Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27609
THIRD DIVISION Docket No. SG-27096
88-3-86-3-155
The Third Division consisted of the regular members and in
addition Referee Edwin H. Benn when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the Brother
hood of Railroad Signalmen on the Consolidated Rail
Corporation (Conrail):
Seniority Roster protest by S. A. Klick, that the Carrier be required
to remove the Inspector and Foreman Seniority of B. B. Huling from the Seniority Roster No. 7 in acc
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 waived right of appearance at hearing thereon.
By letter dated June 29, 1982, Claimant, who is also the Local Chairman, filed a protest requesting
Seniority District ,#7 roster for Inspector-class (a) and Foreman-class (b).
According to Claimant's protest, "Mr. Huling did not hold any bulletined
postioned [sic] in this seniority district that I am aware of. If he is
entitled to these dates on our roster, then I request some proof to back up
these dates." The particular roster showed Huling as holding seniority dates
of June 2, 1976, in classes a and b. The protest was forwarded by the Organization to the Carrier by
Carrier on July 19, 1982.
By letter dated January 26, 1983, pursuant to Paragraph 11 of
Appendix R, the Carrier submitted a proposed joint response to the Organization denying the protest
on June 2, 1976, and Huling displaced into an Inspector position in May, 1979,
each position being in Seniority District 7. The proposed response was not
acted upon by the Organization.
Form 1 Award
No. 27609
Page 2 Docket
No. SG-27096
88-3-86-3-155
By letter dated October
26, 1983,
in response to a discussion with
the Organization, the Carrier noted the seniority dates and further stated
that Huling was promoted to a non-agreement position as Assistant Supervisor
C&S at Harrisburg, Pennsylvania on July
13, 1979,
and held that position
beyond the effective date of the then-current agreement. According to the
Carrier, Huling held both Inspector and Foreman positions within the territorial limits of Seniority
7
prior to September 1,
1981,
established
seniority in those positions in that district pursuant to Appendix R and,
although promoted, nevertheless retained and accumulated seniority.
The matter apparently remained dormant for slightly less than two
years. After further discussion on August
19, 1985,
with the Organization,
by letter dated October
15, 1985,
the Carrier maintained the propriety of
Huling's seniority and supplied the Organization with a May 1,
1976,
bulletin
advertising a Foreman's position within the district with a notation showing
that Huling's name appeared next to the title of such position. The Carrier
further forwarded to the Organization a copy of Huling's application for that
position.
By letter dated October
29, 1985,
the Organization rejected the
offered proof as insufficient asserting that a bulletin awarding Huling the
position was necessary to establish the Carrier's assertions. The Organization further stated
District
#13
and once Huling vacated the Foreman/Inspector position to accept
another job, he relinquished his seniority on the foreign district and only
held seniority on his home district. Positions of the parties did not change
as reflected in their later correspondence concerning the dispute.
We find that the Claim must be sustained.
First, we must reject the Carrier's assertion that the Claim is
barred by the doctrine of laches. While the Claim is indeed old - a fact that
we find troubling - and while this Board has readily recognized that a party
cannot sleep on its rights (see Third Division Awards
26301, 25946, 25110),
another basic doctrine prohibits us from considering the Carrier's laches
argument. The laches argument was never raised on the property and as such
may not be considered by us at this time. See e.g., Third Division Award
20920.
Second, aside from its laches argument concerning the asserted delay
by the Organization in the processing of the dispute, the Carrier also argues
that the initial protest was untimely filed asserting that the seniority at
issue was established in
1976
and was not protested until
1982.
Like the
laches argument the timeliness of the filing of the protest was not raised on
the property and therefore cannot now be considered by us. However, even
assuming that we could consider such an argument, we find it lacking in merit.
Recently, where the timeliness issue concerning the filing of a seniority
protest was raised on the property, we barred seniority protests as being
Form 1 Award No. 27609
Page 3 Docket No. SG-27096
88-3-86-3-155
untimely filed where employees waited to file the protests through the posting
of several seniority lists under another agreement. See Third Division Awards
27313, 27314, 27315, 27316, 27317, 27318. This case does not fall into that
same category. Here, there is no showing that the initial protest was not
timely filed after the posting of the seniority list. In this case, the
protest was dated June 29, 1982, and was forwarded by the Organization to the
Carrier by letter dated July
lo,
1982, and was received by the Carrier on July
19, 1982. In its submission, the Carrier states that the effective Agreement
governing the dispute is the September 1, 1981 Agreement. Paragraph 11 of
Appendix R of the Agreement (which the Carrier states "was inserted by the
parties to override the normal Rule concerning Roster protests
...
[and] was
in effect only for the first roster published under the new Agreement of
1981") states that the initial seniority rosters "shall be open to protest for
a period of one (1) year from the date posted." Thus, we can only conclude
that Claimant's June 29, 1982, protest was timely filed. The delay in this
case came not in the filing of the protest, but in the processing of the
protest, which, for reasons stated above, cannot now be considered by us since
the laches argument was not raised on the property.
Third, for similar reasons, we must reject the argument that specific
rules were not cited. Like the laches and timeliness arguments, that argument
was also not raised on the property and is not now properly before us.
Fourth, with respect to our alleged lack of jurisdiction due to the
failure of the Organization to sign the proposed joint decision, we do not
agree that signing of the joint decision is a condition precedent to further
processing of this Claim. The Carrier argues that "[a]ppeal can only be made
when the joint committee reaches an impasse [and t]he Rule does not provide
for the progression of the dispute, when one of the parties to the joint
committee, without justification, does not sign the decision." However, the
cited language in Rule 11 relied upon by the Carrier does not support the
Carrier's argument. Paragraph 11 cited to us merely states that the parties
"shall jointly decide such protests." Thus, on the record before us, we can
only conclude that the fact that the Organization did not sign the joint
decision after the seniority protest was filed, at best, indicates that the
Organization disagreed with the Carrier's position which then resulted in the
further processing of this dispute.
Finally, with respect to the merits, it appears undisputed that in
1979 Huling vacated his Foreman/Tnspector position and took a non-agreement
position at Harrisburg, Pennsylvania. The statement contained in the Organization's October 29, 1985
letter) that Huling's "craft seniority lies within Seniority District #13" is
not disputed. Paragraph 10 of Appendix R is clear and mandatory. "Seniority
in class (a), (b), (c), or (d) in other than his home seniority district shall
be forfeited when he leaves the seniority class in which he is working."
[Emphasis added]. By this record, Huling left classes (a) and (b) in Seniority District x7 when he t
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88-3-86-3-155
language of the Rule, Ruling forfeited his seniority in District #7. We note
that in its October 26, 1983, letter to the Organization, the Carrier stated
that "Both the former P.R.R. Agreement and the Agreement of February 10, 1976,
provide an employee promoted to a position not covered by the Agreement retains and accumulates seni
pressed in the Carrier's submission before us. Therefore, we have not been
shown in this record by the arguments made to us how those provisions remain
viable in light of the clear forfeiture language found in Paragraph 10 of
Appendix R.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J ~gr - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of November 1988.