Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9542
SECOND DIVISION Docket No. 9547
2-SOU-FO-183
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Southern Railway Company
Dispute: Claim of Employes:
1. That the Southern Railway Company violated Rule 24(d) of the controlling
agreement as amended effective March 1, 1975, when they arbitrarily
withheld Laborer C. H. Boles, Coster Car Shop, Knoxville, Tennessee,
from reporting to a regular position on September 8, 1980, without
affording him a proper notice of recall.
2. That accordingly, the Southern Railway Company be ordered to compensate
Laborer C. H. Boles in the amount of eight (8) hours each at the pro
rata rate for each of the days, September 8, 1980 through January
5,
e
1981
inclusive that he could have worked had he been given a proper
recall notice.
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 Claimant, Laborer C. H. Boles was employed as a Fireman and Oiler at the:
Carrier's Coster Shop at Knoxville, Tennessee on December
5,
1979. In April of
1980 Mr. Boles entered the Carrier's training program as a Carman Student Mechanic
at its McDonough, Georgia Training Center. By letter dated June 2, 1980 Mr.
Boles was notified by Carrier's Assistant Vice President Personnel Administration,
Mr. Hedberg, that due to prevailing general economic conditions he would be
furloughed at the conclusion of his Carman training at the McDonough Training
Center. Mr. Hedberg also advised that:
"...
Those of you who hold seniority in other crafts may wish
to advise your local employing officer that you intend to
exercise that seniority at the termination of your training.
The instant claim, filed on February 27, 1981, contends that after his
furlough, Mr. Boles contacted the Coster Shop office on June 9, 1980, and was told
Form 1 Award No. 9542
Page 2 Docket No.
9547
2-SOU-FO-'83
that he did not stand for work, and that upon his return to work as a Fireman and
Oiler on January 6,
1981
he became aware that Fireman and Oiler employes junior
to him had been working prior to his return to service. Mr. Boles asked that he be
reimbursed for lost time "from the time the first man with less seniority than
myself was called back to the time that I was called back".
Mr. R. H. Bible, the Carrier's Shop Manager, declined the claim on April 1,
1981
stating that there was no record of Mr.Boles ever advising that he wished to
exercise his seniority as a Fireman and Oiler, Mr. Bible further stated that:
.. the first notice I was given was on January
5,
1981 when,
with your committeeman W. T. Heath, you presented a letter from
R. D. Hedberg stating that you were to contact your employing
officer that you wanted to exercise your seniority in your old
craft."
By letter dated August 4, 1981 while the dispute was being handled on the
property, the Coster Shop Chief Clerk, Ms. B. J. Doffee stated as follows:
"TO WHOM IT MAY CONCERN:
This is to certify that C. H. Boles did not contact this office
in regard to re-establishing himself as a Laborer at the time
of his furlough as Student Carman ou June.6,
1981
until January
5, 3.981.
On January
5, 1981
Mr. Boles expressed his desire to -
return as a Laborer and presented this office with a letter
from Mr. R. D. Hedberg, dated June 2,
1980,
stating he could
contact his employing officer and advise that he intended to
exercise his seniority in old craft. Mr. Boles did not express
this desire until January 5,
1981,
and was then put to work
January
6, 1981
as a shop laborer.
/s/ B. J. Doffee
Chief Clerk Coster Shop"
The record shows that Mr. Boles was furloughed while in training as a Student
Mechanic within the Carmen's craft. Since he was furloughed while working, WUizin
the Carmen's craft, the Carrier was responsible under Rule 24. of its Agreement with
the Carmen's Organization to notify him to return to service as a Carman when
carmen forces were restored. However, the Carrier was not responsible for
automatically recalling him to service as a Fireman and Oiler.
Rule 153 of the Agreement between the Carrier and the International Brotherhood of Firemen and Oilers concerns the promotion of Firemen and Oiler employes to
other crafts. It states as follows:
"Rule 153. Employees of the Firemen and.0iler Class promoted to
positions in other crafts shall retain and continue to accumulate
seniority in the Firemen and Oilers Class for a period of ninety
(90) days from the date of promotion. If such employee returns
to the Firemen and Oilers Class prior to expiration of said
Form 1
Page 3
Award No. 9542
Docket No. 9547
2-SOU-FO-183
period for reasons beyond his control, he shall be privileged
to exercise a displacement right within ten (10) days from the
date so affected under the provisions of Rule 26."
When Mr. Boles was furloughed as a Carman Student Mechanic, he was entitled to
exercise a displacement right if he so desired. However, it was incumbent upon
Boles to decide if he wanted to exercise his seniority as a Fireman and Oiler;
and Mr. Hedberg's letter dated June 2, 1980 advised him that he should notify
his local employing officer if he intended to exercise seniority in another craft.
As set forth previously, Mr. Boles contends that he be contacted the Coster
Shop Office on June 9, 1980. The Carrier's Shop Manager and Chief Clerk differ
with the Claimant on this point as set forth above. It is well settled that this
Board does not resolve conflicts in evidence. Both Mr. Bible and Ms. Doffee state
that it was not until January
5,
1981 that Mr. Boles appeared at the Coster Shop
Office making reference to Mr. Hedberg's June 2, 1980 letter, seeking to exercise
his seniority to his old craft. We have no way of breaking the deadlock in
positions on the facts at this distant Board. And, we point out that the
Organization presented no further evidence on the property such as corroborating
statements from individuals who may have seen 1r. Boles at the office on June 9,
1980. In order for this Board to consider sustaining the instant claim the
Organization would have to show that Mr. Boles notified the Carrier on June 9,
1980 of his desire to exercise his seniority as a Fireman and Oiler. This the
Organization did not do. .Therefore,- we must deny this Claim.
A W
A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By y
osemarie Brasch -Administrative Assistant
Dated at Chicago, Illinois, this 6th day of July, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division