sent to the last address given, or give satisfactory reason for not doing so, will eliminate such employees from the service." The Carrier argues that A:oprentices do not have seniority as contemplated by Rule 15 and that, therefore, Rule 23 is not applicable to Apprentices. The Board rejects this contention. There is no exclusion of Apprentices in the language of Rule 23 (b ). Moreover, the Carrier maintains a seniority roster for Apprentices. Appendix F of the January 1, 1968, Agreement, under Paragraph Third states, "Regular and Helper Apprentices referred to in Paragraphs First and Second will. retain their seniority as Apprentices." Clearly the Apprentices have relative seniority standing in their respective Apprentice groups. See Award 6846. The issue here is not whether the Carrier has a right to require physical examinations on return from furlough. The claim here involves the administration and anplication of tale 23 (b). Furloughed employees are entitled to the protection of -the Rule. The Carrier's actions in delaying the physical examination o1=' Claimant Ternest, under the circumstances of this case, deprived the ClaLnant of the preference as the senior laid off roan that Rule 23 (b) provides. The Carrier's action deprived Claimant Ternest and other Form 1 Award No. 8091 Page 3 Docket No. 7841 2-SCZ-CM-f79 claimants, if any, who were similarly situated to Ternest of the opportunity to maintain their relative seniority standing for the purposes of obtaining a Journeyman date by way of accumulated hours. The Board is of the view that the Carrier could have avoided this situation by earlier anticipation of the authorization to return the employees or by holding appointments open for physical examinations when , employees were not immediately contacted by telephone on March 11. The claim must be sustained. A WAR D Claim sustained. NATIONAL RAILROAD ADJUSMT2IT BOARD By Order of Second Division Attest: Executive Secretary National Railroad Ac~justment Board BY . ~/Rosemarie Brasch - Adminsatratzve Assistant ~Dated(at Chicago, Illinois, this 27th day of September, 1979.