Award No. 18045 Docket No. CL-18117
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (G"531) that:
EMPLOYES' STATEMENT OF FACTS: Employe E. L. Gudgel, who has a seniority date of January 26, 1962 in Seniority District No. 42, is the regularly assigned occupant of Steno-Clerk Position 5306 at Austin, Minnesota.
On May 31, 1967, Regional Data Manager J. J. Komurka hired his son, D. K. Komurka, who is 10 years of age and a 10th grade high school student, to perform vacation relief work in the Regional Data Office, Seniority District No. 156 at Austin, Minnesota.
On July 12, 1967, Bulletin No. 14 was issued by Regional Data Manager Komurka advertising vacancy on Keypunch Operator Position 8867 in the Regional Office at Austin. See Employes' Exhibit "A".
7.967) and employe M. K. Carroll (seniority date-July 7, 1967), both of whom properly establish seniority in Seniority District No. 156.
Claimant Cudgel was "placed" on Keypunch Operator-Clerk Position No. 8867 on November 6, 1967 and subsequently paid, without foundation, the difference between what he had earned on his regularly assigned position in Seniority District No. 42 and the rate of Keypunch Operator-Clerk Position No. 8867 for the period July 24 through November 3, 1967.
When General Chairman Hopper appealed the instant claim to Mr. Amour, former Vice President-Labor Relations, he (Mr. Hopper) advised that "* * * paragraphs 1 and 2 of the claim were disposed of by agreement" and that the appeal to Mr. Amour was only °t, * ' with respect to paragraph 3 of the claim " * *". In this regard, please see Carrier's Exhibit "G" which is a copy of General Chairman Hopper's letter to Mr. Amour under date of January 11, 1968.
Letter written by Mr- Amour to Mr. Hopper under date of March 6, 1968 . . . . . . . . . . . . . . . . . . . . . . . . . Carrier's Exhibit "H"
Letter written by Mr. Amour to Mr. Hopper under date of March 26, 1968 . . . . . . . . . . . . . . . . . . . . . . . . . Carrier's Exhibit "I"
OPINION OF BOARD: Claimant Gudgel, seniority date of January 26, 1962 in Seniority District No. 42, is the regularly assigned occupant of Steno-Clerk position 5306 at Austin, Minnesota.
On July 12, 1967, Carrier issued Bulletin No. 14 to employes in Seniority District No. 156 advertising Keypunch Operator-Clerk Position No. 8867 in the Austin Regional Data office (Seniority Distr~et No. 156). Par. Komurka, who held a May 31, 1967 seniority date in Seniority District No. 156 and the Claimant, who did not hold seniority in Seniority District No. 156, were the only two applicants. Komurka as senior was assigned the position. Originally, Komurka was hired on May 31. 1967 to perform vacation relief work in the Regional Data office, Seniority District No. 156 at Austin, Mimresota.
The Organization contends that, Claimant had a prior right to the position and alleges that the Carrier violated the Agreement by not assigning Claimant to the posit'on beginning July 21, 1967. Organization further demands that Claimant be assigned to the position and paid the rate of the position commencing July 21, and subsequent dates. The Claim was discussed by the General Chairman with a Carrier official and as a result of such discussion, Carrier made an offer of settlement of the claim by which Claimant was to be given a seniority date of May 30, was to be placed or. the position and Claimant was to be allowed the difference in earnings for the claim dates.
The General Chairman, although agreeing to the May 30 seniority date and Claimant's assignment to the pos'tion, appealed the Claim on the grounds that the allowance of difference in earnings was inadequate and demanded
that the total wages of the position be paid. Carrier's highest Officer stated that the alleged violation was no violation at all and the proposed settlement was erroneous and arbitrary in giving Claimant position 8867 and a seniority date in District No. 156.
Petitioner admits that items 1 and 2 of the Claim are no longer issues. The proposal of settlement made by a lower Carrier Official was accepted by the General Chairman except for that Clause which provides for only d'fference in earnings for the Claimant for the period involved. Claimant accepted the terms of the Agreement "in tots", although he did accept the difference in earnings under protest and has retained that payment.
The argument is propounded by Carrier that the Employes are bound by the Rule that a settlement must be accepted or rejected in its entirety; that one cannot accept the parts he likes and reject that which he dislikes; that since Claimant has taken the position and the seniority date and the difference in earnings the claim should be dismissed on the grounds that he is bound by the entire settlement.
Petitioner on the other hand asserts that Claimant was placed on position 88C7 "not because of any Agreement reached with the Organization", and Carrier responds that if this is the position of the Organization, then there was no settlement at all, only an offer; further Carrier argues that an offer of settlement is not an admission of violation, nor is it admissible evidence. We agree with the Carrier in this respect, and taking the Organization at its word as evidenced by the record itself, we do not conclude that the settlement was in fact a settlement but merely an offer of settlement. Further we agree w'.th Carrier that the Carrier representative making the offer was not the Carrier officer authorized to make and interpret agreements.
Since Komwka had a seniority date in District No. 1.56 and Claimant did not during the entire period covered by the bulletin advert sing position 8867, we agree with Carrier that he and not Claimant was entitled to the position. Komurka was not hired for that vacancy. Not only was there no violation of the Agreement, the so-called settlement was no settlement at all, and in fact was made by a Carrier employe not authorized to bind the Carrier. For these and other reasons, we will deny the Claim.