Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29196
THIRD DIVISION Docket No. SG-29487
92-3-90-3-470
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the Brotherhood of Railr
Claim on behalf of J. W. Ferneding, for the difference in what he
earned and what he could have earned, account of Carrier violated the current
Signalmen's Agreement, as amended, particularly, Rules 2-B-1 and 2-C-1, when
it refused to allow him to exercise his seniority on Seniority District No.
23." Carrier file SG-i_9. BRS file 7931-CR.
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, __nds 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.
Following five years of disability, Claimant was released by his
physician and approved _'or return to service on February 24, 1989. Prior to
his disability he had worked in Seniority District No. 20, Cincinnati, Ohio,
for his entire career with the railroad, commencing September 13, 1976. It is
proven beyond dispute on this record that Claimant never held seniority in
Seniority District No. 23, which embraced the Columbus Shop.
On April 6, 1989, notwithstanding his lack of seniority in Seniority
District No. 23, Claimant attempted to displace a junior employee in the
Columbus Shop, citing Rule 2-B-1. Carrier disallowed that request, as well as
another attempt to bump into the Columbus Shop by Claimant on April 10, 1989.
Thereafter, he displace= a junior employee in Seniority District No. 20, where
he had established and retained his original seniority, and returned to service.
Form 1 Award No. 29196
Page 2 Docket No. SG-29487
92-3-90-3-470
Claimant alleges a violation of Rules 2-B-1 and 2-C-1 and seeks to
recover the monetary difference between his actual earnings in District No. 20
and what he would have earned if allowed to displace into District No. 23.
The Agreement Rules that govern that issue read as follows:
"2-B-1. After absence due to leave of absence,
jury duty, vacation, sickness, disability, suspension
or other cause, an employee must return to his former
position, if not abolished or filled by a senior
employee in the exercise of seniority, and/or within
ten (10) calendar days, exercise seniority (including
right to promotion) to any position advertised during
his absence. An employee failing to obtain a position not requiring a change of residence shall forf
regular position has been abolished or filled by a
senior employee in the exercise of seniority, he
shall exercise seniority in accordance with Rule
2-C-1. "
.
2-C-1. (a) Displacement rights may be exercised by an employee:
1. when his position is abolished;
2. when displaced by a senior employee;
3. when returning from a leave of absence,
sickness, disability, special duty, or suspension and his former position has been abolished
or filled by a senior employee in the exercise
of seniority; or
4. when an employee is removed from a position
under Rule 2-D-1 and his former position has
been abolished or awarded to a senior employee.
5. when an employee is removed under Rule
3-E-1.
(b) An employee whose position has been abolished or who has been displaced by a senior e
or who is entitled to exercise seniority under Rule
2-A-4 shall have the right to displace within ten
(10) calendar days in any seniority class in which he
holds seniority. An employee who fails to exercise
seniority to a position not requiring a change of
residence shall forfeit all seniority."
Form 1 Award No. 29196
Page 3 Docket No. SG-29487
92-3-90-3-470
Neither of the above-quoted Rules, nor the Columbus Shop Agreezent,
provides any basis of support for this claim. Claimant's involuntary absence
during the establishment of positions in District No. 23 is immaterial to his
claim of entitlement to retroactive seniority in that district. Seniority
never was established or created by Claimant in Seniority No. 23, so it begs
the question to argue that he was entitled to "restoration" of seniority in
Columbus Shop. There simply is no support in fact, law, or contract for his
present contention that seniority be granted retroactively, "restored- or
exercised in a seniority district where it never existed.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ncy J. -Executive Secretary
Dated at Chicago, Illinois, this 7th day of May 1992.