Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8977
SECOND DIVISION Docket No.
8725
2-C&NW-CM-'82
The Second Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. That the Chicago and North Western Transportation Company violated the
terms of the controlling agreement when the Division Manager did not
make reply to Local Chairman Onstott's claim dated January 21,
1979
within the prescribed time limits.
2. Upgraded Carmen Allan Martin and Tall Shelby, Madison, Illinois,
were deprived of their rightful seniority dates when Carrier gave
special consideration in filling a vacancy in the Apprenticeship
Program to Carman Helper Arthur Molinar, in violation of the Apprentice
Agreement and Rule 28 of the controlling agreement.
3. That the Chicago and North Western Transportation Company be ordered to
give Upgraded Carmen Allan Martin and Tall Shelby seniority dates as
apprentices, dating from the date Apprentice Arthur Molinar was
inducted into the Apprentice Program.
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.
The Organization claims that Carrier violated the Agreement, Rule 28, and
the Apprentice Agreement, Item 10, when it allowed a junior employe into the
apprentice program before the two Claimants, A. Martin and T. Shelby. In the
Employes' view, claimants were deprived of the retroactive seniority they would
have earned by completing the program earlier. The Organization also asserts that
Carrier violated Article V(a) Agreement of the August 21,
1954,
by failing to
properly deny the claim.
Carrier on the other hand, insists that it did not violate the Agreement.
For this reason, it asks that the claim be denied.
F orm I.
Page
Award No.
8977
Docket No.
8725
2-C&NW-CM-'82
First, Carrier asserts that the Organization failed to present a claim or
grievance in writing within the required sixty (60) days. Since it received no
claim until April 21,
1979,
Carrier argues that it was not obligated to disallow
a claim. It insists that it was not required to respond.
Second, Carrier urges that the Organization has failed to demonstrate how
the junior employe received special preference. It also insists that no rule
of the Agreement supports the Union's contention.
After analyzing the evidence and arguments presented we must conclude that
the grievance is without merit. Stated simply, the Organization has not met its
burden of proving that any rule has been violated that would warrant the granting
of apprentice seniority. In this regard, we note that at the time of the claim
that Claimants already had Carman seniority. We will dismiss the claim for lack
of proof.
However, before closing we feel constrained to comment about the manner
in
which this claim was handled. The Organization's delay in filing an original
claim is simply unexcusable. We are persuaded that no initial claim was filed.
Similarly, Carrier's failure to respond, even if the claim had been misplaced o^_
appeared to be moot, is equally unexcuseable under Article V(a).
Frankly, the record does not afford this Board with sufficient information
to evaluate fully the parties' respective positions. Thus, we will dismiss the
claim in its entirety.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
~o>emarie Braseh - Administrative Assistant
Dated at Chicago, Illinois, this 10th day of March, 1982.