Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8275
SECOND DIVISION Docket No.
8152
2-SOU-SM-' 80
The Second Division consisted of the regular members and in
addition Referee Richard R. Kasher when award was rendered.
( Sheet Metal Workers' International
( Association
Parties to Dispute:
~ Southern Railway Company
Dispute: Claim of Employes:
1. S. L. Price and R. L. Asselin protesting seniority date of A. L. Lawson*
2. Recommending he serve
732
days as Student Mechanic.
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 waived right of appearance at hearing thereon.
Claimants both completed 732-day apprenticeships as sheet metal worker
helper/student mechanics prior to being promoted to journeyman status. When they
began their apprenticeships both had some previous experience in sheet metal work.
One had done pipe work, while the other had done sheet metal fabrication work.
Neither had experience with all phases of work within the sheet metal workers'
craft or class.
On October 1,
1976
an individual was hired by the Carrier who had. extensive
experience, over a ten year period, in all phases of sheet metal work. This
individual was not required to serve an apprenticeship but was hired as a
journeyman sheet metal worker.
On August 10,
1977,
the Claimants sent a letter to the Carrier questioning
the applicant's having been placed directly on the journeyman's seniority list.
The Claimants were sti11 serving their apprenticeships and stated:
"He is no more qualified
than we
are to be placed on the
seniority list. (The Applicant's qualifications do not
include the work (we) have performed preceeding his arrival.
We are recommending that he serve 732 work days as Student
Mechanic in phase four as we are doing."
Form 1 Award No.
8275
Page 2 , Docket No.
8152
2-SOU-SM-'80
The Carrier did not reply to the Claimants' letter or to a subsequent letter
by the General Chairman within the sixty-day period specified in Rule
35
of the
Agreement. On October
15, 1977
the Claimants sent a second letter to the Carrier,
advising that the matter would be referred to the General Chairman.
The Carrier responded on November
8, 1977.
After apologizing for not
answering the previous letter, the Carrier advised the Claimants:
"The fact is that from your wording I did not see that you were
expecting an answer. I thought that you. were simply going
through the
formality of notifying me that you intended to go
higher than the local chairman level in attempting to have the
seniority list adjusted as you requested."
The General Chairman and the Assistant Director of Labor Relations then had a
number of meetings on the matter. They were unable to resolve the issue and, now,
this Board must decide if the granting of journeyman's seniority to the Applicant
was improper.
It is the Organization's position that, under Rule
39,
the Applicant must
work the
732
day apprenticeship. Rule
39
states, in relevant part:
"PROMOTION OF HELPERS
RULE
39
...(d) Helpers promoted to mechanic on and after the
effective date of the agreement shall, subject to the election -
provided for in Paragraph (e) below, after working a period of
three years as promoted mechanic, a total of
732
work days, (a
period of four years, a total of
976
work days, for electrical
workers) establish a seniority date as mechanic in the craft
in which employed which shall be retroactive for a period of
366
work days computed from the date the pra= oted mechanic success
fully completed working the number of work days as promoted
mechanic as specified for his craft herein above. Days worked
in a promoted capacity shall be computed on the same basis as
creditable days of training are computed for Student Mechanics
in Phase IV."
The Organization further argues that the claim should be sustained by virtue
of the Carrier's failure to respond within the sixty days specified in Rule
35,
which provides:
"CLAIMS Alms GRIEVAIMES
Rule
35.
(a) All claims orgrievances arising on or after
January 1,
1955
shall be handled as follows:
... Should any such claim or grievance be disallowed, the
carrier shall, within 60 days from the date same is filed,
notify whoever filed the claim or grievance (the employee
or his representative) in writing of the reasons for such
disallowance. If not so notified, the claim or grievance
14000,
Form 1 ,Award No. 8275
Page 3 Docket No. 8152
2-SOU-SM-'80
"shall be allowed as presented, this shall not be considered
as a precedent or waiver of the contentions of the carrier
as to other similar claims or grievances."
The Organization notes in its rebuttal that the Carrier did not provide the
test of the rules relevant to the awards that the Carrier cited, and thus, the
Organization concludes that the Board should base its decision on the specific
language of Rule 35 and not on awards of other cited tribunals.
The Carrier dismisses the Organization's allegation that Rule 35 was violated,
arguing that the Claimants' initial letter contained no evidence or proof that would
form the basis for a valid claim. The Claimants' protest, according to the
Carrier, is just a statement of opinion. Thus, the Carrier concludes, it is of
no consequence that the Carrier offioer failed to render a decision within the
sixty-day limit since at that time there was no dispute raised or pending.
The Carrier also notes that, in any event, its failure to respond within
sixty days does not serve to validate the Claimants' "recommendation" that the
Applicant be required to serve 732 days.
The Carrier makes the additional argument that, should this Board render
other than a dismissal or denial award, the Applicant should be given notice as
an affected party and permitted to be hearal.
We are not persuaded by the organization's argument that, under Rule 39, the
Applicant must work the 732 day apprenticeship. No valid protest was made when
the applicant was hired and it has not been demonstrated how Rule 39 has been
violated.
No evidence wa&provided to support the Claimants' initial arguments that the
Applicant was no more qualified than they were or that he had not performed work
that they had. There is nothing that the Board can find in Rule 39 which prohibits
the Carrier from directly hiring of the Applicant was anything but proper.
The Organization argues that the Carrier's failure to respond to the protest
within sixty days justifies our sustaining the claim. The Carrier's defense is
that the protest is fatally defective since it contained no evidence or proof.
The Carrier's failure to initially respond to the Claimants' letter is
understandable given the non-specific nature of the protest. The time limits set
forth in the agreement do not provide the Carrier with discretion in deciding which
"claims" must be answered and which may be ignored. In the interest of better
industrial relations, the Carrier should have replied to the Claimants within sixty
days. However, we find that the Carrier's silence was justified in view of the
informal nature of the Claimants' letter and their failure to allege rules violations
or request specific relief.
Thus, the Board concludes that the claim falls on its merits and that the
Carrier's failure to respond to Claimants' initial letter did not violate the time
limits specified in Rule 35.
Form 1
Page
4
The agreement was not violated.
Claim denied.
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
00/
By v
~R s xie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of March,
1980.
Award No. 8275
Docket No. 8152
2-SOU-SM-180