NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-26208
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the Agreement when it awarded the trackman's
position on the AFE Gang headquartered at Greenville, Ohio as advertised by
Advertisement No. 35 dated April 11, 1983 to junior employe N. L. Reed instead
of Mr. G. R. Broughman (System Docket CR-225).
(2) Because of the aforesaid violation, Mr. G. R. Broughman shall be
compensated
'...eight hours a day five days a week from the effective date of April 25, 1983, and until this mat
OPINION OF BOARD: Certain facts are not disputed. The Carrier advertised a
vacancy for a Trackman position at Greenville, Ohio in Ad
vertisement /I35 of the Columbus Division. According to the bulletin and the
rules bids had to be submitted by 5:00 p.m. on April 18, 1985. Rule 3 Section
3 is controlling and reads:
"Advertisement and award.
(a) All positions and vacancies will be advertised
within thirty (30) days previous to or within twenty
(20) days following the dates they occur. The advertisement shall show position title, rate of pay,
period.
(b) Advertisements will be posted on Monday or Tuesday and shall close at 5:00 p.m. on the following
of the gangs in the sub-department of employees entitled
to consideration in filling the positions, during which
time an employee may file his application.
(c) Application for new position or vacancy advertised
under this Rule may only be made by active employees and
must be prepared on Form CT-88, with receipt attached
thereto, properly filled out, and filed with the official
whose name appears on the advertisement, who will detach
receipt, sign and return same to the applicant.
Award Number 26601 Page 2
Docket Number MW-26208
(d) Awards will be made and bulletin announcing the name
of the successful applicant will be posted within seven
(7) days after the close of the advertisement.
This Rule shall not be construed so as to require the
placing of employees on their awarded positions when properly qualified employees are not available
fill their places, but physical transfers must be made within ten (10) days.
(e) An advertisement may be canceled within seven (7) days
from the date advertisement is posted.
(f) An employee who desires to withdraw his bid or application for an advertised position or vac
request, in writing, with the official whose name appears on
the advertisement within seven (7) days from the date the advertisement is posted."
The Claimant submitted a bid for the position via U. S. Mail. The
envelope was postmarked April 15, 1985. However, it was date stamped as received in the Division eng
the position to a junior employee.
The Carrier's argument is that the postmark is irrelevant and that it
was the Claimant's responsibility to assure delivery. Along these lines the
wording on the bid form seems to contemplate personal delivery.
In times past, when seniority district and operating divisions were
small the Carrier's position may have been reasonable. However, as a furloughed employee residing 10
mail. In fact, the ultimate awardee also submitted his bid by mail on April
15. On the other hand, and as a general matter, the Carrier can't be expected
to nullify awards once made just because a bid filed before the deadline is
received after the deadline. It isn't reasonable under such circumstances to
put 'Humpty Dumpty' back together again.
However, it is reasonable under these unique circumstances to expect
the Carrier to have treated as valid a bid clearly submitted before the deadline but received after
the time the bid is received.
This is a reasonable application of the Rules given the workings of
the modern railroad and the wonders of the U. S. Post Office. It is reasonable since it balances app
administrative practicalities of making one award. Of course, this makes it
incumbent on the employee to get his bid in as soon as possible so that the
bid is not only postmarked before the due date but received prior to the actual awarding of the job.
If the employee cuts it "too close" he does so at his own peril.
Award Number 26601 Page 3
Docket Number MW-26208
This raises a critical factual question and that is--what point in
time the award notice was actually issued. The Organization in its submission
claimed the job was awarded on April 20, 1983, notably after the receipt of
the Claimant's bid. However, this assertion cannot be confirmed in any of the
correspondence on-the-property before the appeal to the Board. Accordingly,
it would be improper to sustain the Claim on a factual assertion which had no
foundation in the record properly before the Board.
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 27th day of October 1987.