Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9139
SECOND DIVISION Docket No.
9170
2-B&O-CM-`82
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
~ Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
No. 1. That Carrier is in violation of the controlling Agreement, such
violation flagrantly violating the contractual rights of Claimants
herein, whereas Carrier has repeatedly refused to bulletin vacant
turns of the Cumberland assigned wrecking crew, such vacancies
occurring after the effective date of the December
4, 1975
Agreement,
as a result of illness, death, retirement, etc., some such vacancies
existing for a period of over two (2) years, placing the Carrier in
violation of Rule
15
of the Shop Crafts' Agreement, and Article VII
of the December
4, 1975
Agreement.
No. 2. That Carrier is in violation of the time limits rule, Afticle V, of
the controlling Agreement, effective January 1,
1955·
No.
3.
That Carrier be ordered to adhere to the provisions of Rule
15
and the
December
4, 1975
Agreement, Article VII, and to immeidately bulletin
the vacancies existing on the Cumberland assigned wrecking crew, that
have transpired since the effective date of the December
4, 1975
Agreement.
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,
193..
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 argues that the Carrier has repeatedly violated Article
VII of the December
4, 1975
Agreement when it refused to bulletin and fill
alleged vacancies on the Cumberland assigned wrecking crew. According to the
Organization, the Carrier has impermissibly allowed four of the sixteen assigned
positions on the crew to remain vacant for a period of two years.
The Carrier contends all sixteen positions are assigned and so no vacancies
exist. Also, the Carrier asserts that though some of the assigned crew members
are ill or refuse to work when called, these workers still retain their position.
Form 1
Page 2
Award No. 9139
Docket No.
9170
2-B&O-CM-'82
We note from the evidence presented in the record that, in
1980
and
1981
(subsequent to the filing of this claim), the Carrier did bulletin and award
several positions on the Cumberland assigned wrecking crew after one member had
died and two others had resigned their positions. Currently, all sixteen
positions on the Cumberland assigned wrecking crew are held by carmen engaged in
active service. These subsequent events render this claim moot. The claim, in
its present posture is no longer a viable controversy. See Second Division Awards
No.
6143
(McGovern) and
8394
(Scearce).
The Organization also contends that the Carrier did not timely deny its
appeal of this claim to the Manager of Labor Relations within the limits set
forth in Article V of the January 1,
1955
Agreement. Though the record
discloses that the Carrier did not timely deny th= appeal, we cannot sustain
the claim because the subsequent filling of positions on the Cumberland crew
has rendered the underlying claim moot.
A WAR D
Claim dismissed.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By _~ ~/~
Los
rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of June, 1982.