NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-24501
PARTIES TO DISPUTE:
Norfolk and Western Railway Company
STATEI-ENT OF CLAIM: "This is to serve notice, as required by the rules of the
National Railroad Adjustment Board, of Marvin J. Sinwald's
intention to file an ex parts submission on Dec. 24, 1981 covering an unadjusted
dispute between Marvin J. Sinwald and the Norfolk & Western Railway Company
involving the question:
Unjust Treatment under Rules 28 and 10 of the Clerks Master Working
Agreement."
OPINION OF BOARD: Claimant entered the service of the former Pennsylvania
Railroad in 1953. In 1964 the Sandusky Line of the Pennsylvania
Railroad became part of the Norfolk and Western Railway Company and Claimant became
an employe of that Carrier. In 1980, as a result of the abolishment of his
position, Claimant exercised his seniority displacement rights under Rule 20 of
the Master Agreement of Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employes, and displaced to the T.O.F.C.
(Piggyback) Clerls position effective July 28, 1980. On August 8, 1980 purl-ant
to Rule 10, Claimant was notified that he was disqualified from the position at
the T.O.F.C. ramp offices.
Rule 10-Qualifying, states that:
"(a) An employee awarded a bulletin position or who exercises
displacement rights thereon shall be allowed forty (40) working
days with pay in which to qualify except when it is evident he
will not qualify for the position he may be removed from the
position at any time before the expiration of the qualifying
period of forty working days."
The Carrier notes that Claimant was removed from the position of clerk
at the T.O.F.C. ramp after ten days because of lack of aggression: in making
decisions on correct procedures, failure to take a yard count and other reasons
which in effect was costing the Carrier "untold dollars".
Rule 28-Unjust Treatment states:
"An employee who considers himself unjustly treated, otherwise
than covered by these rules, shall have the same right of
investigation, hearing, appeal and representation as provided
in these rules..."
Award Number
24380
Docket Number MS-24501
Page 2
The key to the problem herein is whether Claimant has a right to a
hearing under Rule 28 to review his
disqualification in
accordance with Rule 10.
We need not linger long on this dispute inasmuch as the same arguments have been
made by the same Carrier and Organization involving the same Rules Agreement in at
least five prior Awards of Public Law Board No.
1790.
In each case the Board
held in the negative, that is, Rule
28
applies only when the unjust treatment
is not covered by a rule. Given that situation these five prior awards are res
judicata to this case. (See Third Division Award
19007
- Ritter). Accordingly
this claim must be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and
all the evidence, finds and holds:
That the parties waived oral hearing;
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 not violated.
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Third Division
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this
13th day of May 1983.
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