Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9557
SECOND DIVISION Docket No. 9432
2-SPT-EW-'83
The Second Division consisted of the regular members and in
addition Referee James F. Scearce when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Southern Pacific Transportation Company (Pacific Lines)
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician
Helper M. A. Davis was unjustly treated when he was furloughed from the
service of the Southern Pacific Transportation Company (Pacific Lines)
on March 14, 1980, due to alleged excessive absenteeism and alleged
poor work performance and attitude.
2. That accordingly, the Southern Pacific Transportation Company (Pacific
Lines) be ordered to:
(a) Compensate Electrician Helper M. A. Davis for all time lost
during his furlough with the loss of wages to include interest
at the rate of six percent
(6%)
per annum and restore all rights
unimpaired including service and seniority, vacation, payment of
hospital and medical insurance, group disability insurance, and
railroad retirement contributions for all time that the aforesaid
employe was held out of service.
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.
Claimant was classified as an Electrician Helper in the Mechanical Department
at the Carrier's Eugene, Oregon Locomotive Maintenance Plant at the time of
events germane to this dispute. Claimant was furloughed on March 14, 1980, per
the Company because of a decrease in need for the classification he held. The
record shows that the Claimant previously had been a journeyman electrician with
the Carrier before returning in the helper classification; thus, when an opening
occurred for a journeyman electrician at the facility, the Claimant sought, and
was denied, such opportunity on the basis of his attitude and work production in
the helper classification. A grievance was filed on May 19, 1980 contending that:
Form 1
Page 2
Award No. 9557
Docket No. 9432
2-SPT-EW-183
the Claimant's furlough as a helper was inappropriate, an attempt by the Carrier
to rid itself of an employe without disciplining him and, thus, denied the
Claimant access to the hearing/grievance procedure under the Agreement. Part of
the basis for such conclusion by the Organization was a memorandum from the
General Foreman to the Plant Manager -- an internal Carrier document -- complaining
of the Claimant's absenteeism and safety; it was dated March 7, 1980 -- a week
before his furlough. A statement in such memorandum is relied upon by the
Organization:
"I feel rather than taking this man to a formal hearing that
we should force reduce him and thereby eliminate the expense
and time consuming process of holding a formal hearing."
The record shows that the Claimant was recalled to the helper position on
August 27, 1980 and that on October 22, 1980 he resigned from the Carrier on his
own volition. The Carrier contends the matter is moot because of the aforementioned resignation. We think not, since the Claimant remained an employe while
in his furlough status during the March-August, 1980 period and it was during such
period a grievance was filed. (The record does not indicate citations of time
limits by the Carrier
to
the filing of the grievance.) It follows that any
relief sought would have to be limited to such March-August, 1980 time period.
We find that, by virtue of the Claimant's recall to the helper position in
August, the Organization's contention is rendered without substance. The
Claimant's rights, if any, were limited to the helper classification. The
Carrier has the unilateral right to determine how many and which classifications
it needs to perform work assignments at any given time. The Agreement provides
guidance as to who is to be retained. Without addressing the question as to
how the General Foreman-Plant Manager memorandum came to light, it is obvious that
his proposed action as he stated was in error as complained by the Organization.
Such conclusion does not ascribe rights to the Claimant in the journeyman
classification however -- only the helper one. The fact that the Claimant was
recalled from furlough in August indicates that the General Foreman's ill-advised
statement was not heeded. The Organization must demonstrate that the Carrier
furloughed the Claimant for other than sound economic reasons. While the timing
of the General Foreman's memorandum is suspect, it is insufficient to conclude it
formed the basis for the Carrier's decision to excess a helper position. The
Claimant's recall in August of 1980 gave credence to such action.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By~, ~ -__.
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 13th day of July, 1983.
NAT ICNAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division