Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10935
SECOND DIVISION Docket No. 10232
2-S00-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:
(Soo Line Railroad Company
Dispute: Claim of Employes:
1. That the Soo Line Railroad Company violated Rules 15 and 27 of
the Shop Crafts Agreement when they failed to bulletin the A.A.R. write-up
position, which was a day shift position with Saturday and Sunday as rest
days, when Carman H. Wodarck vacated the position, due to retirement.
2. That the Soo Line Railroad Company be ordered to compensate Louis
Schweizer eight (8) hours for each Thursday and Friday he is forced to take as
rest days and eight (8) hours at time and one-half for each Saturday and
double time for each Sunday he is forced to work, effective November 4, 1981,
and continuing until claim is settled, when the Soo Line failed to honor
Carman Schweizer's seniority when he applied for the position, and the Soo
Line Railroad Company gave the position to a Carman with less seniority.
3. The Soo Line Railroad Company again during the course of handling
this dispute violated Rule 15, when they allowed Carman Granville and Carman
Dievney, both holding A.A.R. write-up positions to exchange their rest days,
without posting a bulletin, which again denied Carman Schweizer his seniority
to bid on a position.
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.
Form 1 Award
No.
10935
Page 2 Docket
No.
10232
2-S00-CM-'86
On November 3, 1981, Carman H. Wodarck retired from a first shift
position with Saturday and Sunday rest days at the Soo Line's Shoreham Shops
at Minneapolis, Minnesota. Mr. Wodarck's duties, in part, included performing
A.A.R. write-up work when needed. Other Carmen at this point also performed
this task, in addition to their other assignments, when required. Due to the
vacancy on the shift which was caused by Mr. Wodarck's retirement, Carman D.
Granville was moved to the position with Saturday and Sunday off from his
previous assignment which entailed a work week of Tuesday through Saturday.
Mr. Granville's seniority date was September 23, 1970. At the time of the
transfer, Mr. Granville also performed A.A.R. billing as part of his previous
job duties. Claimant, Mr. Schweizer, at the time of the dispute, was working
the second shift in the yard, with Thursdays and Fridays off; and his
seniority date was November 17, 1973.
The Organization disputes the Carrier's failure to bulletin the first
shift write-up position when said position was vacated by the retiring Carman.
The Organization, in support of its basic contention, argues that Rules 15 and
27 of the Current Shop Craft Agreement requires Carrier to advertise any
vacancy, and that Carrier does in fact bulletin A.A.R. write-up positions at
other points throughout the system.
Rules 15 and 27, cited by the Organization herein, are typical Carmen
Bulletining Rules which are commonly found in a majority of other railroads'
Shop Craft Agreements.
The Carrier, in the instant case, pleads past practice at this point,
arguing that Carman duties at Shoreham Shops are essentially indistinguishable, except for rest days; and that many Carmen perform A.A.R. billing.
Therefore, according to the Carrier, since there was no separate and distinct
vacancy at this point, the Carrier was not contractually required to advertise
the disputed vacancy. The Carrier further substantiates its position by
identifying thirteen (13) Carmen at the Carrier's Shoreham Shops who, for the
last 40 years, have performed write-up work without bulletin; and according to
Carrier, none of these instances have been grieved either by the affected
employes or by the Union. The Organization, in counter point to the Carrier's
past practice argument, contends that ample Board precedent establishes that
where contractual language is clear and unambiguous, as is the case in the
instant dispute, any past practice must be rejected.
The Board has carefully read, studied and considered the complete
record in this dispute. While it is clear that the Organization has correctly
stated Second Division arbitral precedent regarding the basic interpretive
principle involved herein, and may, in fact, have proved a technical violation
of Agreement as well, Claimant has not suffered any loss in this matter and
is thus not deserving of the remedy as claimed. According to the record, Mr.
Granville was the most senior Carman and was awarded the disputed vacancy.
The record also shows, however, that Claimant, with a seniority date of
November 17, 1973, some three (3) years and two (2) months junior to Mr. Granville, could not have successfully bid on the position even if said position
was bulletined. For this reason, the dispute must be resolved in favor of
Carrier's position and the Board does not have to reach a decision on the
merit of the case.
Form 1 Award No. 10935
Page 3 Docket No. 10232
2-S00-CM-'86
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J ~Ver - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of July 1986.