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.
In study of the record the Board finds several conflicting statements and omissions of necessary documentation during the handling of the claim on the property that make it difficult to pass judgment on certain aspects of the claim. The Board will, therefore, confine its decision to unrefuted statements as contained in correspondence and exhibits of record.
The claim as advanced involves a determination as to whether the Carrier violated Rule 18 of the Agreement when it unilaterally removed the Claimant's name from the seniority roster and terminated his employment relationship without notifying him in writing that he had been recalled to service from furlough, notwithstanding the Claimant had voluntarily bid for and been awarded a temporary vacancy on a position of Janitor at Shelby, Kentucky.
Contrary to the Organization's contentions, the Carrier asserts that although the Claimant was on furlough, in submitting an actual bid on a bulletined position, and being awarded that position as the senior furloughed employee, the Claimant accepted responsibility for being available to report for work without written notice. Thus, the Carrier contends that by failing to report for the assignment that he was Form 1 Award No. 38376
awarded as the senior bidder, the Claimant was properly terminated pursuant to what it calls the self-executing provisions of Rule 3(f) of the Agreement, which states:
A bulletin advertising the Janitor position as a temporary vacancy, with a fiveday workweek of Saturday through Wednesday, 4:00 P.M. to 12:00 A.M., issued under date of June 30, 2004. Although nothing of record shows Rule support for an employee on furlough having a right to bid for a position, it is undisputed that the Claimant requested his local Organization representative to submit a bid for the position on his behalf. When the bidding cycle closed on July 6, the Claimant was declared the senior bidder. A bulletin awarding the Claimant the position `vas posted on July 7, 2004.
Circumstances surrounding how and when the Claimant was notified to report for work to cover the Janitor position are not entirely clear. Carrier letters of record in denial of the claim state in part:
The Organization disputes the Carrier's contention that the Claimant was notified of his being the successful bidder by the Manpower Support Clerk, albeit there does not appear to be a dispute that the Claimant was notified by the local representative of the Organization of such fact. The Board also finds it worthy of note that whereas the Carrier states that after being notified that he was the successful Form 1 Award No. 38376
bidder the Claimant "immediately" asked for a leave of absence, a letter the Carrier placed into the record from the Claimant requesting a leave of absence is dated July 28, 2004, or three weeks after the bulletin awarding the position was posted. This letter, addressed, "To Whom It May Concern," reads:
Nothing of record shows that a formal response was made to the Claimant's letter of July 28, 2004.
There is no question that a literal interpretation of Rule 18 requires that furloughed employees be notified in writing of a recall to service, and nothing of record shows this Rule or requirement to have been interpreted or applied to forgo such written notice for the purpose of filling a temporary vacancy. It must, therefore, be held that in not providing written notice of a recall to the Claimant, the Carrier violated Rule 18.
At the same time, it concerns the Board that Claimant requested and was permitted to place a bid for the temporary position and that he did not thereafter report for work upon being awarded the position without benefit of a formal recall. Certainly, there is some benefit to both the Carrier and its furloughed employees in permitting an employee on furlough to bid for a known temporary vacancy, as opposed to each time a temporary vacancy exists that senior furloughed employee be issued a recall letter that might require him or her to leave outside employment or risk the loss of seniority rights in a failure to return to service for an indeterminate length of time.
In the particular circumstances of record, the Board concludes that the Claimant should have his name and seniority date restored to the seniority roster. However, it being evident that by his own actions the Claimant was not available for work, we find that he is not entitled to compensation or health and welfare benefits as claimed. The Board also notes that the Clamant would be well advised to recognize that when and if he is again recalled to service, or a leave of absence Form I Award No. 38376
request is denied, he is required to return to active service, and that a failure to report without satisfactory reason for not doing so may be viewed as cause for a termination from service.
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.