BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
signed on December 6, 1968, and which also prevented Employes Richter and Baltutis from assuming the positions for which they had made application and were assigned by bulletin.
Starting with December 6, 1968, Claimant LaRue filed time claims because he was not promptly transferred to the position to which assigned and required to work his old position, and he continued to file such claims during the period of the instant claim, i.e., December 6 to December 24, 1968; however, during that period, Claimant LaRue received the same rate of pay on his old position as he would have received on his new position.
It was only after the Carrier was able to hire a new employe, P. Wittig, on Decembor 21, 1968, and break him in as a caller ;vbereby he was placed on the position occupied by Claimant LaRue (Road Caller Position 0960) on December 26, 1968, thereby making it possible for Claimant LaRue to commence filling the position to which assigned and for Employes Baltutis and Richter to do likewise, thus all three men were, effective December 26, 1968, released from the positions they were occupying and transferred to the positions they had made application for and assigned thereto by bulletin.
There. are no claims in behalf of Employes R:chter and Baltutis before your Board, nor were there any claims progressed on the property in their behalf as a result of Carrier's actions in the instant case in requiring these men to remain on each of their former positions for a period even longer than that required of Claimant LaRue.
There is attached as Carrier's Exhibit "G" copy of letter written by Mr. L. W. Harrington, Vice President-Labor Relations, to Mr. H. C. Hopper. General Chairman, under date of July 30, 1969.
OPINION OF BOARD: Beginning November 21. 1968, when employe Richter, a Road Caller, exercised his seniority to displace another employe as Chief Yard Clerk Position 08700 it became necessary to bulletin his open position. When the successful bidder, L. Baltutis, was assigned that position, his position was bulletined (November 29, 1968) and was filled by the senior applicant D. LaRue, who then was assigned by bulletin on December 6, 1968. However, the Carrier hold all the involved employes on their former positions until December 26, 1968 when tram'^r was effected of those employes involved, D. LaRue is the sole Claimnit here. alleging violation of the Agreement, Rules 2, 3, 7 and 9 quoted below:
The Board can find no violation of Rules 2, 3, or 7. The substance of the claim rests upon 9(e) alone and requires a determination of whether the Carrier was justified in deferring the transfer of the Claimant from his old position to the new position for which lie was the successful applicant for the period from December 6 to December 24, 1968.
The Organization claims the mandate of 9(e) to transfer "promptly" must be taken in its most literal sense, which is to say "immediately," and the claim requests a compensatory remedy beginning December 6, 1968, the date on which LaRue was assigned to the new position by bulletin.
The Carrier argues that it acted in conformity with 9(e) under the circumstances, in that the transfers were effected promptly, and were made as soon as could reasonably be expected. It is contended that the test of "reasonableness" must be applied to the requirements of 9(e) and that such is the intent of the Agreement. In support of its position, it points to the fact that the series of bulletins for openings which ended with D. LaRue's assignment to a new position on December 6, then and only then could it be known that it would be necessary to employ and train an individual to augment the calling operation created by the loss of. Richter, the successful applicant as Chief Yard Clerk which started the chain reaction. This is succeeded in doing by December 26 on which date the transfers were made.
Contrariwise, the Organization argues that the need for an additional employe for the calling operation was known from November 11, 1968 when Richter bid on the Chief Yard Clerk position, and certainly no later than November 21 when he was assigned such position by bulletin. The Carrier should then have sought to hire and train the individual known to be ultimately required. Until such trained employe was available, the Carrier should and could have covered the calling operation with the existing work force scheduled on an overtime basis, after making the transfers with the promptness required of it under the terms of Rule 9(e).
Certainly, the word "promptly" as it appears in 9(e) is an inexact expression susceptible of a variety of interpretations. This Board believes that it was not the intent of the parties to connote that word with the word "immediately" but rather that transfers should be made without undue delay, applying the test of "reasonableness," looking to the circumstances present in
any given situation. The same language was similarly construed in Award No. 18 by Special Board of Adjustment No. 452.
On its face it would appear that a delay extending from November 11, 1968, when Richter bid outside the calling operation, or even November 21 when he was declared assigned to such new position, to December 26, 1968 in effecting the transfer of all three employes is unreasonable, if one is to agree with the Organization that the Carrier should then, at the outset, have sought to add the necessary personnel.
In its defense of this charge of negligence, the Carrier points to the fact that, following LaRue's assignment to his new position by bulletin on December 6, it then became necessary to bulletin his vacated position which was done on that date. On December 16 it was declared in bulletin 212 that there were no applicants for the Road Caller position 0960 to be vacated by LaRue, Accordingly, it was after this bulletining that the Carrier set about to hire and train additional personnel. Thus, by its statement of the chronology of events, the delay in making transfers extended from December 16 to December 26, 1968.
One fact is abundantly clear on which both parties agree. The Claimant did not suffer any monetary loss by reason of the delay. During the period from December 6 to December 24 he received the same rate of pay on his old position as he would have received on his new position. In fact, more days of work opportunity were available to him on his old position than on the new during this period.
Rule 9(e) does not provide for a penalty of punitive damages nor are they called for here by a flagrant, and unexplained delay by the Carrier in making the transfers, if indeed the Board has the authority to assess such damages.
In the absence of uncontroverted proof based on a preponderance of the evidence put forward by the Organization, and looking at the entire record before us, this Board must find that the Carrier acted with reasonable promptness in transferring the Claimant to the job he was awarded through bid.
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