Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11190
SECOND DIVISION Docket No. 10077
2-SP-SMW-187
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
(Sheet Metal Workers' International Association
Parties to Dispute:
(Southern Pacific Transportation Company
(Western Lines)
Dispute: Claim of Employes:
1) That the Carrier arbitrarily changed the seniority date of
claimant W. L. Powell from April 25, 1977 to April 1, 1978 on the roster of
the Sheet Metal Workers craft at Sacramento, California on October 28, 1981
and moved his position on the roster from number 52 to number 65, in violation
of his contractual and constitutional rights.
2) That the Carrier restore claimants proper seniority date of April
25, 1977 on roster of the Sheet Metal Workers Craft at Sacramento, California.
3) That claimant be made whole for wages and benefits lost, if any,
due to being improperly furloughed and returned to work improperly as result
of the change of seniority date by the Carrier.
4) That the Carrier has denied claimant his rightfully earned number
of days of vacation as indicated by claimant exhibit R, as result the
Carrier's disallowance for time served by claimant in Air National Guard in
violation of his contractual and constitutional rights.
5) That claimant be made whole for earned vacation denied by the
Carrier as indicated in claimant exhibit R.
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. 11190
Page 2 Do2ksP-SMW-t8~77
Claimant was hired as an Apprentice Sheet Metal Worker on January 20,
1972, and holds seniority as a Journeyman Sheet Metal Worker at Carrier's
Sacramento, California Heavy Maintenance Plant. The precise date of Claimant's seniority on the Seniority Roster of the Sheet Metal Workers Craft at
the Sacramento facility is the particular issue in dispute in this case.
According to the record, concurrent with his work as a Sheet Metal
Worker Apprentice, Claimant served in the California National Guard Reserve
from 1973 to 1977.
On April 1, 1978, Claimant had completed 1,011 days of the then
required 1,040 days of apprenticeship under Rule 42 of the Motive Power and
Car Department Agreement. The date of April 1, 1978, is significant to the
instant dispute because the parties had previously signed a new Memorandum of
Agreement for Apprenticeship effective that date. The purpose of the new
Agreement, inter a1ia, was to reduce the apprenticeship qualifying time from
1,040 days to 732 days.
Pursuant to the implementation of the new Apprenticeship Agreement,
twenty-two (22) incumbent~Sheet Metal Worker Apprentices (including Claimant),
who had started their apprenticeship training prior to April 1, 1978, were
accorded Sheet Metal Worker seniority as of that date, and were listed on the
seniority list in numerical order according to their relative standing in the
Apprenticeship Training Program based upon the respective number of days they
had completed up to that date. Seven (7) of the twenty-two Apprentices
(including Claimant) had already attained in excess of 732 days' training and
they were upgraded to Journeymen Sheet Metal Workers and listed as such on the
July 1, 1978 Seniority Roster. Claimant's seniority on the July 1, 1978 Roster, however, was listed as April 25, 1977, rather than April 1, 1978. The
remaining fifteen (15) incumbent Apprentices were listed on subsequent Seniority Rosters as each acquired the requisite 732 days of apprenticeship
training.
As noted previously hereinabove, as of April 1, 1978, Claimant had
served 1,011 days toward the completion of his apprenticeship, and said amount
was the greatest number of days completed by any Sheet Metal Worker at that
time at the Sacramento facility. In addition to the July 1, 1978 Seniority
Roster erroneously listing Claimant's Sheet Metal Worker's seniority date as
being April 25, 1977, Claimant's seniority date was similarly listed, again
erroneously, on the three (3) succeeding Seniority Rosters for 1979, 1980 and
1981.
In a letter dated October 28, 1981, Carrier's Sacramento Works
Manager notified Organization's Local Chairman as follows:
Form 1
Page 3
unilateral
lated Rule
reads as
Award No. 11190
Docket No. 10077
2-SP-SMW-'87
"Per our conference of 2:00 p.m., Tuesday,
October 27, 1981, the following information is
being furnished:
Sheet Metal Worker William L. Powell, SSA
#553-82-2861-9
Personal record has been reviewed and time
for reserve military service towards his apprenticeship has been disallowed and he has been
assigned a seniority date of 4-1-78 instead of the
erroneous date assigned on the 1981 current Sheet
Metal Workers roster of 4-25-77. Mr. Powell's
date and seniority position will be changed and
new roster will reflect the change from No. 052
with date of 4-25-77 to No. 065 with date of
4-1-78. New rosters for the Sheet Metal craft
will be issued as soon as possible."
On that same day, organization filed a Claim alleging that Carrier's
1 revision of the then current July 1, 1981, Seniority Roster vio-
e 32 of the Controlling Agreement. Said Rule, in pertinent part
follows:
"Seniority rosters will be revised as of July
1st, each year, and posted in places accesible
(sic) to employes affected; list of additions,
eliminations, and corrections will be posted as of
January 1st each year. Errors in any roster or
list to which attention is called within sixty
(60) days from date of posting, will be corrected.
The General Chairman and the Local Chairman will
each be furnished three (3) copies of such rosters
and lists, pertaining to their craft."
Organization's basic contention in this dispute is that Claimant's
seniority date was properly computed when he was upgraded to Journeyman as per
the April 1, 1978 Apprenticeship Agreement. According to Organization,
Claimant was contractually entitled to a seniority date of April 25, 1977,
which was adjusted as per Title 38, Chapter 43 - Veterans Re-Employment Rights
to reflect Claimant's service with the California Air National Guard during
the years of 1973 through 1977.
Additionally, organization further argues that Carrier cannot arbitrarily revise Claimant's seniority date more than four (4) years after it was
originally assigned. As support for this position, Organization cites Second
Division Awards 2910, 7414, 7627 and Third Division Awards 12297, 13844 and
14862 which allegedly denied challenges to seniority roster standings which,
similar to the instant case, were presented years after the original posting. Still yet further on this same point, Organization also cites Edwards v
Form 1
Page 4
Award No. 11190
Docket No. 10077
2-SP-SMW-'87
Clinchfield Railroad, 408 F. 2d 5 (1969 CA S) which held that for reemployment
purposes, returning veterans are
"...
entitled to be restored, after resuming
employment;
...
to the position which he would have held if he had remained
continuously in civilian employment
...."
Finally, Organization further cites as relevant herein Paragraph 3 of
the Controlling Memorandum of Agreement dated September 16, 1946, and Section
D(c) of the Memorandum of Agreement for Apprenticeships, effective April 1,
1978. Said provisions state as follows:
"Memorandum of Agreement (September 16, 1946)
Paragraph 3:
Upon completing the number of service days or
service years remaining to be worked to conclude
their apprenticeship at time of entry into
service of the United States, as referred to
herein, either as helper apprentices or while
upgraded to mechanics classification, employes
covered by this Memorandum of Agreement will be
allowed the mechanics seniority date they would
have established if they had remained in the
service of this company as apprentices, and will
be placed on the respective mechanics seniority
roster accordingly."
"Memorandum of Agreement for Apprenticeships
(April 1, 1978)
D(c) - Incumbent apprentices who started their
apprenticeship training prior to the effective
date of this Memorandum of Agreement shall have
the remainder of their training changed to conform as nearly as practical to this Memorandum of
Agreement. Apprentices who are so accelerated
and have or will attain the requisite number of
days specified herein prior to or following the
effective date of this Memorandum of Agreement,
and the overall length of his training shall not
exceed the time specified in Section B(b) if it
has not already done so. Any apprentices who are
so accelerated and have or will attain the requisite number of days training specified herein
prior to or following the effective date of this
Memorandum of Agreement will be accorded a seniority as journeyman mechanic on their respective
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Form 1
Page 5
Award No. 11190
Docket No. 10077
2-SP-SMW-'87
seniority rosters in accordance with the provisions of Section D(b), but in no event will such
seniority date be prior to the effective date of
this Memorandum of Agreement. Such apprentices
will, however, be accorded a seniority date on
their respective seniority rosters in the order of
their relative standing in the training program
determined by the number of days completed. Seniority date will reflect time lost from this
training program in military service, on jury duty
and/or paid vacation_"
Carrier argues that Claimant's April 25, 1977 seniority date was the
result of a clerical error and that Claimant was subject to that portion of
Section D(c) of the April 1, 1978 Memorandum of Agreement for Apprenticeships,
cited hereinabove, which provides that
"...
but in no event will such seniority date be prior to the effective date of this Memorandum of Agreement."
Continuing, Carrier further challenges Organization's contentions by
arguing that Claimant's National Guard time cannot be counted toward seniority
because some of his duty time occyrred concurrently while he was furloughed
from his employment with Carrier. Moreover, Carrier also contends that the
Controlling Agreement, as revised by the April 1, 1978 Memorandum, contains no
provisions for considering National Guard training as apprenticeship qualifying time. According to Carrier, the April 1, 1978 Memorandum supersedes the
September 16, 1946 Agreement and its subsequent Interpretation dated December
9, 1949. (Third Division Awards 3813 and 11331.)
Carrier, in its argumentation, further reads Rule 32 of the Agreement
as imposing a time limit on employe challenges to seniority ranking while
retaining Management's right to revise and correct seniority on an annual
basis. As support for this theory, Carrier cites Second Division Award No.
7414 which, interpeting a rule similar to Rule 32 involved herein, concluded
in pertinent part as follows:
l~ Beginning with his initial employment on January 20, 1972, Claimant
was "laid-off" or "furloughed" for the following periods:
April 7, 1972 to May 30, 1972;
July 6, 1972 to October 4, 1972; and
May 9, 1975 to November 20, 1975.
During the period of his employment, which is significant in this
dispute, Claimant served in the California National Guard Reserve during the
following periods:
November 5, 1972 to May 25, 1973;
July 9, 1973 to July 20, 1973;
August 17, 1974 to August 31, 1974;
August 11, 1975 to November 6, 1975; and
July 9, 1977 to July 23, 1977.
Form 1 Award No. 11190
Page 6 Docket No. 10077
2-SP-SMW-'87
"The applicable and controlling part of Rule
23, Seniority, reads as follows:
'The seniority lists will be prepared from the
Company's record as of January 1st of each year
for each craft and subdivision thereof and will be
posted and open for protest for a period of sixty
(60) days after the posting of each roster. Committees will be furnished with copies.'
Rule 23, it may be noted, provides that the
list will be revised each year and that, if not
protested in 60 days, it shall be deemed permanent. This surface contradiction, providing for
flexibility and rigidity at one and the same time,
can be resolved and harmonized if we bear in mind
the objectives of the parties. The seniority
roster is compiled to have an unimpeachable source
of authority upon which to base decisions in which
seniority may be involved. This authority must be
established in advance if quarreling and bickering
over relative standing is to be avoided at the
time it is called into use. The parties had two
major concerns in the establishment of the roster.
First there had to be recognition that the composition of any work force varies from time to
time as old employes drop out or transfer to other
jobs and as new employes are added. Management
must make periodic revisions if the list is to
reflect these inevitable changes. The parties
must also have foreseen that in making revisions
there would always be the possibility of error.
This possibility was their second concern. It was
solved by giving the employes limited time in
which to call attention to an error and have it
corrected. Thus the needs of Management to revise
and the employes to correct having been provided
for, and both having been exercised, the list was
then to become permanent.
The permanency contemplated by the parties
could not mean that Management might not thereafter revise it, for this would be a direct
contradiction of the provision calling for yearly
revision. It was to be, however, permanent in
other respects, and it precludes the right of an
employe to enter a protest once the initial
time limit of 60 days has elapsed."
(Carrier's emphasis)
Form 1 Award No. 11190
Page 7 Docket No. 10077
2-SP-SMW-'87
Carrier also argues that seniority rights are derived from the
Collective Bargaining Agreement and that Management i$ powerless
"...
to take
away from any employe seniority rights to which he is entitled under the
Memorandum of Agreement, or to give any employe seniority rights which he has
not earned under the agreement" (Second
Division
Award 7077).
Finally, Carrier contends that it is not bound by the erroneous acts
of subordinate officials when, upon discovery by higher authority, Management
promptly terminates the practice (First
Division
Award 15485; Second
Division
Awards 3782 and 9049; and Third Division Awards 1804, 21184 and 21857).
The Board has carefully read, studied and considered the complete
record in this controversy, and finds that Organization has presented a valid
Claim which has not been sufficiently rebutted by Carrier. In support for the
foregoing determination, we note that Carrier was unable to adequately explain
why, after four (4) years and after four (4) separate opportunities, it failed
to correct what Management characterized, for lack of a better explanation, as
a "clerical error." While Claimant may fall within the dictates of Section
D(c) of the Memorandum of Agreement for Apprenticeships, effective April 1,
1978, which if applicable, ordinarily would establish his seniority date as
April 1, 1978, the fact remains that Carrier sat on its right of revision for
more than four (4) years. Had Carrier revised Claimant's seniority date in a
more timely fashion, our decision might have been more favorably disposed to
Carrier's position. However, this Division has consistently maintained a
reluctance to alter Seniority Rosters after a discovery of errors) which
has/have existed for many years. This policy has been predicated upon the
belief that an employment right, such as seniority, deserves certainty and
predictability in its treatment on the part of Management. Moreover, in
countless opposite sets of circumstances, we have consistently refused to
alter seniority dates when employes have failed to timely challenge erroneous
seniority rankings.
While Rule 32 permits Carrier the right to revision, it also imposes
upon Carrier the mutual obligation of effectuating timely challenges to the
Seniority Roster's accuracy.
By virtue of this ruling, we certainly are not holding Carrier to the
sixty (60) day time limit requirement imposed upon employes; rather, we are
holding that Carrier, by virtue of the doctrine of laches, has waived its
right to change Claimant's seniority date four (4) years after originally
determining said date to be April 25, 1977, rather than April 1, 1978. Claimant enjoyed the certainty and predictability of his 1977 seniority date for
over four (4) years, and, consequently, the Board is reluctant to disturb the
Seniority Roster's original rankings for no better reason than Carrier's
alleged "clerical error."
Form 1 Award No. 11190
Page 8 Docket No. 10077
2-SP-SMW-'87
A W A R D
Claim sustained in its entirety.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
O.Z., ~
Nancy ~l~er - Executive Secretary
Dated at Chicago,(/Illinois, this 4th day of March 1987.
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