Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10718
SECOND DIVISION Docket No. 9752
2-C&NW-C14-' 86
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( Brotherhood Railway Carmen of the United
Parties to Dispute: ( States and Canada
( Chicago and North Western Transportation
Company
Dispute: Claim of Employes:
1. Carman Larry Lopez was deprived of his contractual rights when
he was not given the privilege to transfer to Savannah - St.
Joseph, Missouri on September 26, 1980 and October 6, 1980,
in compliance with Rule 26 of the controlling agreement.
2. That the Chicago and North Western Transportation Company be
ordered to make whole Carman Larry Lopez, restore him to Carrier
service with all seniority rights, holidays, sick leave and
all other benefits that are a condition of employment unimpaired,
and be compensated for all time lost plus 6% annual interest
on all such lost wages; and additionally, reimbursement for
all losses sustained account loss of coverage under health
and welfare and life insurance agreements during the time he
has been unjustly held out of service since being denied Carman's
position at Savannah, Missouri."
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 and 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 were given due notice of hearing thereon.
The Claimant, Chairman Larry Lopez, was assigned to job 021 at Kansas
City, Missouri. On September 29, 1980 he was informed that due to a reduction
of forces, he would be furloughed at the end of his shift on October 6,
1980.
The Organization contends that Mr. Lopez submitted a letter dated September
29, 1980 and another dated October 6, 1980 to the Division General Foreman
at Kansas City, which read as follows:
Form 1 Award No. 10718
Page 2 Docket No. 9752
2-C&NW-CM-'86
9-29-80
"Att
D. J. Weber
Request for transfer to St. Joe or Savannah per Rule #26.
Larry Lopez."
10-6-80
Att:
Carforman
Request for transfer to Savannah or? St. Joe for vacancy under Rule 1126.
Larry Lopez."
The Organization contends that Mr. Lopez's contractual rights under
Rule 26 were violated by the Carrier when it selected a junior employee,
Mr. C. F. Christiansen, to transfer to Savannah/St. Joseph, Missouri,
causing Mr. Lopez to be furloughed rather than retain his employment. The
Organization contends that the only place the bulletin was posted was in a
locked oil shed in St. Joseph, Missouri.
The Carrier contends that on October 6, 1980 the Car Foreman at Kansas
City received two notes from Mr. Lopez, both dated that day. The first
note requested a transfer to Savannah (Missouri) or "St. Joe" (St. Joseph,
Missouri). The second note was a bid on Job 004 at Savannah under Bulletin
No. 080. The Carrier contends that it never received a request to transfer
from Mr. Lopez dated 9/29/80. The Carrier contends that Job No. 003 was
properly advertised by Bulletin No. 101 dated September 24, 1980 and expiring
September 28, 1980, and that this position was awarded to Carmen Christensen,
a Carman junior to Mr. Lopez, who was also furloughed at Kansas City. The
Carrier submitted a copy of Mr. Christensen's request to transfer which
was dated September 28, 1980. The Carrier states that it awarded the position
to Mr. Christensen on October 1, 1980 and that it did not receive any
requests from Mr. Lopez until October 6, 1980. The Carrier contends that
the bulletins in question were posted at the fueling pump house facility
and on the bulletin board at the office in St. Joseph, Missouri by General
Foreman Weber.
The Organization contends that Mr. Lopez sent a request to Mr. Weber
on 9/29/80 (which was after the expiration of Bulletin No. 101), the Carrier
disagrees with this
contention and
states that no request was made to the
Carrier until October 6, 1980. The Organization contends that the bulletins
Form 1 Award No. 10718
Page 3 Docket No. 9752
2-C&NW-CM-'86
were posted~in a locked oil shed in St. Joseph, the Carrier contends that the
bulletins were posted at the fueling pump house facility and on the bulletin
board at the office in St. Joseph. From the record before this Board we cannot
resolve these differing assertions of fact; and since the Organization, the party
with the burden of proof, has not presented evidence to this Board which would
persuade the Board that its version of the disputed facts is the true
version, we are compelled to consider the case based solely on the facts of
record not in dispute. Both the Carrier and the Organization agree that a
request was made by Mr. Lopez on October 6, 1980. This request was not
timely as Mr. Christiansen had filed his request prior to the expiration
of the bulletin on September 28, 1980 and was awarded the position on
October 1, 1980. We are therefore compelled to deny this claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy ~ver - Executive Secretary
Dated at Chicago, (/Illinois this 29th day of January 1986.