Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9936
SECOND DIVISION Locket No. 9593
2-LT-USWA-'84
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( United Steelworkers of America, AFL-CIO
Parties to Dispute:
( Lake Terminal Railroad Company
Dipsute: Claim of Employes:
(1) The instant time claim is instituted in behalf of employee Colby
Mansell whose seniority rights under the controlling agreement,
specifically rule 6(d), have been irrationally and unjustly violated
when you refused to permit him to displace a new employee on May 20,
1981.
Rule 6(d) clearly and unambiguously states:
"In the event a new employee is hired or a man is promoted to a craft
in the Car Repair Department, a senior employee may exercise his
seniority to displace him within five days."
On Monday, May 18, 1981 you told lrlr. Mansell that he could not displace
a new employee because he (the new employee) "was not in the union."
On Wednesday, May 20, 1981 you would not allow Mr. Man sell to displace
a new employee because you "were under orders from the front office to
keep the new employees on the 'day turn shift." Since you have cited no
contractual basis for the erroneous and ridiculous reasons given for
this carrier's actions as noted above, it becomes quite clear that this
case is a continuity of the carrier's assault on the agreement in order
to achieve a union-free environment for its summer employees. This
arbitrary, unilateral and arrogant attack was initiated in Case CD-380, and evidently the carrier feels it must reinforce its position in
that case by
running roughshod
over any part of the agreement that does
not align with their decision in CD-3-80.
Incidentally, the Organization would appreciate your notifying us of
the identities of the person or persons in the "front office" who are
responsible for your decision.
(2) It is requested that beginning with May 20, 1981, and continuing for
every workday until this situation is resolved, the carrier compensate
Mr. Mansell eight (8) hours pay at the helper's rate as penalty for
this presumptuous and dispicable disregard for Mr. Mansell's seniority
rights, in addition to all other earnings.
(3) Further, it is requested that the carrier compensate Mr. Mansell an
additional sixty-five dollars ($65.00) for every fourth Saturday and
sixty-five dollars ($65.00) for every fourth Sunday of each month,
beginning with May 23 and 24, 1981. This request is based on the wage
loss Mr. Mansell suffers by not being able to serve with the U. S. Coast
Guard Reserve on the days noted due to the instant violation.
Form 1 Award No. 9936
Page 2 Locket No. 9593
2-LT-USWA-' 84
Findings:
The Second Division of the Adjustment Board, upon the whole record and a~'.1
the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employes 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 contends that Carrier violated Rule 6(d) of the controlling
Agreement when it did not permit Claimant to displace a new employe who was
scheduled to work as a helper. The new employe was hired less than five (5) days
prior to Claimant's May 20, 1-982 displacement request. Rule 6(d) which is in
contention herein is referenced as follows:
"In the event a new employee is hired or a man is promoted to a craft
in the Car Department, a senior employee may exercise his seniority to
displace him within five days."
In defense of its petition, the Organization argues that the clear language
of this provision requires that a senior employe may exercise his seniority to
displace a newly hired employe in the Car Repair Department. It avers that this
interpretation application has been consistently observed on the property.
Carrier contends that the aforesaid provision was not intended to apply
Ito
a
situation whereby a new employe is hired as a helper, but instead was purposely
developed to apply to situations whereby a person is hired either directly into a
craft position or alternatively whereby an existing employe is promoted to a
craft position in the Car Repair Department. It argues that this rule was
adopted by the parties in 195 7 following a seniority dispute in 1956 which involved
the hiring of employes from another railroad. It asserts that the resulting
modifications dealt with seniority and the effect of junior service employes
obtaining craft
positions ahead of senior departmental employes and notes that
the phraseology and grammatical construction of Rule 6(d) shows that the terms,
hired and promoted, apply only to craft positions in the Car Repair Department.
Moreover, it avers that Rule 26(a) which provides that Carrier shall have exclusive
jurisdiction over new employes during the ninety (90) day probationary period
reinforces and supports its interpretation of Rule 6(d) since it has exclusive
control over the probationary employe and the probationary employe has not
accrued seniority during this period.
In our review of this case, we agree with Carrier that Rule 6(d) was not
intended to apply to newly hired probationary helpers. Carrier's detailed development
of the genesis and rationale of this provision, particularly, the precipitating
incident in 1956 and the rule's grammatical articulation persuades us that it was
adopted to address a definable seniority problem. Specifically, it permits
senior employes to exercise displacement rights when less senior employes are
Form 1
Page 3
Award No. 9936
Locket No. 9593
2-LT-USWA-184
hired or promoted to a craft position in the Car Repair Department. The application
of seniority protection in this instance applies to employes with accumulated
seniority service and by definition, the newly hired helper Claimant sought to
displace would not have acquired protective seniority during the probationary
period. In Second Division Award No. 9107 involving the same Organization and
the same Carrier, we held that a probationary employe did not accumulate
seniority while in a probationary status. Rule 6(d) accords displacement
seniority rights when the more senior employe seeks to displace a new employe or
an existing employe promoted to a craft in the Car Repair Deparmtnet. Neither of
these contemplated scenarios is present here.
A WAR D
Claim denied.
..
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
firm',
Nancy J. v e,= Executive Secretary
Dated at Chicago, Illinois, this 6th day o f June, 1980