Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10880
SECOND DIVISION Docket No. 10195
2-C&NW-CM-'86
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Carman Harlan Blount was deprived of his contractual right to
be awarded Job 004 at Missouri Valley, Iowa, to a Carman from
Council Bluffs effective December 21, 1981.
2. The Chicago and North Western Transportation Company violated
Article V 1(a) of the August 21, 1954 Agreement when it failed
to respond to claim dated January 20, 1982, within the sixty (60)
day time limit.
3. That the Chicago and North Western Transportation Company be
ordered to award Job 004 to Carman Harlan Blount, and make him
whole for all overtime earned on the 400 truck since it was
assigned to Missouri Valley, dating from December 21, 1981.
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.
On November 21, 1981, Claimant Harlan Blount was furloughed from
Carrier's Missouri Valley facilities. At this time, Claimant was the senior
laid-off Carman at this point. Subsequent to his layoff, Carman Blount filled.
a vacancy at Carrier's Des Moines, Iowa Yard approximately 150 miles from his
furlough point. On the same date as Claimant's furlough, the CNW bulletined
Job 004, Freight Car Repairman-Welder, which was a position to be occupied at
Missouri Valley.
Form 1 Award No. 10880
Page 3 Docket No. 10195
2-C&NW-CM-'86
Carrier also asserts that the Controlling Agreement allows Management
to select qualified bidders for bulletined positions. According to Carrier,
Claimant was not and did not attempt to become a qualified Welder, nor did he
obtain the requisite chauffeur's license, thus leaving Carrier no choice but
to award the Missouri Valley vacancy to the more qualified, albeit junior,
Carman.
Carrier's argument on the merits is appealing. The contract and
Board precedent recognize a Management right to fill bulletined positions with
junior qualified persons, provided that those employes who are more senior are
given a fair trial. However, this Board need not consider the merits of this
dispute until we determine compliance with the procedural requirements of the
August 21, 1954 Agreement.
An analysis of the procedural aspect of this dispute must begin with
an examination of whether the Board in its appellate capacity can rightfully
consider Carrier's Exhibit A, the disputed letter of declination. The record
shows that the Local Chairman on April 16, 1982, and the General Chairman on
the dates of April 27, 1982, and January 11, 1983, both called Management's
attention to Carrier's time limit violation. The Board finds Carrier could
have rectified the alleged omission by simply supplying Organization with a
copy of the Division Manager's letter while this dispute was still on the
property. For whatever reason, Carrier did not provide the critical letter
until it became an attachment to Carrier's Submission. It is well established
that this Board cannot consider new evidence which was not developed on the
property (see Awards Nos. 7264, 8197, 8303, 8450, and 9063). As a result,
this Board must rule that Carrier's Exhibit A is inadmissible and must further
find that Carrier violated the time limit embodied in the August 21, 1954
Agreement.
Since the Carrier failed in its bargained-for procedural requirements, the Board declines to analyze the merits of the case. We need only at
this point to determine the remedy.
The Claim as presented requests relief in the form of awarding
Claimant not only Job 004, but also to make him whole for all overtime worked
on the 400 Truck. Article V 1(a) of the 1954 Agreement stipulated the remedy
for non-compliance in such cases, thus allowing the Claim as presented.
However, since Job 004 was abolished after one (1) month, there is no job for
Claimant, if qualified, to occupy. This Board has no power to create
positions.
Consequently, Claimant is awarded all overtime payments accrued to
the operator of the 400 Truck between the dates of December 21, 1981 to
January 18, 1982.