Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35869
Docket No. MW-35614
01-3-99-3-536
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned the section
foreman position advertised by Bulletin ORD05646 at The Dalles,
Oregon to junior employe D. D. Craft and refused to allow employe
T. L. Thompson to exercise his seniority rights to said position
beginning on April 2, 1998 and continuing (System File J-9820
52/113894).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant T. L. Thompson shall now be compensated at ` . . the
section foreman's rate of pay starting on April 2, 1998, as if he was
worked because Mr. Craft was inappropriately assigned Bulletin
ORD05646. All overtime worked by Mr. Craft beginning on April
2, 1998, is claimed in behalf of Claimant Thompson. All benefits
are claimed as if Claimant Thompson was rightfully assigned to The
Dalles Section Foreman position on April 2, 1998. This claim is
considered continuous until such time as Claimant Thompson is
rightfully assigned Bulletin ORD05646 and is allowed to return to
service."'
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. 35869
Page 2 Docket No. MW-35614
01-3-99-3-536
Parties to said dispute were given due notice of hearing thereon.
The Claimant initially established seniority under the Agreement in 1974.
Additional classification seniority was established in 1978 and 1979. In 1984, the
Claimant was promoted to the non-Agreement position of Assistant Roadmaster and
later to the non-Agreement position of Manager of Track Maintenance.
By letter dated October 7, 1997, the Carrier dismissed the Claimant effective
October 1 following a positive drug test for methamphetamine administered on
September 19,1997. The random test sample was collected four days after the Claimant
was released from EAP treatment. The right of the Carrier to dismiss the Claimant
from the non-Agreement position for cause is not in question.
On April 2, 1998, the Carrier refused to award a bulletined Foreman vacancy to
the Claimant as noted in the Statement of Claim. This claim followed shortly thereafter.
The operative facts in this dispute present a pattern similar to those involved in
Third Division Award 35868. If the pattern was substantially identical, the disposition
here would be the same. However, the instant record reveals a significant difference.
It does not establish that the Claimant provided the five-day notice required by Rule
22(c). This notice requirement reads as follows:
"Employes desiring to return from official, supervisory or excepted
positions must give management and the General Chairman five (5)
calendar days' advance written notice before returning. * * *" (Emphasis
added)
As written, thefive-day notice is a mandatory condition precedent to the retention
of seniority and the ability to return-to-service under the Agreement. The remainder
of Rule 22(c) strongly suggests that the five-day notice must be provided during the 60
calendar day period after vacating the non-Agreement position. If not so provided, the
context suggests that the Carrier is entitled to treat a former employee as voluntarily
resigning from further Carrier service and relinquishing any previously retained
seniority under the Agreement. No bargaining history was presented on this record to
demonstrate that a contrary interpretation was intended by the parties.
Given the Claimant's failure to provide the requisite notice, the Carrier was not
remiss in refusing to award him the bulletined position in question.
The instant record also attempted to raise contentions about the Claimant's
entitlement to EAP treatment. They were not raised until more than one year after the
Claimant's dismissal and are outside the scope of the instant claim. Consequently, we
have made no findings thereon.
Form 1 Award No. 35869
Page 3 Docket No. MW-35614
01-3-99-3-536
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, Illinois, this 18th day
of
December, 2001.