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.
At about 4:19 PM. on November 24, Goy received a fax displacing the Claimant from his position effective November 29, due to a bump by a senior employee. Also on November 24, the displacement information was entered in the Employee On-Line Connection ("EOC") and IVR networks available to employees 24 hours/day via telephone or computer.
The Claimant asserts that he looked at a computerized screen with the Carrier's weekend schedule and it did not show that he had been bumped. There is no Rule or obligation requiring the Claimant to view the electronic schedule.
The Claimant traveled to, and obtained lodging in, Rochelle on November 28 and reported for work at 7:30 A.M. on November 29. At that time, Goy first told him of his displacement. He was not allowed to work. The Claimant later bumped to another job. His next paycheck paid for the Thanksgiving holiday, November 29 and November 25 - 28 per diem, however, the Carrier recouped the amounts on the December 13 paycheck. Form I Award No. 40384
The Organization's February 1, 2005 claim alleged a violation of Rules 1, 2, 5, 8, 38 and Appendix B. It contends that (1) contrary to Rule 8F, the Carrier did not make a reasonable effort to notify the Claimant as soon as practicable that he had been bumped by waiting more than four days (2) the Claimant's authorized supervisor told him to report for work on November 29 (3) the improper notice prevented the Claimant from working the day after Thanksgiving holiday and receiving per diem and (4) no basis for recoupment exists because the Claimant did nothing wrong and was not paid erroneously. The Claimant seeks eight hours straight time pay for November 29, repayment of 16 holiday hours on November 25 and 26 and five days of per diem at $23/day.
The Carrier contends that (1) the Organization failed to satisfy its burden of proof (2) existence of disputed facts (whether proper notice was given) requires dismissal (3) as required by Rule 8F, the Claimant received notice as soon as practicable after another employee exercised his seniority rights (4) Rule 8 does not guarantee wage payments (5) the Claimant did not work overtime on November 24 and did not check a computer on the weekend (6) he is not due holiday pay because he did not work the day after the holiday (7) he is not entitled to per diem because he did not work on November 29 and did not use the EOV or IVR to learn pertinent information (8) the claim for damages is excessive and (9) arbitral precedent supports the Carrier.
Contrary to the Carrier's contentions, no material disputed fact exists in this record. The disputed fact alleged by the Carrier is whether the Claimant received proper notice before physically returning to work. However, as explained below, that question is not an operative fact. It is part of the ultimate fact or question raised by the claim itself: whether the Claimant should have received notice before returning to work. Moreover, there is little consistency in the Carrier's logic that the Claimant should be believed when he volunteered that he looked at the electronic information, but disbelieved when he asserts that he did not find anything there.
Rule 8F governs employees, like the Claimant, who have been bumped. It requires notice "as soon as practicable." The absence of specifics means each case must be decided on its own merits. The Rule does not require periodic computer or telephone inquiries by employees. Under some circumstances, those sources might constitute adequate notice. They do not under these particular facts. Form 1 Award No. 40384
The Claimant initiated a reasonable inquiry about his status with the appropriate person. He was told that he had not been bumped and to report for work as scheduled after his holiday and scheduled days off. He was not told that his status might change or to check electronic information in the meantime. Absent evidence of good reason that contact would have been especially difficult, these unequivocal instructions oblige the Carrier to issue, or at least attempt to issue, a correction when contrary information was received shortly thereafter. As it is, the Claimant was misled, innocently but detrimentally, by the Carrier's failure to update important new information that easily could have been communicated in the four subsequent days before his return.
The Claimant is entitled to be made whole until he was properly notified. He shall be paid 16 hours for the Thanksgiving holiday and eight hours for November 29, 2004. However, $23.00 per diem is granted for one day only.
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.