Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28222
THIRD DIVISION Docket No. MW-28346
89-3-88-3-100
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr., when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when junior Trackman E. Martinez,
instead of senior Trackman L. King, was recalled from furlough effective April
21, 1986 (System File TJ-6-86/UM-11-86).
(2) As a consequence of the aforesaid violation, Mr. L. King shall
be allowed eight (8) hours of pay at the trackman rate for each work day and
holiday beginning April 21, 1986 and continuing until the violation is corrected."
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.
The Claimant was a furloughed Trackman at the time of the Claim.
Employees were called back from furlough, including at least one junior to the
Claimant. The Organization argues that the Claimant was improperly denied
recall at this time.
Rule 36 (a) reads as follows:
"(a) When forces are increased or vacancies
occur, senior employes in the respective ranks,
seniority groups, and seniority districts shall
be given preference in employment, except that a
trackman laid off as a result of force reduction
Form 1 Award No. 28222
Page 2 Docket No. MW-28346
89-3-88-3-100
or displacement will not be notified to return
to service under this rule on other than the
section on which last worked unless, within ten
(10) calendar days after such employe is laid
off or displaced, he notifies the Division
Engineer, with copy to the General Chairman, of
such other section or sections as he desires to
work upon."
The work involved herein was on "other than the section on which [the
Claimant] last worked." He had not given the specified notice that he wished
to be recalled for "such other section or sections." On this basis, the Carrier argues that the Clai
return from furlough.
The Organization points out that the Carrier has been in the process
of realigning section territories, and that there were five such sections at
the time the Claimant was furloughed and three at the time the dispute arose.
The Organization contends that there was an accepted "practice" in view of
this reduction, under which Trackmen no longer filed the preference notices
specified in Rule 36(a). This alleged "practice" is not supported by any
documentation. In view of this, the Board is without authority to vary the
terms of the Rule, which is unambiguous. The Carrier further argues that it
had knowledge of the Claimant's unavailability during the period in question.
This, however, is without consequence in the face of the Rule, which is subject to enforcement unles
The Carrier denies such modification has occurred.
With this conclusion, it is unnecessary to examine the Carrier's
argument as to the alleged untimeliness of the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy Wer - Executive Secretary
Dated at Chicago, Illinois, this 4th day of December 1989.