Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27749
THIRD DIVISION Docket No. MW-26861
89-3-85-3-631
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
(Northern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
compensate Foreman T. Weaver for wage loss suffered and for mileage expense
incurred on and subsequent to November 5, 1984 during which time he was improperly displaced from hi
C-TC-2176/MG-4951).
(2) Because of the aforesaid violation, Foreman T. Weaver shall be
allowed sixteen (16) hours of pay at his straight time rate, be compensated
for the difference in mileage expenses he incurred traveling to the position
on which he displaced at Wyoming Yard at Grand Rapids and the distance to
Waverly Yard from November 5, 1984 to November 16, 1984 and he shall be compensated for the differen
position at Benton Harbor, Michigan and the distance to Waverly Yard continuing from November 21, 19
Waverly Yard at Holland, Michigan."
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.
Claimant was regularly assigned as a Foreman at Waverly Yard at the
time of the instant dispute. On October 25, 1984, Foreman Robert Brown was
cut off due to force reduction on the Grand Rapids Division. Foreman Brown
advised his supervisor on October 26 that he would displace the Claimant at
Holland, Michigan. Mr. Brown then went on vacation from October 29 through
November 2 and displaced Claimant on Monday, November 5. Claimant Weaver
thereafter exercised his seniority to a position at Grand Rapids, Michigan.
Form 1 Award No. 27749
Page 2 Docket No. MW-26861
89-3-85-3-631
Two weeks later, he was displaced by a senior employee. As a result, Claimant
then exercised his seniority to a position at Benton Harbor, Michigan.
The Organization subsequently progressed the instant claim on the
basis that the Claimant was not timely displaced by Mr. Brown, in violation of
Rule 7(c). The Organization requests that Claimant be returned to a position
at Holland, Michigan, that he be paid the two days lost following his displacement by Mr. Perry, and
Rule 7(c) states as follows:
"(c) Such displacement rights shall be exercised
within ten (LO) calendar days, unless the employee
is prevented by illness or is on vacation or leave
of absence when force reduction occurs, in which
case the employee will be permitted and required to
exercise such rights immediately upon reporting for
duty, except as provided in Rule 6(c)."
There is no dispute that the Claimant's displacement by Mr. Brown was
beyond the ten (10) calendar day time limit provided in the foregoing rule.
The question, and the gravemen of this dispute, is whether the Claimant's
subsequent displacements were consequences reasonably flowing from the initial
displacement, and, if so, whether damages or other relief are owing to the
Claimant.
The parties have not referred the Board to any precedent awards which
have previously addressed these issues and we find no language in the Rule
itself which specifies the proper remedy when displacement rights are not exercised within the requi
Organization has not proven that the Rule 7(c) violation was the proximate
cause of the Claimant's subsequent displacements. Put another way, there is
no evidence that, absent the one day violation due to Mr. Brown's untimely
displacement, the sequence of occurrences following Claimant's displacement
would have been any different from that which in fact occurred. Therefore, we
must rule to deny this claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: .
Nancy J. D %#0'-' Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.