Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11351
SECOND DIVISION Docket No. 11136
2-CMSTP&P-CM-'87
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Chicago, Milwaukee, St. Paul and Pacific Railroad
( Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
violated the controlling Agreement, Rule 27(d) and 31(a), when they failed to
recall Carmen A. J. Fenner, R. D. Peaselee, F. Skidan and D. Wierzba back to
work in seniority order, and instead recalled four junior carmen.
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
be ordered to compensate each of the named claimants in the amount of eight
(8) hours pay for each day beginning with the date of September 13, 1984 until
such time as the Carrier ceases to violate the Agreement.
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 September 13, 1984, the Carrier recalled to service Carmen Susa,
Ciofani, Christensen and Potrykus, all of whom are junior in seniority to the
named Claimants. The instant Claim alleges that, in so doing, Carrier violated Rules 27(d) and 31(a) of the controlling Agreement, which state as follows:
"RULE 27 - Reduction In Force
(d) In the restoration of forces, employes will
be restored to service in accordance with their
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seniority and shall be returned to their former posi
tion if possible. Employes failing to return to ser
vice within fifteen (15) days after date of notice to
their last known address, unless an extension has been
granted by the supervisor in charge and the local com
mittee, will forfeit all seniority rights. The local
committee will be furnished with a list of employes to
be restored to service.
RULE 31 - Seniority
(a) Seniority of employes in each craft and subdivision thereof covered by this agreement shall be
confined to the point employed and begins at the time
of employe's pay starts at the point and in the craft
or subdivision thereof in which employed. The seniority list will be open to inspection and copy will be
furnished the local committee and General Chairman."
The Organization maintains that while the Carrier has the unquestioned right to direct its work forces so as to operate efficiently, and to have
qualified employes perform work needed to be done, it must do so within the
confines of the Agreement. The Organization points out that on a visit to the
shop on September 24, 1984, it: was observed by the General Chairman over a
period of aproximately 2 1/2 hours, that not one of the nineteen employes in
the shop performed welding work. Moreover, despite the fact that Carrier
claims it needs welders to run an efficient operation, there were never more
than four employes welding during a period of four hours when the parties made
a "joint check" of the premises. To the Organization, these observations support its Claim, and demonstrates that Carrier has shown complete disregard for
the seniority rights of the Claimants, who have worked for Carrier for as many
as 35 years.
Carrier raised several arguments before this Board which were not
discussed during the handling of this Claim on the property, and therefore
will not be considered here. However, its basis contention, we believe, is
meritorious and requires that this Claim be denied. That is, Carrier has the
prerogative and right to assign work to qualified personnel, subject to its
contractual obligations. See Second Division Award No. 2916. In the instant
dispute, Carrier exercised its managerial discretion that there was a need to
add four Carman welder positions at Milwaukee Shops in order to complete
special work projects. From the record before us, it appears that Carrier
made an effort to train and educate Carmen as welders in order to prepare the
workforce for the changing job requirements as the predominant nature of the
work shifted. Claimants did not avail themselves of the opportunity.
We do not view the Organization's observations of the shop as determinative of this matter. Given the limited amount of time spent in observing
the work performed, this Board can hardly conclude that there is no welding
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work or that welding work has not been performed in the past and may be performed again in the future. We find that Carrier's actions were not in violation of Rules 27(d) nor 31(a). Carrier was required to recall in seniority
order only those employees who possessed the necessary fitness and ability to
perform the job. Since Claimants undisputedly did not possess the requisite
welding skills, Carrier properly recalled the service junior employes in
seniority order who did possess these skills. Accordingly, we will rule to
deny the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J fiver - Executive Secretary
Dated at Chicago, Illinois this 30th day of September 1987.