Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29094
THIRD DIVISION Docket No. MS-29093
92-3-89-3-488
The Third Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(United Steelworkers of America
PARTIES TO DISPUTE:
(The Lake Terminal Railroad Company
STATEMENT OF CLAIM:
"Mr. Jesus Nieves is grieving the fact that the Company violated his
seniority rights, specifically Rule 6: SENIORITY, when they (the company)
unilatterally elected to furlough him (J.Nieves) and keep in service an employee junior to him (J.Ni
service while Mr.J.Nieves is on furlough is Mr. I. Lowstetter, #261, Extraforeman, in the Maintenanc
Maintenance of way dept.
J. Nieves #256, Seniority date-2-12-73
L. Lowstetter, #261 Seniority date-2-27-73
RULE 6: SENIORITY, Sections (c) and (f)l, reads as follows;
'(c).The principal of seniority will operate only in case of
promotions, vacations, furloughs and newly created jobs or
positions, and in choice of vacation period.
(f). 1. Promotions, transfer, furloughs and recalls from
furloughs shall be upon the basis of seniority.'
Mr. Nieves was furloughed on Sept. 23, 1988. Mr. Lowstetter continued
working in the position of extra-foreman in the Kaint.of Way Dept. The Unions
position on the position of extra-foreman is that the person holding such
position is still a bargaining unit, dues paying member of the Union and as
such, shall be subject to all of the applicable rules of the Agreement between
The Lake Terminal Rail Road Co. and the United Steelworkers of America.
Remedy Requested: Mr.Nieves be immediately re-instated from furlough
and that he be compensated for all lost time (including overtime) in addition
to all lost benefits.
In the event that Mr. Nieves is not immediately re-instated from
furlough, that he be paid all monies lost and all lost benefits that he is
kept on furlough."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
Form 1 Award No. 29094
Page 2 Docket No. MS-29093
92-3-89-3-488
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 had been furloughed from his position as a Burner on
September 23, 1988. His Claim Is that another employee who was working as an
Extra Foreman and who was junior to the Claimant should have been replaced i,y
a more senior qualified employee. This sequence of actions would have permitted the Claimant to cont
The Board has carefully reviewed the record and finds that the Claim
must be denied. The Extra Forgman position is supervisory and is not a part
of the bargaining unit. Therefore, it is not subject to the seniority provisions of the Contract. Th
contractual language was settled in favor of the Carrier (Second Division
Award 1351).
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. r -.Executive Secretary
Dated at Chicago, Illinois, this 23rd day of January 1992.