Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11647
SECOND DIVISION Docket No. 11290
89-2-86-2-124
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. That in violation of the Agreement, the Burlington Northern Railroad capriciously failed to provide Communications Crew Lineman J. V.
Patterson the information necessary for him to place himself on another position after the position he was holding was abolished. As a result, Lineman
Patterson became furloughed while an employee junior to him continued his employment with the Company.
2. Accordingly, the Burlington Northern Railroad should be instructed
to compensate Lineman Patterson in an amount equal to all wages, including
overtime, worked by the junior employee; the Burlington Northern should be
further instructed to make Mr. Patterson whole for all other losses suffered
by him including insurances, paid vacation and so on.
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 April 17, 1985 a Claim was filed on grounds that the Carrier was
in violation of Rules 12 and 22 of the Schedule Agreement. The facts of this
Claim center on the Claimant's contention that a junior lineman working a
temporary assignment was not furloughed until the latter part of March, 1985
whereas the Claimant had been furloughed on March 7, 1985. According to the
Claim, when the Claimant made inquiries at the Chief Engineer's office in
Overland Park, Kansas on the day after his furlough, he was told that there
were "no linemen working who were junior" to himself. The Claim was filed
with the Denver Region Chief Engineer W.H. Ferryman, at the Carrier's offices
in the Executive Tower, 1405 Curtis Street, Denver, Colorado. The Claim was
not answered by the Carrier. On August 20, 1985 a second Claim was filed with
Form 1 Award No. 11647
Page 2 Docket No. 11290
89-2-86-2-124
the Denver Region Chief Engineer, at P.O. Box 17150, 1331 Seventeenth Street,
Denver, Colorado. This second Claim requested forfeiture of earlier Claim
filed on April 17, 1985, because of violation by the Carrier of Rule 29(a) of
the Agreement. This second Claim also included request for supplementary
relief since it "...c(a)me to the attention (of the Organization) that (the
junior electrician cited in the original claim)...was not furloughed on March
26, 1985, as (the Organization) was originally informed." According to this
second Claim the junior Electrician continued working while the Claimant was
on furlough. The Claimant was recalled to service on July 15, 1985. Relief
requested for the first Claim was, therefore, for pay from March 7-27, 1985;
relief requested for the second Claim was for pay from March 28-July 14, 1985.
On September 11,.1985 Chief Engineer J. G. Wood, to whom the second
(August 20, 1985) Claim was directed responded that the first Claim had never
been received because it had been sent to the wrong address. According to the
Carrier, that Claim was sent to an address "which had not been occupied by the
Carrier since May of 1984." Since that Claim has never been received, according to the Carrier, and since the August 20, 1985 Claim "exceed(ed) the sixty
(60) day period specified in IBEW Rule 29" both Claims were denied because
they had not been filed within required time limits. In rejecting this denial
of its Claims the Local Chairman states that a certain Carrier officer by the
name of Don Phillips told him "on the phone" that he had recalled seeing the
claim but "couldn't find it." In subsequent correspondence on appeal the
General Chairman states that the Carrier had been making frequent changes of
its offices (as well as its line of appeals) yet it had failed to "give (the)
Organization updated and complete revisions." With respect to the second
Claim, the Organization argues that it was a,continuing Claim and on the basis
of Rule 29(d) was properly filed. _
The Board observes that the Carrier does not deny on property that
someone in their offices told the Organization Representative that the Claim
had been received. The statement made by the Organization Representative
cannot be construed to be only one of self-interest, therefore, since no
affirmative defense was developed by the Carrier to permit conclusion that it
was such. Secondly, this Board finds reasonable the position of the Organization that its officers cannot know the correct address to send Claims to if
the Carrier does not inform them of changes of office addresses when such
takes place. The Board does not deny that Organization officers must keep
their files correct and up-to-date. It is unclear how this can be done, however, without information provided to them by the Carrier. Further, such line
of reasoning is supported by the silence of the Carrier on this question. It
never states that it had tried, or that it has actually forwarded, the new
address in question to the Organization. The procedural objection raised by
the Carrier with respect to the first Claim filed on April 17, 1985 is dismissed.
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89-2-86-2-124
The second Claim filed on August 20, 1985 was rejected by the Carrier
on procedural grounds because of "alleged misinformation" going back to March
8, 1985. In its November 18, 1985 correspondence to the Organization the Carrier admits that the misinformation given to the Claimant was more than alleged. At this later point in the handling of this Claim on property the Carrier calls the information given to the Claimant "incomplete." The Carrier
argues, however, that the correction of such incompleteness was the responsibility of the Claimant. The General Chairman's response to this is as follows. He states: "(I)t is correct" that the Claimant relied on information
given to him by the Carrier in March of 1985 because "(t)here is no other method whereby employees) can determine where employees junior to (them) are working." According to the General Chairman, "(t)his is why (the) Carrier employes someone ...who keeps accurate records of employees." The Board is persuaded that the arguments presented by the Organization on this issue are the
more reasonable. Evidently the Claimant could not exercise seniority rights
without correct information related to these rights. The accuracy of this
information must necessarily be found in the Carrier's records. The Claimant
made attempts to inform himself. He was given "incomplete" information as the
Carrier states. In this instance the difference between incomplete and incorrect is academic. When the Claimant filed the first Claim he was told that
the junior Electrician was furloughed on March 26, 1985. It was apparently
when he was recalled on July 15, 1985 that he discovered that this junior
Electrician had continued working up to that date, at least. The Claim filed
on August 20, 1985 was, therefore, within sixty (60) days of when this latter
information was reasonably available to the Claimant. While the second Claim
is not a continuing Claim as the Organization states, liability associated
with it is continuing (within the time-frame in question). The procedural
objection raised by the Carrier with respect to the August 20, 1985, claim is
also dismissed.
The Board will, therefore, rule on the merits of both claims. The
Rules at bar read, in pertinent part:
"Rule 12
(b) An employee losing a position through no fault of his
own will exercise seniority on a position held by any junior
employee in the same or lower classification wherein he holds
seniority. The junior employee thus displaced will be privileged to exercise seniority to a position held by any junior
employee in the same or lower classification wherein he holds
seniority.
(c) An employee losing a temporary position through no fault
of his own may return to his regular assignment or he may displace any junior employee holding a temporary position."
Form 1 Award No. 11647
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"Rule 22
(a) When it becomes necessary to reduce expenses, the force
will be reduced, seniority as per Rules 12 and 25 to govern,
the employees affected to take the rate of the job to which
their seniority entitles them. Employees exercising senior-
ity under this rule, will receive a day's time for each day
of traveling, at the rate of pay for the position they are
leaving, actual necessary expenses en route, automobile mile
age established at the Carrier's current rate, and free rail
or other transportation as authorized for dependent members
of their families and household goods. The Carrier shall
determine the manner in which household goods shall be moved,
except that it shall not be by freight car. They will re
ceive the rate of pay for the new position from the time they
actually start work thereon."
The record shows that the Claimant's seniority date is April 14, 1980. That
of the junior Electrician who worked while the Claimant was on furlough from
March 7, 1985 through July 14, 1985 is October 16, 1984. Both held temporary
crew lineman positions when the Claimant was furloughed on March 7, 1985.
This information is found on the crew lineman roster of January, 1985 and the
seniority dates in question are also stated in the first claim filed by the
Organization on April 17, 1985. The Claimant's seniority under the Rules
cited clearly gave him prior work rights. Such, in fact, is never denied by
the Carrier on property. Absent sufficient reasons to deny the instant claims
on procedural grounds, therefore, they must be sustained on merits. The Claimant shall be compensated at pro rata for all days he could have worked from
March 8, 1985 up to and including July 14, 1985. Additional benefits explicitly provided for in the Agreement shall also be paid to the Claimant, if any,
for the time-frame in question.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 8th day of February 1989.