Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27649
THIRD DIVISION Docket No. MW-26656
88-3-85-3-399
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:
(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 at Urbana, Ohio a
1984 to a junior employe instead of Mr. D. D. Moore (System Dockets CR-974 and
CR-975).
(2) Because of the aforesaid violation, Claimant D. D. Moore shall
be allowed three (3) hours and twenty (20) minutes of travel time each week
and mileage allowance (100 miles each week) continuing until he is assigned to
the position referred to in Part (1) hereof or until this matter is otherwise
resolved."
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.
On May 3, 1984, a Claim was filed by the District Chairman on behalf
of the Claimant on grounds that a position which he had bid on at Urbana, Ohio
was awarded to a junior employee. According to the record, Bulletin No. 40
was posted and dated April 16, 1984. Bids were up on April 23, 1984. The
Claimant alleges that he sent his bid in on April 20, 1984, and that it was
postmarked on that date at Muncie, Indiana. The bid was not received by the
Carrier, however, until April 25, 1984.
The above facts are not in dispute. The Claimant argues that he
should have been awarded the position since his bid was postmarked prior to
April 23, 1984. The Carrier argues that the Claimant was not, and should not
be, awarded the position since his bid arrived late, or after April 23, 1984,
in its offices. As the Division Engineer put it in his denial of the Claim:
...postmarks do not count."
Form 1
Page 2
Award No. 27649
Docket No. MW-26656
88-3-85-3-399
The Rule of the Agreement which is applicable to this Claim reads as
follows, in pertinent part:
"Rule 3. Section 3: 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, headquarters, tour of
duty, rest days and designated meal period.
(b) Advertisements will be posted on Monday
or Tuesday and shall close at 5:00 P. M. on the
following Monday. Advertisement will be posted
at the headquarters of the gangs in the subdepartment of employees entitled to consideration in fill
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.
(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 at the time to fill
their places, but physical transfers must be
made within ten (10) days."
Rule 3, Section 3 states that advertisements will be posted on Monday
_or Tuesday and shall "...close at 5:00 PM on the following Monday." Bulletin
No. 40 was posted on April 16, 1984. This was a Monday. Contractually, the
Carrier was not obligated to post the Bulletin until Tuesday. By posting it
on Monday it permitted employees a longer period of time to find out about and
decide on whether they wanted to bid on the position. The Board notes that
the Claimant did not actually put his bid in the mail until April 20, 1984, as
he states. This was a Friday. The Claimant waited almost until the last day,
therefore, to submit his bid by mail. The rule of reasonableness would suggest that the Claimant sho
Form 1 Award No. 27649
Page 3 Docket No. MW-26656
88-3-85-3-399
service deliver his bid, under these circumstances, on time. It was possible
for his bid to have arrived on time, but it was not necessary that such had to
happen. The Carrier, therefore, posted the position during the longest timeperiod possible under the
position during what was almost the shortest time-period left to him prior to
the expiration of the Bulletin.
The Claimant argues that he fulfilled the provisions of Rule 3 by
having his bid postmarked during the seven (or six) day period. The Agreement
Rule does not address postmarks.
There is arbitral precedent in this industry which holds that a com-
munication by either party is "effected upon the mailing or posting thereof"
(Second Division Award 6352; also Award 3541 and Third Division Awards 11575,
13270, 16537 by reference). Without denigrating such principle (although it
is not universally held to be correct: see Third Division Award 13677), the
Board must conclude here in view of the evidence of record before it, that the
actions of the Claimant, by the manner in which he bid on the job, were tanta
mount to negligence. He effectively depended upon regular mail service to
deliver his bid over a week-end and thus unreasonably depended upon what some
Awards in the line of precedent cited above call the "regularity of the mails"
(Second Division Award 3541; also Third Division Awards 10490, 13270). Fourth
Division Award 1908 states that: ...(t)ime limitations serve an important
purpose and must be enforced in the interest of orderly process." To sustain
the instant claim would, in the estimation of the Board, be disruptive to the
interest of orderly process by establishing precedent permitting other than
reasonable application of the principle permitting postmarks to serve as
criteria for timely communications in this industry.
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 16th day of December 1988.