The essential facts underlying this Claim are undisputed. Claimant Clontz, a Journeyman Electrician at Carrier's facilities in Brainerd, MN, was assigned a seniority date of March 24, 1997 on the January 1, 2007 seniority roster, giving him a number 8 position on the list. On or about March 25, 2007, Carrier then issued a revised seniority roster reflecting Claimant's seniority as November 6, 2006, giving him a number 23 position.
The Organization immediately initiated a timely Claim on Clontz's behalf, handled it in the usual fashion on the property and following denial by Carrier's highest designated official and appropriate conference, appealed the matter to the Board for final and binding resolution.
In declining to reassign Claimant's seniority date back to March 24, 1997, Carrier takes the position that because he was granted a leave of absence and craft transfer to train service pursuant to Rule 16 of the Agreement, and then voluntarily returned to service as a Mechanical Department Electrician fifty-two days later on November 6, 2006 without completing his probationary period as a Conductor, his seniority was properly adjusted to the date of his return, November 6, 2006.
The Organization's protest is based principally upon the contention that in waiting $4 days after the posting of the January I, 2007 roster to change Claimant's seniority date Carrier has arbitrarily adjusted his seniority in violation of Rule 26 of the Agreement whose terms call for such corrections to be made within 60 days from date of posting the list.
The dispute reflects the tension between two arguably applicable Rules. Rule 26 - SENIORITY provides as follows:
From the foregoing, it is apparent that under the usual circumstances the employee who involuntarily returns to an IBEW position resumes his former seniority date, while one who voluntarily reverts loses seniority for the time out of service while on leave. It is also clear that adjustments to seniority lists must be normally made timely, i.e., within 60 days from date of original posting. In cases such as the case under consideration, the terms of Rule 26 and Rule 16 obviously have the potential of colliding and throwing off sparks.
In this instance it seems clear that the Board need not attempt to wrestle with questions of how these provisions were intended to be harmonized as a matter of broad principle. According to Claimant's undisputed representations, while still a Conductor Trainee but considering a return to his prior work he first reviewed the applicable rules and then spoke with both the supervisor in his shop and the appropriate supervisor in train service. Claimant states without equivocation that he was told he could return to his Journeyman Electrician position with no loss of seniority, and in reliance on those representations voluntarily dropped out of the Conductor Training. Thus, while the applicable rules may or may not normally provide for such an outcome, under the unique facts presented, and consistent with basic principles of both fairness and estoppel, the Claim must be honored.
The Claim is sustained. Carrier is directed to re-establish the seniority date of John J. Clontz as it appeared on the January 1, 2007 roster. Form 1 Award No. 13983
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 effective on or before 30 days following the postmark date the Award is transmitted to the parties.