STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employes, Local 848, on the property of the Chicago, Burlington and Quincy Railroad Company, for and on behalf of former Waiter Ernest Curtis that he be restored to service and compensated for net wage loss with seniority and vacation rights unimpaired account of Carrier forfeiting claimant's seniority in violation of the existing agreement.
EMPLOYES' STATEMENT OF FACTS: Claimant was advised by Carrier's Crew Supervisor in January, 1959, that Carrier was contemplating reducing forces before the last of February, 1959. Carrier's Crew Supervisor agreed to furlough claimant in advance, without prejudice, since a reduction in force was anticipated, on the condition that claimant leave a mailing address, report for work within ten (10) days after being notified by mail or telegram and on the further condition that claimant make a couple of trips should he be called at the address in question.
Claimant gave to Carrier's Crew Supervisor the address of 478 Clayton, c/o Garfield Burns, "Burns Janitorial Service". Carrier and claimant had followed the same procedure in 1956, the only difference being that in 1956 the address left by claimant was c/o the "Atlantic Coast Line Railroad Commissary", Jacksonville, Florida. These arrangements were made in both instances in order to afford claimant the opportunity of working for the Atlantic Coast Line and Burns Janitorial Service while furloughed. In the latter instance, and prior to February 5, 1958, claimant was called for duty three (3) times. Twice he reported and made a trip, and on the third occasion, he informed Carrier by telegram that he could not make the trip because of a tooth infection.
Under date of February 5, 1959, claimant received official notice of the fact that he had been furloughed. (Employe's Exhibit A.) On March 4, 1959, Carrier advised claimant that he would not be recalled to service. (Employes' Exhibit B.) As on the two (2) occasions prior to February 5, 1959, when claimant was called for service, both the February 5th letter and the March 4th letter were addressed to claimant at 478 Clayton, Denver, Colorado. No reason was assigned by carrier in its March 4th letter as to just why claimant would not be recalled to service.
Carrier recalled to service an employe junior to claimant who had been furloughed either at the same time claimant was furloughed or prior thereto.
On February 5th, 1959, you were advised that you were being laid off due to reduction in force.
Accept this as a time claim in behalf of Mr. Ernest Curtis who has been denied the right to exercise his seniority as a waiter in the Dining Car Department of the Chicago, Burlington and Quincy Railroad Company.
Mr. Curtis was furloughed February 5, 1959, and has not as yet been recalled to service while junior employes - to name me in particular, Charles Boyer, a waiter with less seniority than Mr. Curtis - are being assigned to various positions as waiter. 9831-1o
We request that Mr. Curtis be paid in accordance with all the time earned on the extra board by the junior employe who has been put over him in violation of his seniority rights.
We also request that Mr. Curtis be immediately called and assigned to the extra board until such time that he can hold regular assignment and given his proper turn on the extra board.
This will acknowledge your letter of May 27 making claim in behalf of Mr. Ernest Curtis.
If you will investigate further, I am sure you will find that we did comply with the contract rules, however Mr. Curtis failed to comply.
On May 27, 1959, a claim was filed in behalf of Ernest Curtis who has been denied his right to exercise his seniority in the Dining Car Department of the Chicago, Burlington and Quincy Railroad Company.
In denying this claim in a letter dated June 8, 1959, Mr. Mott refused to recognize the fact that seniority is personal property and that he cannot use fictitious excuses for denying an employe or individual his rights to his own personal property.
In his letter of June 8, 1959, he states that if we will investigate further, he is sure that we will find that he complied with the agree- 9831--11 895
I am appealing to your office under the rule set forth in the existing agreement for such appeals and asking that an adjustment be made and that Mr. Ernest Curtis be immediately returned to service and paid for all time lost because of the violation of his seniority.
"Rule 25. (a) An employe subject to this agreement, who believes he has been unjustly dealt with or that any of the provisions of this agreement have been violated, shall first present the same in writing to the crew supervisor within ten (10) days of the occurrence. If the claim or grievance is not satisfactorily adjusted, the employe or his representative may, following the decision of the crew supervisor, appeal in writing to the Superintendent of the Dining Car Department, providing such appeal is presented within ten (10) days. 9831--12 896
The record leaves us with no satisfactory explanation as to why the Carrier, one month after furloughing the Claimant, sent him a notice of the termination of his service and seniority, without stating any reason for so doing. If Carrier was then aware of Claimant Curtis' moves without notification of change of address, it seems strange to us that it did not then state that Curtis' services were being terminated because of his violation of Rule 19 (c). To terminate the seniority and service of an employe while he is on furlough, and then wait three months to give him and his Organization a stated reason, seems to us not only highly irregular, but also not in keeping with the spirit and purpose of the Railway Labor Act and the parties' Agreement.
However, if the Carrier has failed to observe the spirit of the Agreement, Claimant has also failed to meet his obligations under the accepted rules. Regardless of whether Carrier was properly informed of Claimant's address, and changes of address, as required by Rule 19 (c), Curtis failed to take proper steps to protect his seniority when he was notified that it was being terminated. Rule 25 (a) has not been observed. Timely steps were not taken in this matter. And we are bound to respect the language of Rule 25 (a), as well as other provisions of the parties' Agreement.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21,1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and