NATIONAL RAILROAD ADJUSTMENT BOARD
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
:
(Burlington Northern Railroad
Company
( (former St. Louis-San. Francisco Railway Company)
STATEMENT OF CLAIM : "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the position of tract:
foreman at Demopolis, Alabama as advertised by Bulletin :io. 2? dated :a· 72,
1930 was awarded to an applicant Junior to Track Foreman F. L. Lee (System
File B-1131).
(2) The position of track foreman at Demopolis be awarded to Track
Foreman F. L. Lee and he shall be allowed X1401.60 (9344 miles @ 150 per mile)
because of the violation referred to in Part (1) hereof."
OP E1IO'N OF BOARD: On. May 12, 1980 the Company issued a position bulletin
(No. 29) advertising a Track Foreman position and the
bulletin stated that application should be sent to "the undersigned, where
they will be received up to 1200 Day 27, 1980." the Carrier received a telegram indicated that it wa
day for receipt of bids. However the document did not contain a sigrxture or
other information assertedly required by the scheduled Agreement and therefore
it was not accepted. The position was awarded to an individual who was ,junior to
the Claimant.
In denying the claim, the Carrier specifically pointed out that when
the current Agreement was negotiated the parties discussed the fact that the
Carrier would not accept "wire" bids because there had been problems i= the cast
when people had indicated they were not actually the individuals who had forwarded
the bid and also because wire did not contain the necessary info=.ation, etc.
On the property, the Oroasization^. indicated that "wire" bias '^a-re bee^.
accepted "all over the ·..System" in the rast a=d that neither the .^_-eneral
Chairman nor the :Inployehad been advised ;hat bids would no longer be =cce_ ._.
in that manner.
In response, the Carrier reminded the Organization that the Carrier
r oT·ides a sample form for maki ng application and that such an application i s
-ecuire:7 1:. every iota=ce and it denied that bids sent by wire are acceraabl=_
and it denied that such bids were considered in m=king assig^nents. --_ a,:..'._.io=,
:he Carr _er
_MS4
StS that,.
o'3
occasions in t'_"_° -as-'Jen :J=r°_
bids ·.T;=re
file;.^n,_.,c~
==IJye additiJr.lily filed a bid S1i_J On t_ apr0`r°_ =v_^.".: bearin=:: h
1S
per uonal
siFratu_re he was not assirred to the vacancy.
Award ::,tuber 24172 Page 2
:he Rule 37 of the .agreement merely specifies that applications
for bulletined positions or vacancies will be accepted by the officer issuing
the bulletin
,nail
72:00 noon on the fifteenth calendar day from the date of
the bulletin, with certain exceptions not here applicable. The bulletin advertising the position is
^hus it is incumbent upon the Board to determine if, under those circumstances,
an application forwarded by telegram is acceptable or if, in some manner, the
discussion which accompanied the negotiation of the language in question or
the asserted past practice controls the dispute.
We find that the Axards given to us as precedent are of little value
because they speak in terms of untimely applications and other matters in which
the applicant failed to follow certain appropriate procedures.
In our consideration we have not been unmindful of Appendix
6
of
the Agreement which sets forth various forms as samples far use in submitting
bids however we are unable to find anything that mandates the use of those
sample forms.
The Board is not unmindful of the Carrier's positions and contentions
in this case and we recognise certain of the equitable concerns that the Carrier
has set forth, however we are equally aware that a senior employe has been
denied a position.
Assuming, without deciding, that the parties did discuss the fact
that "wire" bids would not be accepted during a negotiation there is certainly
nothing stated in the collective bargaining agreement that would warn an individual applicant
an individual that he or she must use a specified sample.
The statement of past practice concerning "wire" bids is helpful
only in a "negative sense" but there is absolutely no evidence of record to
suggest to this Board that this Claimant had any knowledge that the "wire"
bid was not acceptable and in the absence of such knowledge we are of the view
that the bid should have been accepted or at least the applicant should have
been notified of the need to send additional information and/or verification.
To be sure, the Carrier can control this type of situation in the future by
specifying the type of an application which must be submitted, but under the
facts of this case we feel that the Claimant was not on notice that his "wire"
bid was not sufficient. We will sustain the claim to the extent that we find
gnat the Agreement was violated when this Claimant was not awarded the pertinent
position and the _2hploye shall be made whole by the Carrier for not having been
awarded the position and he should be compensated for any actual expenses incurred;
but not for speculative expenses.
FrIM INGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
Award Nimmber 24172 rage
3
Docket Ntmmber
h!W-24362
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
That the Agreement was violated.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSME:`T HOARD
By Order of Third Division
ATTEST: Acting Executive Secretary
National Railroad Adjustment Board
-
B:y
Rosemarie Brasch - Administrative assistant
Dated at Micago, Illinois, this 15th day of February
1983.