Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10657
SECOND DIVISION Docket No. 10269
2-MP-EW-'85
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Rule 15(a)
and (b) and the NOTE to Rule 15(a) of the Communications Agreement
effective August 1, 1977 when they failed to bulletin a newly
created position and allow the bidding process thereby denying
the seniority rights of every communications maintainer on the
seniority roster eligible to bid; and when Communications Maintainer
M. D. Hanna was given the opportunity to exercise his seniority by
"rolling and bumping".
2. That, accordingly, the Missouri Pacific Railroad Company be ordered
to
(a) Properly advertise the new position, receive bids, and the
assignment made to the senior employe of those making appli
cation in accordance to the Agreement,
and
(b) Compensate eight (8) hours at time and one-half commencing
December 16, 1981 and continuous until Item (a) above of this
claim is initiated to be divided equally among each and every
communications maintainer who held and is holding bidding
rights under the 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 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.
This dispute was triggered when the Carrier, on December 8, 1981,
notified Communication Maintainer M. D. Hanna by letter that:
Form 1
Page 2
Award No. 10657
Docket No. 10269
2-MP-EW-'85
"Effective 1:01 AM Wednesday, December 6, 1981 your
assigned rest day will be Sunday, standby day
Saturday. Your hours of assignment will be 8:00 AM
to 5:00 PM with one hour lunch period per rule (C).
Your headquarters, territory, and duties remain unchanged.
"You will be permitted to exercise your seniority or to
retain this assignment. Please advise your preference."
Mr. Hanna responded that he wished "to retain this position". Prior to this
change, Mr. Hanna worked 7:00 A.M. to 4:00 P.M., with a rest day on Tuesday.
The issue here, as asserted by the Organization, is that the position
occupied by Mr. Hanna is a bulletined position and, thus, the change of the
bulletined hours and rest day required the posting of a new bulletin and
receiving of bids in accordance with the parties' Agreement.
The Carrier essentially contends that in order to better meet its
operational requirements, it was necessary to change the rest day and starting
time of Mr. Hanna's regular position. It maintains that the change of the
starting time is in accord with Rule 5 of the Agreement. Moreover, it submits
that the duties, headquarters, and territory of the assignment remain the
same. It also avers that the change did not affect any other Communication
Maintainers and, with respect to the changing of rest days, the Agreement is
silent. In summary, it argues that its actions herein did not create a new
position and the occupant is entitled to stay on the job on which he had bid.
At the outset, the Board notes that, except for two awards, the Carrier
failed to submit supporting documentation for its assertions and a number of
the contentions submitted to the Board were not made on the property and,
therefore, not properly before us. On the particular facts and circumstances
of the evidence properly before us, we do not set aside that reasonable
arguments may lend support to the construction of the contract as asserted by
the Carrier. However, when the provisions of the parties' Agreement most
applicable to the facts and circumstances of this dispute are construed as a
whole, with particular weight to the Seniority provision, Rule 15, and the
Exhibit "R", with respect to bulletins issued in the past, the Organization's
contentions are given substance and the claim is sustained on the merits.
However, with respect to the monetary relief requested, we have reviewed
numerous awards and we find with those holding that, absent a clearly
identified Claimant(s), compensation is not in order here and we so hold.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 20th day of November 1985.