STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employes Local 849 on the property of the Chicago, Rock Island & Pacific Railroad Company, for and on behalf of Lounge Car Porter Henry Walton, who was replaced on his regular assignment by Hasten Terrell, a Junior employe, that:
1. Carrier be ordered to correct its 1960 Lounge Car Porter's seniority roster so as to show claimant's seniority date as the same date that appeared on Carrier's 1947 Lounge Car Porter's seniority roster.
3. Claimant be compensated for his net loss in wages since the date he was replaced on his regular assignment
EMPLOYES' STATEMENT OF FACTS: On September 6, 1960, Employes filed the following claim:
Having made no timely protest the 1960 seniority dates applicable to the claimant involved, the 1960 seniority roster must control the present dispute. Particular reference is made to the emphasized portion of the above quoted rule.
In discussing the case on the property, the Organization made no contention that the 1960 seniority roster was prepared and issued other than in the timely manner prescribed by Rule 9(f). Carrier's records show that the controlling roster was sent to General Chairman C. L. Patrick on March 4, 1960. At no time did Mr. Patrick allege failure to receive a copy of the roster for his inspection. At no time did General Chairman Patrick protest the accuracy and validity of the seniority date of the employe involved after his receipt of the 1960 roster.
Rule 9(f) was written into the Agreement to provide for prompt and orderly correction of possible errors if any in the annual seniority rosters. To now sustain the claim of Mr. Walton would be to write Rule 9(f) out of the Agreement.
No protest of claimant's seniority date on the 1960 roster having been received within the 30-day time limit imposed by Rule 9(f), the Carrier is powerless to make any changes at any future date.
For the above reasons, claim in behalf of claimant Walton must be denied in its entirety and Carrier respectfully requests your Board to do so.
OPINION OF BOARD: This is a dispute over the relative seniority of two lounge car porters. Every January since 1948, the Carrier has regularly posted seniority rosters on which the Claimant, Henry Walton, has appeared as junior to Hasten Terrell. Walton made no protest of his position on the roster until September 6, 1960, shortly after he was replaced in his assignment by Terrell.
Rule 9, paragraph (f) bars any protest more than 30 days after the roster has been published and would seem, therefore, to bar this claim. The Petitioner, however, asserts that the 1947 roster placed Walton's name senior to Terrell's. It argued that Walton was thereby permanently established as senior to Terrell and that the Carrier had no right, thereafter, to change their 12297-7 955
relative positions. It urged that all subsequent rosters be deemed to have had no effect in changing their standings.
The rule, it may be noted, provides that the list will be revised each year and that, if not protested in 30 days, it shall be deemed permanent. This Surface contradiction, providing for flexibility and rigidity at one and the same time, can be resolved and harmonized if we bear in mind the objectives of the parties. The seniority roster is compiled to have an unimpeachable source of authority upon which to base decisions in which seniority may be involved. This authority must be established in advance if quarreling and bickering over relative standing is to be avoided at the time it is called into use. The parties had two major concerns in the establishment of the roster. First, there had to be recognition that the composition of any work force varies from time to time as old employes drop out or transfer to other jobs and as new employes are added. Management must make periodic revisions if the list is to reflect these inevitable changes. The parties must also have foreseen that in making revisions there would always be the possibility of error. This possibility was their second concern. It was solved by giving the employes a limited time in which to call attention to an error and have it corrected. Thus, the needs of Management to revise and the employes to correct having been provided for, and both having been exercised, the list was then to become permanent.
The permanency contemplated by the parties could not mean that Management might not thereafter revise it, for this would be a direct contradiction of the provision calling for yearly revision. It was to be, however, permanent in other respects, and it precludes the right of an employe to enter a protest once the initial time limit of 30 days has elapsed.
Thirty days after it has been established, lacking a protest, the seniority roster becomes permanent and unchallengeable in the future, except that Management may revise it in January of each year. Thereafter, employes may challenge the list only insofar as the revision constitutes a change from the year before and this challenge must be made within the allotted 30 days by the employes aggrieved or the right to do so is forever lost. The argument of the Petitioner that the 1947 list having once been constituted, could not thereafter be revised is, therefore, rejected as not in accord with the intention that the parties expressed in the Rule.
The Petitioner relies on the authority of Award 8709. That case is clearly distinguishable from the case at bar. There, the seniority list was established by mutual agreement between Carrier and Organization who had the problem of merging two seniority lists when two positions were consolidated into one. The list was upheld not because it was once established and therefore inviolable by the Carrier but because it was jointly and mutually agreed upon. There, as in this case, the Claimant waited a long time, 15 years in that case and 12 years in this. We agree with the opinion of the Board that good conscience should not upset a long established list where the Claimant "sat supinely by, while the rights and obligations of the Carrier, Organization and employes listed on the roster crystallized."
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: