Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13320
Docket No. 13046
98-2-95-2-69
The Second Division consisted
of
the regular members and in addition Referee
Eckehard Muessig when award was rendered.
(International Brotherhood
of
Electrical Workers
( System Council No. 16
PARTIES TO DISPUTE:
(Burlington Northern Railroad
STATEMENT OF CLAIM:
"1. That in violation
of
the controlling Agreement, Rule 25,
Paragraph F in particular, the Burlington Northern Railroad
Company improperly assigned a wrong seniority date to
Electronic Technician James Kovach
of
Memphis, Tennessee
on the January, 1994 Telecommunications Department
Seniority Roster, and;
2. Accordingly, the Burlington Northern Railroad Company
should correct Electronic Technician James Kovach's
seniority date to August 24, 1992, rather than the improper
date on the January, 1994 Telecommunications Seniority
Roster."
FINDINGS:
The Second Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning
of
the Railway Labor Act, as
approved June 21, 1934.
Form 1 Award No. 13320
Page 2 Docket No. 13046
98-2-95-2-69
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice
of
hearing thereon.
In this dispute, the Claimant contends that he was given an improper seniority
date. To resolve this dispute, it is instructive to review certain portions
of
the
Claimant's employment history, as shown by the on-the-property record:
February 1992: Claimant employed as a lineman, Tacoma,
Washington
February 1992: On the same date when he began work (which is not
shown), the Claimant was injured on the job. He
was then off work for six (6) months.
April 1992: Claimant bid and was awarded an Electronic
Technician Apprentice position in Ft. Worth, Texas.
However, because
of
his on-the-job injury, he could
not start his apprenticeship until August 1992.
September 29, 1992: Claimant injured on the job.
October 2, 1992: Claimant had surgery for hernia.
October 15, 1992: Claimant's apprentice position abolished.
February 22, 1993: Claimant was placed on an unbid vacant Electronic
Technician position at Memphis, Tennessee.
Prior to February 22, while the Claimant was
recovering, he received his FCC license and had
passed the Electronic Technician's entrance
examination.
The Claimant seeks to have a seniority date
of
August 2.1, 1992, rather than
Februarv 22, 1993.
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The Organization argues that, had it not been for the on-the-job injury, the
Claimant would have had a seniority date of August 24, 1992, as he claims. It submits
that Rule 25 Seniority Paragraph (t) applies in this case. Paragraph (t) reads as follows:
"(f) If any trainee, regular apprentice, helper apprentice, or
upgraded helper is injured while on duty and such injury causes this
employee to lose time from his position as a trainee, apprentice (regular or
helper) or an upgraded helper, which loss of time would delay the
completion of his time relative to qualifying as a mechanic and establishing
seniority as such, the so affected employee, upon his return to active
service with Carrier and the completion of the necessary time to be
granted a seniority date as a mechanic, shall be entitled to a retroactive
seniority date as a mechanic, as of the date he would have acquired had he
not lost time account of being injured while on duty. The same provision
shall apply to trainees, apprentices (regular or helper) who lose time
account active military service, National Guard service, or training or
Reserve active duty training."
The Carrier, on the other hand, argues that Rule 25(g) is governing in this
matter. That paragraph reads as follows:
"(g) Present employees bidding or applying for a journeyman
position in a class in which they do not hold seniority rights or have not
satisfactorily completed an apprentice training program under prevailing
agreements, must successfully pass an entrance examination mutually
agreed to by the Carrier and the General Chairman before they are
assigned the position. Such employees bidding or applying for a position
which, by law requires a license, must possess the license before the
examination may be taken. Prospective new employees must also have
license required by law and successfully pass an entrance examination
applicable to the position they are seeking.
The minimum passing grade of these entrance examinations shall be
70% and the applicants passing an examination and receiving an
assignment will then be further required to participate in and successfully
complete all portions of the applicable training program; however, those
applicants who have received a grade of 87°/a or higher on the entrance
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examination will not be required to participate in the correspondence
portion of the training.
The employees subject herein shall establish seniority in accord with
the provisions of Rule 27 (except upgraded apprentices electing option 2
of Rule 9), and will not be subject to entry rates.
It is understood that applicants for a journeyman's position who,
within the probationary period of Rule 27, present documented evidence
of having served a four-year apprenticeship in the class for which they are
applying or who present valid IBEW journeyman's credentials for the
class, will, at their option, be exempted from the classroom portion of the
apprenticeship training."
Rule 27 Bulletining New Positions and Vacancies, referred to above:
"Rule 27. BULLETINING NEW POSITIONS AND VACANCIES
(b) Bulletins will be addressed to members of the class in
which the vacancy exists, as well as to employees in all lower classes,
and, in the event no bid is received from an employee in the class in
which the vacancy occurs the senior qualified employee in the next
lower class bidding for the same will be assigned and will establish
a date in such higher class as of the date he first performs service
therein provided he works on the position at least sixty (60)
calendar days. The 60-day requirement may be waived by mutual
agreement in case of individuals unusually qualified due to training
and experience. If after a fair trial, an employee fails to qualify in
a higher class, he may return to the lower class from which he came
but may displace only the junior employee holding a regular
assignment in such lower class, if his junior, and he will not
establish seniority in the higher class.
****_
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The Claimant obtained his Electronic Position under the provisions of Rule 25(g).
That Rule, in pertinent part, provides that employees will "establish seniority in accord
with the provisions of Rule 27."
Rule 27(b) noted previously, in relevant part, states "in the event no bid is
received from an employee in the class in which the vacancy occurs the senior qualified
employee in the next lower class bidding for same will be assigned and will establish a
date in such higher class as of the date he first performs service therein provided he
works on the position at least sixty (60) calendar days."
Therefore, an employee obtaining a position in a higher class will establish
seniority in that class on the date that he first performs service. This is the situation that
applies to the Claimant. The Claimant first performed service as an Electronic
Technician on February 22, 1993 and, thus, established seniority in that class on that
date. Counting back to establish seniority as provided by Rule 25(f) is applicable only
when the employee completes the apprenticeship training program. This did not happen
in this case. The Claimant obtained his Electronic Technician position, not because he
completed an apprenticeship, but because he passed an entrance examination and
obtained an FCC license pursuant to Rule 25(g).
.WARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above. hereby orders that:
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 16th day of September 1998.