Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11545
SECOND DIVISION Docket No. 11213
88-2-86-2-17
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(Norfolk & Western Railway Company
STATEMENT OF CLAIM:
1. That the Norfolk & Western Railway Company violated Rule No. 28 of
the controlling current Agreement when on/or around July 26, 1984, Carrier
filled a vacancy at Weller Yard, Grundy, Virginia, with a junior apprentice.
2. That the Norfolk & Western Railway Company be ordered to give
Carman Apprentice Kline the preference to either go to Weller Yard and be paid
for all time he would have made had he been given preference in seniority
order and that he be paid all time due till the dispute is settled. Further,
that Carman Apprentices E. M. Kline, P. C. Wright, J. D. Cobb, R. L. Cook, J.
S. Francis, G. M. Roberts, E. M. Swafford, D. Brown and S. E. Estepp be
granted a carman's seniority date back dated two years and two days and that
they be recalled as carmen when needed.
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 Board observes that the Carrier has presented a number of firsttime arguments and contentions in its submission to this forum which were not
raised on the property. We have not considered these in our deliberations.
Turning to the essential matters properly raised on the property, the
Carrier stated that a vacancy for an Apprentice Carman existed at Weller Yard,,
Grundy, Virginia. It further stated that Carman Apprentice R. C. Ratliff,
because he had expressed a desire to work anywhere, had been assigned to that
vacancy on July 26, 1984. In this latter respect, it contends that the Organization Representative had told the Carrier in June 1984 that "none of his men
would go anywhere from Williamson, West Virginia to work."
Form 1 Award No. 11545
Page 2 Docket No. 11213
88-2-86-2-17
The Organization, in challenging the Carrier's assignment of Carman
Apprentice Ratliff, mainly asserts that the Carrier failed to comply with the
part of Rule 28 which reads:
"When men are needed at a point and there are no
furloughed men available at that point, furloughed
men at the nearest point or points will be given
preference in transferring to the point at which
men are needed, Seniority to govern."
In the instant case, it essentially argues that there were nine (9) senior
employees that should have been given an opportunity to have access to the job
at issue. It also relies upon Second Division Award No. 6846 between the same
parties as to its construction of Rule 28 and to support its view that seniority will prevail. With respect to the Carrier's contention concerning the
availability of Carmen stationed at Williamson, the Organization denies that
its Representative made such a statement.
The Board agrees with the Organization in this matter based on the
evidence which the parties presented on the property. Essentially, the Carrier never substantively refuted the substance of the Organization's contentions, namely that Rule 28 was applicable to the facts of the dispute, i.e. furloughed men at the nearest point will be given preference based on seniority.
Turning to the remedy requested, we do not agree with the Organization on the basis of the record developed on the property. The Carman Apprentice was first out and, while on the property record is not specific on this
point, if anyone was harmed in this matter, it was the Carman Apprentice.
Accordingly, he is to be compensated for any movies he would have received had
he been properly placed on July 26, 1984. Compensation is awarded for the
same period that Ratliff was employed, less any movies received by the Carman
Apprentice during that same period, if employed by the Carrier. The on-theproperty record is not sufficiently clear to make a holding with respect to
seniority dates. If considered necessary by the parties, seniority dates may
be adjusted pursuant to their normal Agreement procedure.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _
,o
e.
Nancy ,y. ver - Executive ecretary
Dated at Chicago, Illinois, this 31st day of August 1988.