Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31791
Docket No. CL-31989
96-3-94-3-367
The Third Division consisted
of
the regular members and in addition Referee
John C. Fletcher when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (AMTRAK)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Organization (GL-11061) that:
Local time claim in behalf of Mr. Jacob D. Wills, Extra Baggageman,
headquarters Union Station, Washington, D.C., that:
(a) The Carrier violated the Rules Agreement effective September 1,
1976, as amended and revised particularly Rule 3-C-1 and others when on
April 9, 1992, Claimant Mr. Jacob Wills attempted to displace junior
employee Mr. B. M. Campbell from Position I-WTBM-R-2, hours 5:30
a.m. to 1:30 p.m.. with relief days of Saturday and Sunday and was told by
Foreman J. Curry to report to Union Station at 6:00 a.m.. April 10, 1992,
(Claimant's fifth day) to make his bump. Because this position actually
started at 5:30 a.m. Claimant Mr. Wills would have been too late to make
displacement and was forced to bump extra board to protect his seniority.
(b) Claimant is senior, qualified and would have displaced Mr.
Campbell, if given proper information from Foreman Curry.
(c) Claimant J. D. Wills now be allowed time and one-half for any day
beginning April 10, 1992, that he works any hours different from 5:30 a.m.
to 1:30 p.m., time and one-half for any hours worked on Saturday and
Sundays and 8 hours straight time for any days, Monday through Friday
that Mr. Wills is given a relief day.
(d) Actual amount of money due to be agreed upon at the time Mr.
Wills is put on the proper position.
Form 1 Award No. 31791
Page 1 Docket No. CL-31989
96-3-94-3-367
(e) Claim filed in accordance with Rule 7-B-1
of
the current agreement
and is to continue each and every day until Mr. Wills is put on proper
position."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and ail the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice
of
hearing thereon.
The Claimant was displaced from his position on Monday, April 6, 1992. Under
the parties' amended Displacement Rule he had five calendar days to exercise
displacement rights to another assignment. The Organization contends that on
Thursday, April 9, 1992, the Claimant indicated that he desired to displace Baggageman
Campbell from position I-WTBM-R-2, with hours between 5:30 A.M. and 1:30 P.M.,
Saturday and Sunday as rest days. At that time, the Organization says the Claimant
was told to report at 6:00 A.M. on April 10, but this reporting time would have been an
illegal bump, because the practice in place requires that employees be notified before the
start
of
their shift that they are being displaced.
The Carrier says that the Claimant did not seek to effect a displacement at ail on
April 9. Instead, when the Claimant was picking up his paycheck that afternoon, the
Carrier states that upon being asked if he wanted to make his bump then and there (as
his time to do so was running out) the Claimant responded by stating that he did not
know what he would do. According to the Carrier, it was not until the next day that the
Claimant, for the first time, called in and asked to bump onto position I-WTBM-R-2.
His bump was not allowed because, first, displacements must be made in writing, and
second, April 10 was the Claimant's last day of displacement rights, and he was required
to displace on a position prior to the starting time of such position.
Form 1 Award No. 31791
Page 3 Docket No. CL-31989
96-3-94-3-367
The documentary evidence in this record does not support the Carrier's position
as to the events, and is conflicting with respect to what was said and when it was said.
if it was said. First, with respect to the documentary evidence, in this record is a preprinted Disp
he desired to displace onto Position No. 1-WTBM-R-2 effective April 10, 1992. The
Displacement Notice indicates that Position No. 1-WTBM-R-2 had a starting time of
5:30 A.M.
On April 24, 1992, the Organization filed the initial claim in this matter. Part (a)
of the Statement of Claim, above, was included in the initial claim to the Carrier's
General Baggage and Express Supervisor. His May 4, 1992 response supports the
allegation made in part (a) that the Claimant was advised to report at 6:00 A.M. (which
would have then been an illegal bump). That response reads in part:
"On April 9, 1992, Claimant J. Wills attempted to displace Mr.
Bartha Campbell from position 1-WTBM-R-2, 6:00 a to 2:00 p and to
report to Union Station at 6:00 a on April 10, 1992 to make his bump.
Please be advised that Mr. J. Wills came to my office at 12:15 p on
April 9, 1992 and was instructed to make his bump before the end
of
Mr.
Campbell's shift this date or to be here before the start
of
his shift the
following day April 10, 1992. Specific instructions were given to Mr. Wills
to make sure he made his displacement on a timely bass in order for him
to protect his seniority. His reply was 'I'll think about it.'"
Fourteen months later, though, the displacement attempt
of
April 9, 1992 is being
overlooked. In Carrier's Director Labor Relations denial dated July 15, 1993, the
situation occurring on April 9 and 10, 1992 is described as follows:
"With respect to the facts involved, there is no dispute that Mr. Wills' was
bumped from his baggage position on Monday, April 6, 1992. There is also
no dispute to the fact that Mr. Wills had five (5) calendar days or until
April 10, 1992 to make his displacement to another position or revert to his
guaranteed extra board. The claimant came to Union Station around 3:30
p.m. on Thursday, April 9, 1992 for the purpose of picking up his pay
check. Baggage Supervisor V. Roth advise that when he gave the
Claimant his check he (Roth) advised Mr. Wills that his displacement right
were almost gone and asked him if he wanted to make
2
bump at that time.
Form I Award No. 31791
Page 4 Docket No. CL-31989
96-3-94-3-367
According to Supervisor Roth, the claimant replied 'I don't know what I'm
going to do' and departed the station. On Friday, April 10, 1992 at
approximately 10:00 a.m. the Claimant called the baggage office in an
attempt to make his displacement over the telephone. The position he
attempted to displace on was held by junior employee B. Campbell whose
tour of duty began at 5:30 a.m. on April 10, 1992. The Claimant's
displacement attempt was properly declined by Foreman Curry for two (2)
reasons:
1. Displacements must be in writing and are not taken on the
telephone;
and
2. Since April 10 was the Claimant's last day of displacement
rights, he was required to displace on a position prior to the starting
time
of
such position."
As can be seen from review
of
the above, there are critical differences between
what was written in the initial response to the claim
of
the Organization and the
Carrier's final (on the property) response. But, there is more. Several
of
the Carrier's
writings in the intermediate processing contain additional factual errors as to events as
well as to timing. And all will agree that timing is a crucial and critical element in a
correct resolution of this matter. To this end, the Organization's writings on timing
have been relatively consistent. For example, on January il, 1993 the Chairman of the
Division Protective Committee wrote:
"Mr. Wills was bumped by Mr. Pritchard on Monday April 6, 1992.
Now on Thursday April 9, 1992 Mr. Wills informed Foreman Curry that
he was going to displace Mr. B. M. Campbell from position 1-WTBM-R-2
wit hours of 5:30 a.m. to 1:30 p.m. with rest days of Saturday and Sunday.
At this point Foreman Curry told Mr. Wills to report to Union
Station on April 10, 1992 at 6:00 a.m. (WiV's 5th day.) Because this
position actually started at 5:30 am. Wills would be too late to make
displacement and thus was forced to bump onto the extra board to protect
his seniority."
Form 1 Award No. 31791
Page 5 Docket No. CL-31989
96-3-94-3-367
When this consistencv is considered along with a
copy of
a Displacement Notice
dated April 9 1992 correcily iden dying the job that the Claimant desired with the
correct starting times, the Board credits the evidence and argument
of
the Organization
over that
of
the Carrier. The complete record forces a single conclusion; the Claimant
was improperly denied displacement onto Position 1-WTBM-2. His claim has merit
AWARD
Claim sustained.
ORDER
77tis Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 26th day
of
December 1996.