NORFOLK AND WESTERN RAILWAY COMPANY
(Lake Region)
In accordance with the above bulletins, claimants were assigned as follows:
V. L. Winebrenner, off the former Chicago Division Seniority District, was assigned to Relief Position F-16, and was the reason for which the claims were filed. Position F-16 relieves the following positions:
It should be noted in passing that V. L. Winebrenner performs no service on Thursdays and Fridays, these being his rest days, notwithstanding that penalty claim is made for each Thursday and Friday.
The claim here in dispute was initiated by the General Chairman in a letter dated November 16, 1967, a copy of which is attached hereto and identified as Carrier's Exhibit F. The subsequent handling of the claim on the property was as follows:
OPINION OF BOARD: The sole issue to be determined herein is whether or not Carrier violated the applicable seniority rules when it assigned Car Distributor, V. L. Winebrenner, in the "FO" Office, Fort Wayne, Indiana, to the "FO" Office relocated at East Wayne, Indiana.
After bidding, Mr. Winebrenner was assigned to the bulletined position of Relief Assignment, "FO" telegraph office, East Wayne, Indiana, with assigned rest days on Thursday and Friday, and with a work schedule in relief of other operators on the other days of the week. Mr. Winebrenner's seniority originated in the Chicago Seniority Division.
Carrier's position is that Rule 8, which is a specific rule, governs in this dispute rather than Rule 7, which is a general rule, and that inasmuch as the "F0" office in downtown Fort Wayne, Indiana was relocated intact with the same positions and the performance of the same work and serving the same functions at the new location as was done at the old location, then Rule 8 was not violated; that the East Wayne Yard office ("Q" telegraph office) to where the "FO" office was moved is subject to bids on vacancies from the Chicago Division; that the "FO" office at Fort Wayne, Indiana was not closed nor a new office established at East Wayne Yard due to the "FO" office work and equipment being relocated as a unit; that Claimants failed to cite a rule of the Agreement in support of their demand for a penalty of one day's pay each week for so long as the violation continues.
The Organization's basic contention is that absent compliance with the protective agreement, the new positions at the East Wayne Yard are not subject to bids from employes with Chicago Division seniority inasmuch as Carrier did not have the right to transfer the special seniority bidding rights negotiated fox the "FO" office, Fort Wayne, to the new positions in the yard created by operation of Rule 38 r,f the Agreement, and that such transfer of special seniority rights with(.ut negotiation and agreement violates the very essence of seniority; that the Organization did not agree that the new positions, required by Rule 38, would be subject to bid from employes on both divisions; that when Carrier permitted an employe with only Chicago Division seniority to relieve employes holding only Fort Wayne Division seniority, these latter employes' rights were invaded.
First, we find that the "FO" office relocated at the East Wayne yard must be considered a "new office", even though Carrier alleges that the positions and functions were the same. Rule 38 supports this conclusion. It provides that offices moved a distance in excess of five miles, as was done in this instance, shall be considered as a new office.
Rule 8 defines the Seniority Districts, the pertinent parts thereof providing as follows:
It is thus seen that the Seniority Districts as defined in said Rule 8 are primarily geographical and mutually exclusive, but make certain offices located within one geographical district or another subject to bids by employes with seniority in two separate seniority districts.
The Carrier has pointed out that the Fort Wayne Terminal is the western terminus of the Fort Wayne Division, and the Eastern terminus of the Chicago Division; that it extends from Mile Post 362.3 at New Haven, Indiana, west to Mile Post 373.2, which is west of Fort Wayne; that there were four offices within this terminal: "Q", Northeast Tower, "FO" office in downtown Fort Wayne, Indiana at the Passenger Depot, and Runnion Avenue; that "Q" and Northeast Tower offices are in the Fort Wayne Division, Runnion in the Chicago Division, and that the "FO" office was in both divisions.
Thus, the question remains, did the "FO" office become a Fort Wayne Division office because it was moved into the Fort Wayne Division territory, or does it retain its joint Division character because the only change in the nature of the office was geographical.
It clearly appears that location was the criteria used in dividing the offices of the Fort Wayne Terminal between the Fort Wayne District and the Chicago District and giving the "FO" office in downtown Fort Wayne to both districts. Inasmuch as the "FO" office according to Rule 38 was reestablished as a new office, it is now in the exclusively Fort Wayne Division area, and thus it can be concluded that it became a Fort Wayne Division office. Therefore, the Agreement was violated when Carrier opened the position to bid by employes with Chicago Division seniority.
In regard to damages, Claimants failed to prove that they suffered any wage loss or monetary loss as a result of the violation of the Agreement by Carrier and, therefore, we must deny Part 2 of the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes 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
The Referee and Carrier Members correctly found that the Agreement was violated when the Carrier opened the positions in question to bids by employes of another seniority district without benefit of an agreement to do so. To that extent the Labor Members were and are in agreement.
We must disagree, however, with the finding by the majority that the claimants were not shown to have suffered any loss as a result of the violation.
Those claimants who were improperly relieved on their rest days by the employe from the Chicago Division lost the work on those days. It is well settled that seniority district lines may not be crossed in providing rest day relief-Award 14896, e.g. It is also well settled by a long line of awards, typified by 9393, that in the absence of a proper relief employe or an extra employe, work on rest days belongs to the regular occupant of the position. To that extent and in that manner it was shown that the claimants did suffer losses, and their claims should have been sustained accordingly. The failure to do so constitutes error, requiring this partial dissent.