Award No. 40428 Docket No. MW-39858 10-3-NRAB-00003-070001
The Third Division consisted of the regular members and in addition Referee Michael D. Gordon when award was rendered.
F0404A-07 Position 30459, Group 3 Machine Operator Production Tamper with Group 2 rate of pay, on Surface Crew 382, per Award Bulletins dated April 15, 2004 and instead assigned junior employe K. Dallman (System File T D-2761W/I1-04-0213 BNR).
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.
On March 9, 1994, the Carrier wrote to the Organization regarding the parties' agreement, in part, regarding ". . . implementation of the Terms and Conditions applicable to Regional Gangs . . . [related] to . . . the exercise of seniority from the Regional Gangs by bidding . . . ." ("1994 Letter") The question and answer format in the 1994 Letter read:
2004. On April 1, 2004, the Carrier posted a number of jobs for bid, including Job 34059, a Group 3 Machine Operator on a production tamper with Surfacing Crew 382. Bids closed on April 10 and the position was to become effective on April 15.
Carrier denied his bid, because he had not served 30 days on RP-06 as required by Rule 7 Section II(1). A junior employee was awarded Job 34059. Form 1 Award No. 40428
The Organization filed a claim, citing Rules 2 and 22. It argues: (1) because the Claimant was senior to the successful bidder, his Rule 2 and 22 seniority rights have been violated; (2) his 30-day restriction ended April 13, two days before the bid job was awarded; and (3) the history of Rule 7 Section II(1)'s language, read together with the 1994 Letter, states the proper application of bid restrictions and establishes the Organization's interpretation. Asserting that the Carrier's violation was deliberate and continuing, it requests the broad remedy quoted above in its Statement of Claim.
The Carrier responds: (1) the unambiguous language in Rule 7 Section II(1) restricted the Claimant's ability to bid off of his Regional/System gang for 30 days after being assigned to the gang; therefore, his seniority never became a factor; and, moreover, there is no mention of effective bid days in relation to computing the 30day restriction; (2) the 1994 Letter is inapplicable because it was modified thereafter, originally only applied when the restricted period was 90 days and is no longer part of the Agreement because it is not listed in Agreement Appendix K; (3) the Organization's reading defeats the stability the Rule was designed to protect; (4) the Organization failed to meet its burden of proof; and (5) claimed damages are excessive and unproven because there is no proof of financial loss and, at most, there is an issue of disputed fact outside the Board's authority.
At its core, this dispute is whether Rule 7 prevents a gang employee from bidding outside the gang during his first 30 days on a gang for a position that begins after expiration of his first 30 days. If so, the Claimant's bid was fatally premature. If not, he is entitled to his bid job as the senior bidder.
On its face, Rule 7 Section II(I)'s language seems conclusive. With certain other provisions not now relevant, it first creates a 30 day maximum restriction when a gang employee may be held to the gang he is assigned. Crucially, it then states, "after such time, the employee will be entitled to bid for other jobs . . . ." Given the apparent simplicity and clarity of the phrase, strong persuasive evidence or circumstances are needed before accepting the Organization's contention that an employee is entitled to bid before expiration of the 30-day holding period. No incompatible language is found in the 1996 National Agreement. Nor is there Form 1 Award No. 40428
evidence of any contrary binding practice or arbitral precedent supporting the Organization's reading.
Instead, the Organization points to a letter written some two years before the 1996 National Agreement. Nothing indicates that it was meant to merge into or survive the unreconcilable, straight forward language in the new Agreement. To the contrary, Appendix K's failure to incorporate the document reflects a mutual understanding that the 1994 Letter lost whatever previous authority it possessed.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.