BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, New York Central Railroad, Eastern District (except Boston Division):
EMPLOYES' STATEMENT OF FACTS: Miss A. Clancy has been in the service of the New York Central Railroad Company since August 25th, 1941-some 17 years.
On May 21st, 1957, Miss Clancy was furloughed due to a reduction in the forces in the office of Auditor of Miscellaneous Accounts.
Early in November, 1957, Miss Clancy made personal application for employment in office of the District Auditor of Expenditures, stating that she was available for a position when one was open, either temporary or regular.
On November 27th, 1957, a Mr. Thomas Lynch was newly hired and placed on a Messenger-Clerk position in the office of District Auditor of Expenditures, and Miss Clancy's application for reemployment was ignoredMr. Lynch resigned January 31st, 1958 and Miss Clancy was again not recalled.
There has been no agreement violation and the claim of the employe should be denied.
All of the facts and arguments herein set forth have been made known to the Employes' representatives in the handling of the claim on the property.
OPINION OF BOARD: The claim is (1) that the Carrier violated the Agreement when it declined to restore Claimant to service, and (2) that she should be paid for all time lost and restored to service in "whatever position her seniority and qualifications will permit her to take over."
The provisions of the Agreement cited as applicable are Rules 14 and 16, and portions of Rule 9. They are as follows:
On May 22, 1957, due to a force reduction, Claimant was furloughed from the Office of the Auditor of Miscellaneous Accounts, in which her seniority date was October 24, 1956; it did not entitle her to displacement rights on any remaining position in the district.
In an attempt to find her a position she was referred to the District Auditor of Expenditures. There she took a typing examination which she failed to pass, and was shown the Comptometer Operator's test, which she did not take. On June 20, 1957, she applied for a vacancy as Clerk-Key PunchTab Machine Operator but was rejected for lack of training and experience. The Carrier then arranged for her to attend a five day school for key punch operators conducted by International Business Machine Corporation, after which, in three separate tests, she failed to qualify. 8895-7 S51
In November Claimant personally visited the District Auditor of Expenditures in whose department she had no seniority, and asked if any open jobs were available. Finding that .there were none, she stated orally that she was available and interested in any vacancy, but mentioned no specific position and filed no written application. Later in November the job of Messenger-Clerk became vacant and was bulletined. No employe was on furlough from the office and no bid was submitted by an employe during the five day period. A new employe, Thomas Lynch, was employed on November 29, 1957, but remained only until January 31, 1958. Again Claimant filed no bid; the position was filled in February 1958, and since held, by an employe senior to Claimant.
While the claim is that the Carrier violated the Agreement by not giving her the Messenger-Clerk vacancy on November 29, 1957, the remedy sought, in addition to pay for all time lost, is that she be restored to service in "whatever position her seniority and qualifications will permit her to take over." However, there is no claim that the Carrier has excluded Claimant from any position to which she was entitled by seniority and qualifications, unless that of Messenger-Clerk, so that we are limited to a consideration of that position.
But Claimant has no seniority in the office in which that position existed. For that reason, and since the vacancy did not result from an increase of force after a reduction, Rule 14 does not apply.
The remaining question is whether Claimant was entitled to the position under Rule 16. It is not concerned with seniority, which governs preferential rights as between employes. With regard to "positions bulletined on other roster," it entitles all employes to preferences over non-employes. Under it Claimant was entitled to the bulletined position of Messenger-Clerk as against Lynch, a non-employe, if in fact she filed an application for the position bulletined.
The argument is made that the phrase "filing applications" does not say "filing written applications," and that Claimant's oral statement to the head of the department several weeks previously therefore constituted filing an application. The contention would seem to stretch the meaning of the word "filing," and to bring chaos in employment rights, since fallible individual memories of claims "filed" would take the place of positive orderly records.
But it is not strictly necessary to decide the point, for Rule 9 provides definitely that vacancies shall be bulletined for five days and that employes desiring such position shall file their application with the designated official "within that time." Certainly no application of any kind was made or filed by Claimant within the period of five days during which the job was bulletined. If in fact Claimant was qualified for the position, which we need not here decide, she could have had it by filing her application for that particular job within the five days after it was bulletined, as provided by the Rules. Having failed to do so, she had no right of which the Carrier has deprived her.
FINDINGS: The Third Division of the Adjustment Board upon the whole record and all the evidence, finds and holds: