NATIONAL RAILROAD ADJUSTMENT BOARD
Award No. 13877 Award No. 13878 Award No. 13879
Docket No. 13752 Docket No. 13753 Docket No. 13754
06-2-05-2-3 06-2-05-2-4 06-2-05-2-5
Award No. 13880 Award No. 13881 Award No. 13882
Docket No. 13755 Docket No. 13756 Docket No. 13757
06-2-05-2-6 06-2-05-2-7 06-2-05-2-8
Award No. 13883 Award No. 13884 Award No. 13885
Docket No. 13758 Docket No. 13759 Docket No. 13760
06-2-05-2-9 06-2-05-2-10 06-2-05-2-11
Award No. 13886 Award No. 13887 Award No. 13888
Docket No. 13761 Docket No. 13762 Docket No. 13763
06-2-05-2-12 06-2-05-2-13 06-2-05-2-14
Award No. 13889
Docket No. 13764
06-2-05-2-15
The Second Division consisted of the regular members and in addition Referee
Raymond E. McAlpin when the awards were rendered.
(Richard Woznicki et al
PARTIES T® DISPUTE: (
(Port Authority Trans-Hudson Corporation (PATH)
STATEMENT ®F CLAIM
:
"Claim No. 1:
1. The Carrier violated the Claimant Robert Adams' seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Electrician Seniority Roster, which was posted .Tune 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wished to
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continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 2:
1. The Carrier violated the Claimant David Amoros' seniority rights
when it retroactively froze his seniority on the Car Equipment
Dvision, Car Inspectors Seniority Roster, which `vas posted ,Tune 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 3:
1. The Carrier violated the Claimant Robert Delorenzo's seniority
rights when it retroactively froze his seniority on the Car
Equipment Division, Car Inspectors Seniority Roster, which was
posted June 6, 2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No.
4:
1. The Carrier violated the Claimant Michael Labruno's seniority
rights when it retroactively froze his seniority on the Car
Equipment Division, Car Inspectors Seniority Roster, which was
posted June 6, 2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
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Claim No. 5:
1. The Carrier violated the Claimant Peter Lucero's seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Car Inspectors Seniority Roster, which was posted June 6,
2003.
2. The Carrier shat now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 6:
1. The Carrier violated the Claimant Tracy 1Wlallue's seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Electrician Seniority Roster, which was posted June 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
1. The Carrier violated the Claimant Frank Masters' seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Electrician Seniority Roster, which was posted June 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
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Claim No. 8:
1. The Carrier violated the Claimant John Morrone's seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Car Inspectors Seniority Roster, which was posted June 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 9:
1. The Carrier violated the Claimant Gerard firtu's seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Car Inspectors Seniority Roster, which was posted June 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 10:
1. The Carrier violated the Claimant Richard Quattrocchi's seniority
rights when it retroactively froze his seniority on the Car
Equipment Division, Electrician Seniority Roster, which was posted
June 6, 2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
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Claim No. 11:
1. The Carrier violated the Claimant Kenneth Wallace's seniority
rights when it retroactively froze his seniority on the Car
Equipment Division, Machinist Seniority Roster, which was posted
June 6, 2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 12:
1. The Carrier violated the Claimant Gary Wertz's seniority rights
when it retroactively froze his seniority on the Car Equipment
Division, Car Inspectors Seniority Roster, which was posted dune 6,
2003.
2. The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether be wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU.
Claim No. 13:
1. The Carrier violated the Claimant Richard Woznicki's seniority
rights when it retroactively froze his seniority on the Car
Equipment Division, Car Inspectors Seniority Roster, which was
posted June 6, 2003.
2 The Carrier shall now be required to restore Claimant's seniority
and afford him the opportunity to choose whether he wishes to
continue to accumulate RITU seniority in accordance with the
February 28, 2002, letter agreement between Carrier and RITU."
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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 dune 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.
The Claimants in this matter were promoted from TCU/Caiman represented
positions to TCU/ARASA supervisor positions. Prior to their promotions, they were
covered under the TCU/Caiman Agreement. Under the applicable rule, which was
Section 11, Seniority, of that Agreement, Claimants were not required to pay dues to
maintain their seniority rights because they were working jobs covered by the same
In 2001 the Carmen on PATH voted to decertify the TCU and form the Railway
Independent Transit Union (RITU). The Claimants remained on the craft seniority
rosters and the Claimants continued to accumulate seniority.
During January, 2002 the RITU informed the Carrier that individuals so situated
were potentially listed incorrectly on the seniority roster. New provisions in the
PATH/RITU Agreement were negotiated potentially covering this situation. The
Claimants were not advised of the changes to the retention off seniority provisions and,
therefore, did not protect their seniority under the new terms of the PATH/RITU
provision. It was only when the Carrier posted the June, 2003 roster that the Claimants
were made aware of their situation. The Carrier retroactively reduced seniority back to
the date that the Claimants were promoted to their ARASA positions.
The Carrier urged the two Unions to work out this situation but there was
ultimately no agreement. The Claimants then filed individual claims.
The Carrier argued that this is a dispute between the TCU/ARASA and the RITU
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Carmen. RITU is the bargaining agent, therefore, the only agent of change. RITU
argued the prior practice of crediting time served in ARASA for TCU Carmen seniority
is not immutable. In a number of cases such findings have been made. The RITU would
note that these individuals would have been on the seniority list so that the RITU would
have a duty to represent those individuals whether they paid dues or not. They have
rights and hold the craft title as long as they hold seniority. A number of Federal Appeals
Court cases state that individuals in this situation have no vesting of seniority. Therefore,
it is appropriate for the RITU to require dues for representation. The Claimants in this
matter want a free ride. There is no Collective Bargaining Agreement violation under the
contract with PATH and RITU. Under the 60 day rule no one was denied the rights
contained in those provisions, therefore, there is no situation that is grievable. Cases have
found that, where there is a revised seniority list without protest, that seniority list stands.
The RITU's position is that, if the individuals chose to pay the RITU dues, then they
would continue to accrue seniority, otherwise they would go back to the original date of
promotion.
RITU further argued that, even though there were no direct notices to ARASA
members, there were meetings about this situation. The Union merely wants dues as a
criterion to maintain and accrue seniority. The Claimants were given an opportunity to
continue their seniority by paying dues. One individual took that option. The rest did
not. Based on the above the claims must be denied.
The Carrier's position is that it recognized that the promoted Carmen did not pay
dues. The Carrier does not want to favor one organization over the other. This is not an
uncommon situation on the property. The Carrier urged the competing Unions to work
out this situation and no agreement was reached. Therefore, the Claimants filed
individual claims and agreed to the delays within the procedure. RITU has admitted to
the practice on the property. The Claimants do hold seniority and there is no right to
remove carried seniority. It is also proper for the Claimants to progress their claim under
the RITU agreement since they hold seniority under the RITU agreement. The
Claimants do not dispute the right for the Parties to enter an agreement they just dispute
the interpretation. The Claimants have rights and they have the right to protect those
rights.
The Carrier further notes that the RITU notified the Claimants only of the change
of seniority not the specifics. The Carrier would further note that RITU not only ffroze
the seniority, but also reduced seniority to a date prior to the effective date of the RITU
Agreement. The Carrier notes that there was no agreement between the Carrier and the
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two organizations involved for a retroactive reduction of seniority rights. RITU could
have negotiated this when it took over this bargaining unit, but it did not.
Upon complete review of the evidence the Board finds that it is appropriate for all
claims involving the 13 Claimants to be adjudicated in this single Award. These 13
Supervisors were promoted from the TCU/Carmen PATH Agreement. Subsequently, the
RITU decertified the TCU/Carmen and accepted the Carmen Agreement. The
individuals remained on the Carmen rosters and continued to accumulate seniority.
These individuals paid their dues to one craft. The status quo remained until the Parties
negotiated the February 28, 2002 Agreement.
The Board finds that, based on the evidence presented above and the record in this
matter, the Carrier should not have frozen and reduced Claimants' seniority on June 6,
2003 because Claimants did not receive advance written notice. The 13 Claimants will be
given 90 calendar days from the effective date of this award to pay dues to the RITU.
Otherwise, their seniority will be frozen as of January 1, 2003. The Board would note
that the individuals never received written notice of the changes desired by RITU (see
First Division Award No. 26059). The Carrier will issue a written notice to each Claimant
-proof of receipt required- advising Claimant of his options based on this Award and
the deadline to reply and retain seniority after January 1, 2003. The Board would
finally note that individuals have the right to file claims and that this matter is properly
before the Second Division.
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award efffective on or before 30 days following the postmark date the Award is
transmitted to the parties.
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 25th day of April 2006.