The Third Division consisted of the regular members and in addition Referee Elizabeth C. Wesman 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, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein. Form 1 Award No. 40472
At the time this dispute arose, Claimant M. L. Peace was assigned to a Signalman position on Gang 2686. On January 29, 2006, the Claimant bid on Bulletin No. 948, Signal Foreman, Gang No. 2695 at Eagle, Colorado. The position was not assigned to the Claimant; rather it was assigned to M. A. Stecki.
By letter of February 15, 2006, the Organization filed a claim on Peace's behalf. It maintained that the Claimant's seniority was greater than Stecki's and, therefore, the Claimant was wrongfully denied the position in question. The Carrier denied the Organization's claim on March 28, 2006. It asserted that Stecki was not junior to the Claimant and attached personnel records for both men.
The Organization appealed the Carrier's denial by letter of April 12, 2006. In its appeal, the Organization pointed out that the Claimant's earliest continuous seniority date in the Signal Department was August 30, 1976, while the earliest continuous seniority date for Stecki was December 6, 2007. The Organization further contended that pursuant to the Side Letter dated May 5, 2004, employees were permitted to bid on zone gang positions relying on their earliest continuous dates; and under that letter, the Claimant had greater seniority than Stecki and should have been awarded the position.
In its June 9, 2006 reply to the Organization's appeal the Carrier contended that the Organization had misread the provisions of the May 5, 2004 Side Letter. It quoted the second paragraph of the letter as follows:
The Carrier contended that the Claimant's seniority date as a Signalman on the zone roster was nearly one month later than Stecki's - May 4, 1979 for the Claimant vs. April 16, 1979 for Stecki. The Carrier insisted that it had complied with the agreement language in Rule 52 because each man had established a zone 1 roster date for the Signalman position. It asserted that it was the zone roster date for the Signalman position, not the seniority dates for their respective Assistant Signalmen positions (in which the Claimant had an earlier seniority date than Stecki) that should be applied in awarding the Signal Foreman position.
The Board carefully reviewed the record. It is not surprising that the Parties' interpretations of the May 5, 2004 Side Letter are in diametric opposition. The language of the letter is not clear. Nor do the documents relating to each man's employee record provide any clarification. The Claimant's "date of service" is listed on his record as May 23, 1976. His "Signal Zone 1" seniority date as an Assistant Signalman is fisted as August 30, 1976, and his "Signal Zone 1" seniority date as a Signalman is listed as May 4, 1979. Stecki's "date of service" on his employment record is listed as December 6, 1977. His "Signal Zone 1" seniority date as an Assistant Signalman is also listed as December 6, 1977 (identical to his date of service) and his "Signal Zone 1" seniority date as a Signalman is listed as April 16, 1979.
Neither Party presented any evidence explaining why there are different "Signal Zone 1" seniority dates for each man's service as an Assistant Signalman as opposed to his service as a Signalman. Nor is there any indication in the record of
Organization had the burden of providing the needed clarification in this case. It did not meet that burden. Accordingly, the Board finds that the instant claim must be denied on the basis of failure of proof.
Form 1 Award No. 40472This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.