Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32022
Docket No. MW-32217
97-3-95-3-19
The Third Division consisted
of
the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly
terminated the seniority of Mr. J. C. King from the Bridge and
Building and Track Department Seniority Rosters by letters dated
November 11 and 15, 1993 (System File 1993-42/013-293-15).
(2)
.As
a consequence of the violation referred to in Part (1) above, the
Claimant's seniority shall be reinstated with all other rights
unimpaired and he shall be compensated for all wage loss suffered
as a result of the Carrier's actions beginning November I I and/or
15, 1993 and continuing until he is returned to service and/or his
seniority is reinstated."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all 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.
Form 1 Award No. 32022
Page 2 Docket No. MW-32217
97-3-95-3-19
Parties to said dispute were given due notice
of
hearing thereon.
On April 9, 1991, Claimant established seniority in Carrier's Bridge and Building
(B&B) Subdepartment. It is unrefuted that Claimant had been on furlough status for
a period of 365 days and had less than three years' seniority at the time this dispute
arose. It is the position of the Organization that the Carrier precipitated his being on
furlough by contracting out B&B work in violation
of
the Agreement. The Organization
cites Third Division Award 31346 in support
of
its position. In that Award, the Board
held that Carrier had violated the Agreement when it contracted out B&B work
beginning on December 5, 1991. Claimant was one
of
the employees who received
compensation for the days worked by the contractor (December 5, 1991 though January
8, 1992). The Organization contends that in view
of
Award 31346 and subsequent
occurrences of Carrier contracting out B&B work, Claimant should not have been
subject to furlough.
The Carrier maintains that even allowing for the compensation awarded by the
Board in the aforementioned Award, Claimant would have legitimately been terminated
under the self-executing provisions
of
Article IV of the October 17, 1986 National
Agreement. .-article IV reads in pertinent part as follows:
"...The seniority
of
any employee whose seniority under an
agreement with BMWE is established after the date
of
this Agreement and
who is furloughed for 365 consecutive days will be terminated
if
such
employee has less than three (3) years of seniority ...."
The Carrier is correct that Article IV is self-executing. An employee with less
than three years' seniority who has been furloughed for more than 365 days will be
terminated by Carrier. However, the Organization has asserted that the Carrier
"greased the skids" by erroneously contracting out work for which Claimant would have
been eligible. The Board finds no showing on this record beyond conjecture by the
Organization to demonstrate that Carrier precipitated Claimant's termination through
violations of the Agreement. None of the five alleged violations has been supported.
In light of the foregoing, even accounting for the time between December 5,1991
and January 8,1992 for which Claimant was compensated as a result of Award 31346,
Claimant had less than three years' seniority (from April 4, 1991 to November 11, 1993)
and had been furloughed for more than 365 days. Thus, under the provisions of Article
Form I Award No. 32022
Page 3 Docket No. MW-32217
97-3-95-3-19
IV. the Carrier legitimatelv terminated him from service. (See Third Division Awards
23287, 26841, and 23931.)
AWARD
Claim denied.
RD
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 6th day
of
May 1997.