Form 1 NATIONAL RAILROAD ADiUSTVZ,i7 BOARD Award No. v='43
SECOND DIVISIO1T Docket No. E C81-T
2-BTTI-FO-' 80

The Second Division consisted of the regular members and in addition Referee Kay Mci:Parray when avrard was rendered.

( System Federation No. 7, Railway Employes

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

Parties to Disrnzte: (Firemen & Oilers)

Burlington Northern Inc.

Dispute: Claim of Fmnloyes:

1. That the Burlington Northern, Inc. violated the terms of the controlling agreement, specifically Rule 27(a), when Shop Superintendent A. Jacobsen did not make reply to General Chairman Burri11's claim, dated January 18, 1978, until April 14, 1978, which is 86 days after date said Claim was filed.

2. That under the terms of the controlling Agreement, the Burlington Northern

Inc. denied Mr. Jerry C1aaM, laborer, Livingston, Nmntana, the contractual.

right to exercise seniority to position of P.:achinist Helper from m :Dece~ber

13, 1978, which position z-ras bulletined and established ~rhile he eras on

a bonafide leave of absence.

3. That, accordingly, the Burlington Northern, Inc. be ordered to compensate Mr. Jerry Claar the difference in applicable helpers' rate of pay during the aforementioned period, and also a sum of $3.00 per working day, account not transferred to aforesaid position within 10 days; from January 1, 1978 through September 73, 1978.

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 taaived right of appearance at hearing thereon.

The Claimant, Mr. Claar, was employed as a laborer at the Carrier's Livingston, Montana shop. From November 14, 1977 to December 21, 197''(, he was on a medical leave of absence. During that period of tire the Carrier advertised a vacancy i n a Machinist Helper's position. In accordance with the contract, since theres:ere no helpers available for immediate use, it wws assigned to the senior qualified
`-orer who bid the job. Upon his return to active service, Claimant requested that
be allowed to displace the party assigned the vacancy since he was senior to him.
Ir: so doing, he relied upon .pule i5 (e) of the agreement which reads in pertinent
part
Form I
4, ...

' 'nzi o-, e a on leave or _.. sense a, s

.`n i,... . .r: ~'.n:- 1-o ..?'°': _c· , ;~; ~_._.~.
'-7
s._~.~' -.U~»-,_.:'~ noS41..'r..`i.u ~i'r ..

Fven tua? denial ox" the cl am as outlined in the submission ; ave riv to 'the
problem--~: here under consideration.

The organization points out that the Carries violated Rule 27(a) of `she agree-at vhich reads in pertinent part:

~ ....Sho1LId an-7-7 such cl o'4" v-'rie"iance be diS::.11OZ·7ed, the Car-=_="
shaZI, 'svf.+trin si«ty tS(D) days from -1he date same is f"iIed, nC`.__ ;, whoever wil ed the clal.,m or grievance (the em;,,lo-re or his re;;t'_~.~?iV~.ti~re) in writing of the reasons for s,;ch disal-lowance. ice: rest so no-__ed, tree claim o.' grievance shall be allo,.ved as presented."

'e foregoing 7an:g-aage is simple and e~·'D.i sit. -t .s not within t-^. n author,.ty

~n~ -y~ ' ' L, ·d-i'%`·~ ~-~ y V nr_. yl^ ..,.p r_.o t- Iam'eraus u'a.'?T.'.~G~.S o' .~ s' w.r'd

of th "` ~i~'C~'..:~...1. Lo _~._h~ ~~ the ~G7riL.u o1 ~-_.~. .~.r_~, ~''v,~..1.11J· f V
have 'ut_rih~.~'d '-'i=`= V-'·y~.,~__..;T of sues time 1_nits, in 1:?_e _ase unde'considc', :._'C?i, the Carrier cle~"..'....y n_x..~:.-~e.N...ed tile sL~'°dav ~y.'r lin...7_·i aid, ac~n..L~d.I._r'~°g

~-,.~5 .._. :.~.1w.t

hold that the c~aL~ shaald be a-! owed 1as -)resented without any reference -~o the merits...

ate Carrier violated Rule 27(a).

Maim sustained.

Attest: Executive Secretary

National Iiai lroad Adj Las tnent Board

A W A R D

NAT IMT1.V RAILROAD A Dcl ij>s =it1 BO~;D
By order of Second Division

Dated at Chicago, y? ..2inois, this 6th day of 7,eb_r-:ary, 1;SJ.