Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11134
SECOND DIVISION Docket No. 11172--I
2-IOWA-I-CM-'87
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(Kermit D. Alexander
Parties to Dispute:
(Iowa Interstate Railroad
Dispute: Claim of Employes:
violation of Section 105 of the Rock Island Railroad Transition and
Employee Assistence (sic) Act (45 U.S.C. 1004) AND/OR Section 703 and/or 704
of the Regional Railroad Reorganization Act, in that the Iowa Interstate
Railroad hired four (4) carmen, all former Rock Island Lines employees, that
were hired by other carriers denieing (sic) me gamefull (sic) employment with
same railroad.
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.
The Claimant, a former Carman with the Chicago, Rock Island, and
Pacific Railroad, was in service with that Carrier from September 16, 1954
through March 31, 1980, at which time the Rock Island ceased operations. The
Carrier, Iowa Interstate Railroad, is operating on lines formerly operated by
the Rock Island Railroad and, subsequently, the Iowa Railroad Company.
The Claimant argued the Carrier had violated Section 105 of the Rock
Island Railroad Transition and Employee Assistance Act (45 U.S.C. 1004) and/or
Section 703 and/or 704 of the Regional Railroad Reorganizational Act. The
Claimant stated he has met the requirements for the right of first hire and
yet the Carrier hired four Carmen who had been employed by other Carriers
prior to their employment with Iowa Interstate Railroad. The Carrier commenced operations on November 1, 1984, and had placed ads in local newspapers
in the month of September, 1984, for new employees. In addition the Carrier
gave applications to the employees of the former Iowa Railroad, which was in
bankruptcy proceedings at that time. The Claimant alleged the Carrier did not
Form 1 Award No. 11134
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2-IOWA-I-CM-'87
make use of the Central Register as provided for in the Regional Railroad
Reorganizational Act and that, almost without exception, all former employees
of the Iowa Railroad were hired by the Carrier. The Claimant stated that his
naare appears on the Central Register of available employees, as well as the
job service of Illinois and Iowa. The Claimant states that the four Carmen
alluded to above were hired after employment by railroads other than the
Chicago, Rock Island, and Pacific Railroad; therefore, they gave up their
right of first hire. The Claimant states he has never worked for a subsequent
operation or for any other railroad and, therefore, is in the position of
having the right of first hire. He stated that he is fully qualified for
these jobs and noted he is a certified welder.
The Carrier argued that it started up operations in the Fall of 1984
and initially hired 78 employees. Because of the requirement that the Carrier
be able to commence operations immediately, the Carrier needed to hire fully
experienced personnel who were familiar with the operations of the line.
while the Carrier doubts it was bound by the right to hire statutes cited by
the Claimant, it asserted that it carefully followed the terms and conditions
of those statutes. The Carrier denied that the Claimant has greater rights
than other employees the Carrier hired at this time, and the Carrier would
have rejected the Claimant when comparing his qualifications to those of the
employees that were hired. The Claimant submitted an application to the
Carrier on September 10, 1984. The Carrier considered the Claimant's appli
cation, but he was not offered employment. The Carrier did hire four other
Carmen, all of whom had been involuntarily furloughed from the Rock Island
between September 30, 1979 and April 1, 1984, and they were determined by the
INV
Carrier to be more qualified than the Petitioner. The Claimant was placed on
a waiting list in November, 1984, and has been considered for employment from
time to time. The Claimant's former Supervisor has indicated the Claimant
"needs a great deal of supervision" and has recommended that the Carrier not
hire the Claimant. The Carrier stated that it acted in accordance with the
terms and conditions of the right to hire statutes in that employment by a
successor line gives them the same statutory hiring preference as those who
were furloughed by the Rock Island between 1979 and 1984. Also, the Regional
Railroad Reorganizational Act applies to any employee deprived of employment.
This has been confirmed by the Railroad Retirement Board. The Carrier further
argued that the National Railroad Adjustment Board has no right to grant the
relief suggested by the Claimant in this matter in that such relief is beyond
the scope of the Board's jurisdiction.
Upon complete review of the evidence, the Board finds as follows; the
Railway Labor Act is the Act under which the National Railroad Adjustment
Board operates, and its language is specific and clear with respect to claims.
Claims must be handled in the "usual manner on the property." The purpose for
this procedure is to create a record that would allow this Board an opportun
ity to properly review the merits of the case. In this instance, the Claimant
did not follow the proper procedure and, as a result, there is no appropriate
record for the Board to review. There is much argument in each Submission but
little proof. The Railroad Reorganizational Act incorporates the Railway
Labor Act, which states in pertinent part:
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Page 3
Award No. 11134
Docket No. 11172--I
2-IOWA-I-CM-'87
"(i) The disputes between an employee or group
of employees and the Carrier or Carriers growing
out of grievances or out of the interpretation
or application of agreements concerning rates of
pay, rules, or working conditions, including
cases pending and unadjusted on June 21, 1934,
shall be handled in the usual manner up to and
including the chief operating officer of the
Carrier designated to handle such disputes; but,
failing to reach an adjustment in this manner,
the disputes may be referred by petition of the
parties or by either party to the appropriate
division of the Adjustment Board with a full
statement of facts and all supporting data
bearing upon the disputes."
It is the Claimant that is bringing this matter. It is the Claimant's responsibility to follow the proper procedure. The record shows that, among other
things, a conference was not held on the property, and the Claim was not
advanced as required. Because of this defect, the Board was not given a
complete record on which it can base a reasonable decision; and because of
this procedural defect, the Claimant did not advance his Claim as required by
the statute, and the Board has no alternative but to dismiss the Claim without
ruling on the merits of the case.
A W A R D
Claim dismissed.
Attest.
ZO-40/0'm -
Nancy J00orrver - Executive Secretary
Dated at Chicago, Illinois, this 21st day of January 1987.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division