Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26907
THIRD DIVISION Docket No. MW-26381
88-3-85-3-105
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly returned
Messrs. Q. T. Branson, L. Bolzenius and B. Haggard to the hiring eligibility
list as contemplated by Memorandum of Agreement dated August 27, 1980 and
Memorandum of Agreement dated July 26, 1982 (System File SSW-S-3/396-54-A).
(2) The Agreement was also violated when Mr. Q. T. Branson was
awarded laborer positions as advertised by Bulletins #24 and #25 dated June 1,
1983 and June 15, 1983, respectively, and when Mr. L. Bolzenius was awarded a
foreman position as advertised by Bulletin #25 dated June 15, 1983 and when
Mr. B. L. Haggard was awarded a foreman position as advertised by Bulletin #23
dated May 16, 1983 (System Files SSW-P-744/395-73-A; SSW-B-14/395-74-A;
SSW-P-745/396-86-A).
(3) The three (3) most senior employes listed on the hiring eligibility list as contemplated by Memo
and July 26, 1982, who were eligible and available for the positions listed in
Part (2) hereof shall each be compensated for all wage loss suffered as a
result of the violations mentioned in either Part (1) and/or Part (2) hereof
and the Memorandums of Agreement mentioned in Parts (1) and (2) hereof shall
be properly applied."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has ,jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 26907
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88-3-85-3-105
The instant case deals with the alleged violation by the Carrier of
various provisions of a number of Agreements signed between it and the Organization in 1980 and 1982
assigned three employees from the Rock Island Railroad after it had purchased
portions of trackage of that former Carrier.
The Board has closely studied the progression of the claim(s) filed
by the Organization relative to this dispute on property. The Board is hesitant to frame Awards on p
associated with claims. But when the relief requested by the Organization on
the property is at variance with that requested before this Board, the Board
must seriously question its jurisdiction over such a case under Section 3,
First (i) of the Railway Labor Act.
The instant case deals with a number of claims which are sometimes
treated by the organization as one, and at other times as separate claims. In
response to an internal memo of the Carrier which is dated April 4, 1983, the
General Chairman wrote to the Regional Engineer of the Carrier at Kansas City
on May 17, 1983, that he took "...exception" to the returning of the names of
fellow employees C. L. Earnest, B. L. Haggard, L. Bolzenius and Q. T. Branson
to the hiring list for eligible former Rock Island employees
...."
This letter
states that the Carrier should consider "...(the) claim as continuous under
the provisions of Article 15(2) of the current Agreement until such time the
appropriate corrections are made." This file is designated SSW-S-3. For
reasons which are unclear the name of Mr. Earnest disappears from the record
but the remaining three employees reappear in further correspondence and are
ultimately named in the Statement of Claim before the Board. On June 24,
1983, the General Chairman sent three concurrent pieces of correspondence to
this same Regional Engineer, Kansas City. These represent overlapping claims
dealing with the three remaining employees first mentioned in the May 17,
1983, letter. One letter, designated File SSW-B-14, requested that the assignments of the three empl
The other two letters on that same date respectively deal with employees
Bolzenius and Haggard (File SSW-P-744) on the one hand, and employee Branson
(File SSW-P-745) on the other. Both of these letters request "...all lost
wages in behalf of...senior furloughed employees listed on the appropriate St.
Louis Southwestern Seniority Roster who (were) deprived of employment as the
result of the Carrier's arbitrary action taken in this matter." Throughout
the handling of these claims on the property after that point, the organization never again specific
two latter claims filed on June 24, 1983. The Board may speculate that this
might have been because there were no furloughed employees on the roster in
question after these claims were filed. Such speculative conclusion is reasonably warranted because
were furloughed employees after the disputed assignments were made. Such is
but vaguely intimated by the General Chairman in his letter to the Carrier's
Labor Relations' Officer under date of February 24, 1984. This letter, however, which is not directl
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88-3-85-3-105
part of the record before the Board nevertheless, alludes to a Bulletin issued
by the Carrier with the observation that some of the positions on it went
unassigned. The General Chairman then states in this letter that he himself
was eligible for assignment and would appreciate being permanently hired. He
ends this letter by stating that if the Carrier would contact him before April
1, 1984, he would be available "...for permanent employment." The record is
unclear. The Submissions of either party offer no clarifications on this
question of the furlough status of employees on the roster in question after
the claim(s) were filed.
By the time the claim(s) were filed with the Board the relief
requested no longer specifically dealt with senior furloughed employees, but
only with compensation for the " ..three most senior employees ...on the hiring
eligibility list ...for all wage loss suffered as a result of" the alleged
violations by the Carrier when employees Branson, Bolzenius and Haggard
received their assignments. Absent evidence of furloughed employees, and
absent even reference to such by the filer of the claims after June 24, 1983,
the Board must conclude that he materially changed the relief sought to the
more general proposition of "...all wage loss suffered" by senior employees
when the case was filed before the Board. This more general proposition must
be construed by the Board to include not only loss because of potential furlough status, but also lo
never raised during the handling of this case on the property. Such could
include, for example, wage differential losses by the three most senior
members on the seniority list if employees Bolzenius, Haggard and Branson had
received assignments to higher rated positions to which the three most senior
members had prior eligibility, etc. Secondly, the June 24, 1983 claim explicitly requests that the a
foregoing be "...rescinded" because of alleged Agreement violations when they
had received their assignments. That relief request is changed by the time
these claims reach this Board and such, which was an integral part of the File
SSW-B-14 claim filed on June 24, 1983, is no longer part of the claim(s).
The reasoning used by the Organization in requesting relief in this
case is obtuse. In attempting to reconstruct the logic of the change in the
claim from original filing to the time these claims reached the Board, in view
of all of the evidence of record, it appears that the organization may have
realized that there were no furloughed employees after it filed relief for
them in 1983, on the one hand, and that it furthermore realized that there
were extreme logistical problems inherent in its request that the Carrier
...rescind" the assignments of the three employees on the other hand. The
Organization cannot be faulted with respect to the latter since there were
extreme logistical complexities intrinsic to the nature of the claim(s) themselves. In either case t
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submitting the claims to the Board, for a third variation of relief which it
may have felt would have been reasonably workable if the Board would have
issued a sustaining Award. By going this route, however, the relief and thus
the claims themselves underwent a metamorphosis which the jurisdictional
standards of the Board cannot support: The conclusions reached by Second
Division Award 6657 are applicable to the instant case. In that Award the
Board stated:
"A review of the claim as it was handled on
the property and as submitted to this Board
reveals that the claim as originally submitted
was changed on the property and further amended
when it was presented to this Board. It is our
opinion that the claim now before us is substantially at a variance with the claim handled
on the property. Consequently, we are left no
alternatives other than to conclude that the
claim is procedurally defective as it violates
Section 3, First (i) of the Railway Labor Act,
compelling a dismissal without reaching the
merits thereof."
(Also Third Division Awards 13235, 20279.) The Board is left with no other
reasonable course but to dismiss these claims on the basis of the precedent
cited above. In so doing, it offers, therefore, no conclusions relative to
the merits of the claims.
A W A R D
Claims dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest.
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 17th day of March 1988.