Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11427
SECOND DIVISION Docket No. 10665
88-2-84-2-163
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM:
1. That the Norfolk and Western Railway Company violated Rules 1, 7,
8 and associated Rules of the controlling agreement, when, beginning on
October 20, 1982, Carmen from Pine Valley, Ohio were assigned by the harrier
to seven (7) first shift positions at Mingo Junction, Ohio where Carmen were
furloughed.
2. That the Norfolk and Western Railway Company be ordered to
compensate Carmen 0. S. Mays, B. J. Cardwell, A. W. Trouten, R. T. Mallory and
Ugraded Carmen A. Viland, R. F. DiCarlo and K. E. Barcus for eight (8) hours
each for each day worked by the Pine Valley, Ohio Carmen working at Mingo
Junction, Ohio, beginning October 20, 1982 through January 30, 1983; and
Carmen J. D. Sedon, G. R. Barcus, J. C. O'Brien, P. E. Kensicki, all of whom
were furloughed on January 31, 1983, along with 0. S. Mays, B. J. Cardwell and
A. W. Trouten, for eight (8) hours each for each day worked by the Pine
Valley, Ohio Carmen working at Mingo Junction, Ohio, beginning January 31,
1983 and continuing until the contract violation is rectified, at Mingo
Junction, Ohio.
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 were given due notice of hearing thereon.
On July 21, 1982, Carrier served notice on the organization of its
intention to transfer several Carmen with their work from Pine Valley, Ohio,
to Mingo Junction, Ohio, a distance of eighteen miles. The organization
immediately challenged the type of notice given as well as other aspects of
the proposed transfer. Notwithstanding these challenges, Carrier, without an
implementing agreement, made the transfer effective October 20, 1982. The
Form 1 Award No. 11427
Page 2 Docket No. 10665
88-2-84-2-163
Organization immediately filed two claims. One contended the Merger Protection Agreement was violated because employees and work were transferred from
one location to another without an implementing agreement, and the other
contended the Working Agreement point seniority provision was violated when
Pine Valley Carmen were allowed to work at Mingo Junction.
The Merger Protection Agreement claim was progressed to the forum
holding exclusive jurisdiction to hear such matters, SBA No. 920. On December
10, 1984, that Board issued an Award in favor of the Organization. The other
claim was progressed to our Board.
Carrier challenges our jurisdiction to consider the seniority claim
on several grounds. It contends that it is a "dual claim" to the case progressed to SBA No. 920. It also argues the Merger Protection Agreement
supersedes the Working Agreement in such transactions and that the dispute
resolution procedures of the Protection Agreement are mandatory and must be
utilized for settlement of all grievances connected therewith.
We agree with both points. While two separate and distinct claims
were filed in this matter, the precipitating act was a single notice served
under the Merger Protection Agreement advising the Organization and the Carmen
affected of an impending transfer of work and positions from one location to
another. The Organization to our knowledge, never was of the opinion that
such a transfer could not be accomplished under the Merger Protection Agreement. Its basic objection was directed to the type and length of notice
issued and a demand for negotiation of an implementing agreement. The Carrier
had given a sixty day notice arguing that an implementing agreement was not
necessary. The Organization felt that a ninety day notice was necessary and
an implementing agreement was required. These differences were decided in a
lengthy and detailed opinion by SBA No. 920.
It was the notice of transfer given under the Merger Protection
Agreement and the transfer itself that impacted on seniority rights and work
entitlements of Mingo Junction Carmen. The appropriateness of a transfer of
employees and work under the Merger Protection Agreement and the affect of
such transfers on matters of seniority at the new location are interwoven and
cannot be divided into separate claims.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
/,,
Nancy J rer - Executive Secretary
Dated at Chicago, Illinois, this 24th day of February 1988.