Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37199
Docket No. MS-36861
04-3-01-3-438
The Third Division consisted of the regular members and in addition Referee
James E. Nash when award was rendered.
(Gary E. Neumann
PARTIES TO DISPUTE:
(Canadian Pacific Railroad Company
STATEMENT OF CLAIM:
"This is to serve notice, as required by the Uniform Rules of
procedure of the National Railroad Adjustment Board effective
March 12, 1999 of my intention to file an Ex Parte Submission
within 75 days covering an unadjusted dispute between me and the
Canadian Pacific Railroad and the BMWE System Office General
Chairman, involving the following.
This letter of intent is hereby submitted on behalf of G. E. Neumann,
employee of Soo/CP Railroad and member of Soo System BMWE
Union, Lodge 1488, Glenwood Minnesota. The accused violation of
Forced Reduction (Exhibit # 1) Rule 12(a) according to Soo/CP
Railroad and Rule 12(b) according to Evan Ostlund, General
Chairman, BMWE System Office, per work agreement between the
CP Railroad company and BMWE Union dated October
16`
1987.
G. E. Neumann feels that there has been a rule 7(c) violated.
(Exhibit #2 attached) This violation started when G. E. Neumann,
who was bumped from his permanent position as Foreman on the
Hankinson Maintenance Crew. He was told by Guy Hugo, CP
Railroad, Senior Staffing Representative and Evan Ostlund, General
Chairman, that there was no place to displace himself in Zone 4, so
he displaced a temporary position in Zone 6. G. E. Neumann wants
to state that according to the letter (Exhibit #3) file: Roster.97, that
G. E. Neumann was doing what Rule 12(b) stated and that is
protecting his seniority in the Zone that he was employed in which
was Zoned 6 at the time. (Exhibit #4) first paragraph, states that the
Form 1 Award No. 37199
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temporary Roster was protested and upheld, there was no registered
protest according to Rule 7. (c) (Exhibit #2) General Chairman
Ostlund states that this was a clerical error. We dispute this because
of no protest proof. File G-165.00 (exhibit #5) from E. E. Howard
Manager of Track Maintenance for CP Rail states this issue should
be handled between the Union and Brother Neumann. Brother
Neumann asked that a hearing be held so that he could sit down face
to face and talk the situation over, but was denied according to the
letter dated August 9, 1999 from Guy Hugo, Senior Staffing
Representative for CP Rail (Exhibit #6) attached. Brother Neumann
called BMWE System office and Guy Hugo to see where and if he
could displace himself according to Rule 12, Forced Reduction
(Exhibit #1 Attached) He could not so he took the next course and
took a temporary position according to Rule 12(b). (Exhibit #1)
Brother Neumann was told to read Rule 12(b) and act accordingly,
as he did. He bid on Temporary positions in Zone 6 where he was
employed at the time the permanent position of Assistant Foreman,
Glenwood, Minnesota was made available. (Exhibit #7 Attached)
Brother Neumann was still working a Temporary Position up to
November 23, 1998, when he bid on System bulletin #223,
Permanent (sic) Foreman Position at Paynesville, Minnesota. At the
time of Bulletin #223 was received G. E. Neumann was still working
Temporary and free to Bid or displace any position he desired
within a temporary position, according to Rule 4 (j). (Exhibit #8)
We have been at a standstill since October 27, 1998 and still there is
no satisfactory conclusion. There are many members out here,(sic)
who would like to know if Rule 7 pertains to some people and not to
others."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 37199
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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.
Records show that the Claimant established seniority as a Temporary Section
Foreman on September 17, 1992. He was awarded the position of Permanent
Section Foreman at Hankinson on March 15, 1996. He was, subsequently, displaced
from that position in January 1997. Upon displacement, the Claimant bid on a
series of temporary positions.
After completion of temporary assignments, the Claimant bid on the
permanent position of Assistant Foreman at Glenwood rather than displace a junior
Foreman at Carrington; Carrington was designated as the Claimant's home zone.
Because the Claimant bid on a permanent position at Glenwood rather than
placing himself in his home zone, the Carrier advised that him that he had
voluntarily forfeited seniority date of September 17, 1992, in his home zone at
Carrington. The Carrier relied on Rule 12(a) for support. Rule 12(a) reads in
pertinent part:
"(a) Seniority rights shall govern in cases of force reduction,
abolishment, or displacement and the senior employes in the
respective ranks and groups will be retained.
Employees affected by force reduction, abolishment or
displacement, will have the right to displace junior employees. In
order to retain seniority in their highest ranks, such employees will
be required to exercise their seniority on permanent positions in the
same rank in seniority group, sub-department, and designated zone
as defined in Rule 6(b) in which employed, before displacing
employees with less seniority in the next succeeding lower ranks in
that group."
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The Claimant took the position that he had the right to place himself on any
position at any location his seniority would allow, so long as it was a temporary
position. He maintained, also, that his original seniority date of September 17, 1992,
should remain undisturbed because the Carrier could produce no evidence that it
was challenged, and because the original date appeared on the seniority roster, then,
reappeared after the roster was corrected and republished.
The parties were poles apart on overall rules interpretation, but agreed that
the Claimant was well within his rights to bid temporary jobs as he desired; but the
Carrier maintained that once the Claimant decided to place himself on a permanent
job, Rule 12(a) required placement in the designated home zone. The Carrier, then,
pointed out that the Claimant successfully bid on permanent position of Assistant
Foreman at Glenwood - zone No. 6, rather than displace onto a Foreman's position
available to him at Carrington - designated home zone No. 4.
In replying to the Claimant's insistence that his original seniority date must
remain in place because the Carrier failed to produce evidence that date was
challenged, the Carrier argued that failure to change the original date was nothing
more than a clerical error; and, that rules provide that such an error can be
corrected at any time, without protest. The Carrier relied on Rule 7 - Seniority
Rosters for support. Rule 7 reads in pertinent part:
"(c) Temporary rosters will be compiled and posted as of September
1st of each year, and will be open for corrections for a period of 90
days from date of posting. Upon presentation of proof of error by
an employee or his representative, such error will be corrected. If
no protest is registered within 90 days, the dates will stand as official
and thereafter will not be subject to protest on any future rosters,
except that any clerical errors or omissions will be corrected.
Permanent rosters including corrections will be issued January
ls`
of
the following year."
On the basis of oral arguments, and all other evidence presented to the
Board, we were unable to determine whether the Claimant's original seniority date
of September 17, 1992 was challenged as argued by the Carrier. And, while the
record does indicate that the Claimant did, in fact, exercise his seniority in zone No.
6 - where he was employed, rather than in zone No. 4 - his home zone, there were
no junior positions available to him at the time that he was required to displace.
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The Carrier cannot, then, reasonably argue that the Claimant voluntarily forfeited
his original seniority date when he bid on the permanent position of Assistant
Foreman in Glenwood - zone No. 6.
Because of indeterminable facts - on both sides - and the peculiar
circumstances of this dispute, we believe a fair resolution can be found in the middle
ground between the two positions.
The Board finds that the Carrier must restore the Claimant's original
seniority date of September 17, 1992. The Claimant, however, is not entitled to back
wages or any other compensation of any nature related to this claim.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This 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 28th day of September 2004.