Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8409
SECOND DIVISION Docket No.
8224
2-C&O-CM-' 80
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( System Federation No. 4, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That Bonafide Carman, M. W. Napier, furloughed at Newport News,
Virginia, August 11,
1977
properly requested and was unjustly deprived'
from displacing a tentative carman at Fulton Yards, Richmond., Virginia,
in violation of "Guidelines to be followed with respect to bonafide
carmen who are furloughed at one point and desire to displace a
tentative carman at other seniority points on the Chesapeake District
of the Chesapeake and Ohio Railway Company", dated December 11,
1970.
2.
Accordingly, Napier is entitled to have his name placed on the bonafide
carments seniority roster at Fulton Yard, Richmond, Virginia with a
seniority date of August
17, 1977.
Also Napier is further entitled to
full rights and benefits of which he was deprived of until his request
is complied with.
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 thereof.
Because of a wildcat strike situation in the coal industry, claimant, a
bona fide carman at Newport News, Virginia, was furloughed effective August 11,
19770
By letter dated August
15, 1977,
claimant made a request to displace
effective August
18, 1977,
a tentative-carman at Richmond, Virginia, as permitted
by the provisions of a set of agreed-upon "Guidelines" dated December 11,
1970.
This set of "Guidelines" dated December 11,
1970
provide as follows:
"GUIDELINES TO BE FOLLOWED WITH RESPECT TO BONA FIDE CARMEN
WHO ARE FURLOUGHED AT ONE POINT AND DESIRE TO DISPLACE
TENTATIVE-CARMEN AT OTHER SENIORITY POINTS ON THE CHESAPEAKE
DISTRICT OF THE CHESAPEAKE AND OHIO RAILWAY COMPANY
Form l
Page 2
Award No.
84o9
Docket No.
8224
2-C &O-CM-' 8o
(Applicable
only to employes holdi seniority as bona fide carmen
on the Chesa ake District of C&0
1. Bona fide carmen furloughed at Point 'A' and who made proper
request would be permitted to displace tentative-carmen at
other seniority points upon written request provided it was
considered by the local supervision at the point at which they
desired to displace that the bona fide carmen were qualified
to perform Carrier's service requirements as they existed at
the point at which they desired to displace a tentative-carmen.
Where there was question as to the qualifications of an
individual employe the individual would be given not to exceed
a three day trial period to determine whether the employe was
or was not qualified. However, if in the judgment of the local
officers employe in question can qualify with a few additional
days time, additional time may be given. If the employe was
not qualified displacement would not b e permitted. A bona
fide carman furloughed at Point 'A' desiring to go to any other
seniority point must make request to do so within thirty days
from the effective date of his furlough; otherwise, any
consideration for transfer will be under the provisions of
Rule
29
and applicable only as additional vacancies occur.
Bona fide carmen requesting to make displacement in line with
the above would be required to give one day's advance notice
to the local supervision at the point at which they desired
to displace a tentative-carman.
3.
Tentative carmen and/or others being released as a result of
bona fide carmen displacing could be immediately furloughed
since no force reduction was involved and no five day notice
would be required to the ones being furloughed as a result of
such handling.
4.
When a bona fide carman who is furloughed went to another
point to displace a tentative-carman the junior tentative
man at the point at the time would be displaced and the
carman so displacing would establish seniority and after
initially establishing seniority with further changes,
exercising of seniority, etc., would be on the basis of the
general agreement rules.
5. Bona fide carmen -who were furloughed and were subsequently
given recall notice would not be permitted to displace
tentative-carmen at other points after notice of recall.
6.
Bona fide carmen will not b e released from a point at
which tentative-carmen are working for the purpose of
going to other seniority points at which vacancies might
exist. Consideration, however, would be given to making an
exception in hardship cases.
Form 1
Page
3
Bona fide carmen who are on temporary furlough as is
practiced during miners' vacations, Christmas holiday, etc..,
will not be permitted to displace tentative-carmen at
other points.
Office of Director of Labor Relations
December 11,
1970"
Award No.
8409
Docket No.
8224
2-C&O-CM-'80
Claimant's request to displace a tentative carman at Richmond was denied by
Carrier because of the temporary nature of the furlough. Claimant was recalled
to his carman's position at Newport News on August
26, 1977.
Subsequently, by letter dated August
29, 1977,
a claim on behalf of claimant
was initiated which requested:
"We, therefore request that Mr. Marvin W. Napier's name be
placed on the carmen's seniority roster, Fulton Yard,
Richmond, Va. effective
8/17/77
3;00 P.M. (sic) with full rights
and benefits, any of such as the employee may have been deprived
of until above request is complied with."
It appears to this Board that the cause of complaint did not exist at the
time of the formal claim was initiated. The entire issue became moot as of the
time claimant was recalled to his bona fide carman assignment on August
26,
1977.
This Board has consistently refrained from making any determination on an
issue which is simply nonjustifiable. What was said in Second Division Award No.
6143 (MeGovern) is equally applicable here. There we wrote:
"It is not a justifiable case or controversy in its
present posture and we will accordingly deny the claim."
Accordingly, we will deny this claim as well.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
Ro/§emarie Brasch - AdministFative Assistarxt
Dated at Chicago, Illinois, this 23rd day of July,
1980.