Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28839
THIRD DIVISION Docket No. MW-29072
91-3-89-3-507
The Third Division consisted of the regular members and in
addition Referee Gerald E. Wallin 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 Agreement was violated when the Carrier assigned junior
employe E. Colburn instead of Mr. S. Shumaki to work as a trackman on the
SC-250 Camp Car Gang from May 18 through May 25, 1988 (System Docket MW-52).
(2) As a consequence of the aforesaid violation, Mr. S. Shumaki
shall be allowed ten (10) hours' pay at the trackman's rate for each date from
May 18 through May 25, 1988."'
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.
A significant factual dispute exists in this seniority Claim.
Claimant was recalled to service from furlough in April, 1988. He
initially failed his return to work medical examination on April 5, 1988, but
successfully passed a repeat examination on May 18, 1988.
The Organization contends the Agreement was violated when Carrier
provided Claimant incorrect information about work opportunities available to
his seniority. According to the Organization's evidence, which includes Claimant's narrative stateme
Form 1 Award No. 28839
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made frequent attempts to exercise his seniority. The Youngstown Division
Engineer's Headquarters had recently been relocated to Pittsburgh and, due to
confusion and inexperience, the assignment clerks in the Headquarters told him
that no work was available to him. The record on the property shows that a
junior employee did work sometime between May 18 and May 26, 1988. Claimant's
seniority would have entitled him to displace this junior employee if he had
been properly informed about the junior employee.
Carrier does not deny it has an obligation to provide correct information. It disputes, however, Cla
provided erroneous information. Carrier says that Claimant.wanted to wait a
few days to return to work. The Agreement allowed Claimant 10 days to exercise his seniority. Carrie
into a Vehicle Operator position on May 26, 1988.
It is the conclusion of the Board that the Claim must be sustained in
part. After careful review of the record, the Board finds the evidence to
weigh in favor of the Claimant's position. There is probative evidence in
support of the allegations of the Claim whereas the Carrier's position relies
only on the unsupported assertions of the various hearing officers. It is
undisputed that 1988 was the first year that the recall of Youngstown Division
employees was performed in the Pittsburgh office. In addition, successful
completion of the repeat examination on May 18, 1988, indicates that Claimant
was making himself immediately available. Finally, there is Claimant's unrebutted written statement
about available work.
Carrier attempted to modify the information in its June 29, 1989,
letter regarding the junior employee's start date. But the record on the
property was closed prior to Carrier's November 30, 1989, attempted modification. A procedural rule
were not part of the record on the property. The record in this matter provides no compelling basis
The record is devoid of a basis for awarding Claimant pay for May 18,
1988. There is no information which suggests that Claimant would have completed his repeat medical e
work a full day. Accordingly, Claimant shall be allowed all earnings lost
for the time worked by the junior employe for the period from May 19, 1988,
through May 25, 1988.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 28839
Page 3 Docket No. MW-29072
91-3-89-3-507
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
r
lancy J. p P-Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1991.