The Third Division consisted of the regular members and in addition Referee Robert E. Peterson when award was rendered.
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, 1334.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This dispute involves the contention of Claimant Y. D. Smith that after being awarded a position based on seniority, she was thereafter denied the position for "some unknown reason," with the Carrier giving the position to a new employee who had no seniority at the time, and that such Carrier action constituted unjust treatment.
On September 1, 2004, the Carrier determined that it had a need for an employee to fill a position of Clerk/Shipper-Receiver in its Purchasing and Materials (P&M) Department at Cleveland, Ohio. The Carrier thus posted a bulletin advertising the position to then current employees. Position No. 0191-R02 went no bid when the advertisement expired. The P&M Manager thereafter filed a request with managerial officials for authority to fill the position with a new hire. Approval of the new hire request was subsequently granted, and the Human Resources Department commenced the hiring process. Form 1 Award No. 38380
On November 5, 2004, the position was offered to a new hire, J. R. Lauren. In acceptance of the position, Lauren was provided opportunity to give three weeks notice to his then employer of a termination of that employment relationship. Lauren reported for work on the Clerk/Shipper - Receiver position on November 29, 2004 and his name was placed on the clerical seniority roster.
Due to administrative error, and notwithstanding the P&M Department had requested a new hire to fill the no bid position, the position continued to be advertised through September and October, without bid. However, when it was again advertised on November 17, 2004, for the 12'h time, the Claimant, the incumbent of a Relief Clerk position in Cincinnati, Ohio, bid for and was awarded the position by bulletin dated November 24 effective November 25, 2004. When the advertising error came to fight on November 28, the bulletin and award were cancelled. On November 29 a Manpower Support Clerk spoke with the Claimant and informed her of the administrative error and the reason for her removal from the position.
On December 17, 2004, the Claimant submitted a formal complaint to the Manager Manpower Support alleging that her seniority rights had been violated and she had been unjustly treated. The Carrier conducted an Unjust Treatment Hearing in pursuance of Rule 44 on January 31, 2005, with the Claimant and a representative of the Organization in attendance.
That the Claimant had been fully informed as to the reason for the bulletined position being cancelled is evident from the transcript of the Unjust Treatment Hearing. A statement from the Clerk who had put out the bulletin was read into the record. This statement, addressed "To Whom It May Concern," reads as follows:
The Hearing transcript does not show the Claimant to have taken exception to the content of the above quoted statement.
In presentation of the basis for her complaint, the Claimant asserted a belief that "the job was in the computer;" she got the job "fair and square" under the applicable Rules Agreement; and, in taking her off the position and giving it to a new hire she was unjustly treated. In this latter regard, the Claimant presented into the record a 15-page document that she had compiled, offering the following as a part of her testimony:
As concerns this latter Organization argument, the record shows that upon receipt of the Claimant's December 22, 2004 letter, arrangements were made for an Unjust Treatment Hearing. The Unjust Treatment Hearing was held on January 31, 2005, or over five weeks after the complaint of unjust treatment was filed. In an opening statement, the Hearing Officer clearly stated that it was being convened pursuant to Agreement Rule 44. Neither the Claimant nor her chosen representative is shown to have expressed any exception at the Hearing to the complaint being handled as an unjust treatment matter under the provisions of Rule 44. Further, it is evident that opportunity was provided at the Hearing for a full and complete showing of facts that formed the basis for the complaint and the rationale for the actions of the Carrier.
In the circumstances, it must be recognized that by pursuing the complaint as "unjust treatment" under Rule 44 there was mutual acknowledgment that the issue was not being progressed as a compensatory claim under Rule 45 of the Agreement. This, notwithstanding that various Agreement Rules were introduced or referenced at the Unjust Treatment Hearing in support of the complaint. Form 1 Award No. 38380
As to the merits of the complaint of unjust treatment, there is no question in study of all arguments and contentions of the parties that this case differs somewhat from the usual failure to assign the senior bidder to an advertised position. Although the Board is aware that the Carrier should have handled certain actions differently under the Agreement, we find that the Claimant was not discriminated against or unjustly treated. In making this decision recognition is given to the fact that the Carrier had attempted to fill the position at issue commensurate with the Agreement. It was only after the position went no bid by then current employees that the Carrier took steps to fill the needed position by hiring a new employee. Unfortunately, through unforeseen or unusual administrative error, the position continued to be advertised while the Carrier was recruiting and placing a new hire on the position. It must also be recognized that it was only after a 12th and inadvertent bulletining of the position, or over two months after the initial posting had gone no bid, that the Claimant then decided to bid for the position in alleged desire to return to Cleveland after reportedly having been away from that work location for 12 years.
Accordingly, based on the record in its entirety, the Board concludes that an affirmative award is not warranted. This decision is not to be construed as establishing a precedent in cases where different factual circumstances are involved. Certainly, had the Claimant made a more timely exercise of seniority such as, for instance, placing a bid for the position prior to the recruitment and hiring of a new employee or not having waited more than two months until the posting of a 12`e bulletin to bid on the position, the Board's decision in this case may well have differed.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.