Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35717
Docket No. MS-35542
01-3-99-3-456
The Third Division consisted of the regular members and in addition Referee Donald
W. Cohen when award was rendered.
(James F. Barton
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Date my New York dock became effective and not being sent copies of bulletin
so I could return to work. Remedy sought: Put to work as Extra Board Clerk
at Kansas City with all seniority right restored."
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 Gas jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
On January 5, 1990, the Carrier entered into an Agreement with the Mid-Michigan
Railroad and the Transportation Communications International Union regarding the rights
of employees affected by the acquisition by Mid-Michigan of certain portions of the Carrier's
St. Joseph Branch and other trackage. The relevant provisions of the Agreement provided:
"Article H-Employee Conditions
Section 1 Except as otherwise provided herein, an employee affected by this
transaction will be afforded the benefits as set forth under the
New York Dock Conditions (a copy attached as Attachment 1) or
any other protective benefits applicable to said her employees.
Form 1 Award No. 35717
Page 2 Docket No. MS-35542
01-3-99-3-456
Section 2 Employees affected by this transaction shall be afforded the
following options:...
(b) Accept employment with Mid-Michigan Railroad
Company (see Attachment 3) and transfer to the MidMichigan Railroad ....
Section 4 An employee hired by the Mid-Michigan Railroad Company and
transfers to said Company the following will apply:
(a) An employee transferring to the Mid-Michigan Railroad
Company will have their name and seniority date
removed from all Union Pacific seniority rosters.
(b) An employee transferring to the Mid-Michigan Railroad
Company will be considered on a leave
of
absence from
the Union Pacific and may, after a period
of
twelve (12)
months from data
of
transfer, return to the UP on which
'they held seniority by bidding on a vacancy advertised
under the provision
of
Rule il or by exercising an
"accrued displacement" right under the protective period
to which the employee is entitled under the New York
Dock Conditions (maximum six (6) Years).
(c) An employee transferring to the Mid-Michigan Railroad
Company will be covered by the New York Dock
Conditions or any other protective benefits to which the
employee is entitled under New York Dock or any other
protective benefits applicable to said employee will be
assumed by the Union Pacific Railroad Company."
The Claimant opted to work for the Mid-Michigan Railroad and did so commencing
on or about May 15, 1990, at which time he received six years of protection under the New
York Dock Conditions. In the latter part
of
1990 he was furloughed. He did not exercise his
"accrued displacement" rights and displace to the Union Pacific Railroad but, rather,
remained in furloughed protected status for the full six-year period.
The Claimant testified that his letter
of
February 15, 1997 set forth the chronology
of
events which transpired over the six-year period while he was furloughed. Throughout this
time a number
of
events occurred which placed the Claimant on notice that he was required
Form 1 Award No.
35717
Page
3
Docket No.
MS-35542
01-3-99-3-456
to proceed in a more formal fashion by actually bidding for a job and filing a grievance in the
event it was denied. Notwithstanding, he did nothing other than make a few phone calls to the
Organization. As the six year period drew to a close he began to request bulletins, but even
then did not submit a bid for a job. It must be noted that during this entire time he remained
furloughed from Mid-Michigan and was not an employee of Union Pacific.
It is clear that the Claimant did not follow the express written provisions of Article II,
Section (b) of the Branch Line Sale Agreement by either bidding on a vacancy advertised
under the provisions of Rule 11 or by exercising an accrued displacement right during the
protective period.
AWARD
Claim denied.
ORDER
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, Blinois, this 24th day of October, 2001.