PUBLIC LAW BOARD 180
(MW-CGO-77-31
Case No. 6
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employees
and
Norfolk and Western Railway Company
STATEMENT OF CLAIM:
1. The carrier violated the effective working Agreement
dated February 1, 1951; when it dismissed claimants
Aaron Johnson and Freddie White on February 18, 1977.
2. The carrier reinstate the claimants with seniority
and all other rights' unimpaired, and they be compensated
for all monies loss suffered by them.
FINDINGS:
This Board upon the whole record and all the evidence
finds that:
The carrier and employee; involved in this dispute are respectively
carrier and employees within the meaning of the Railway Labor Act,
as amended.
OPINION:
Claimants were Laborers on the RF-3 Rail Gang in the
Calumet Yard, Chicago, when, as of December 31, 1976, according
to the Carrier,.their positions were abolished. Under the terms
of Rule 5(a), according to the Carrier, the Claimants were ob
liged to take formal, written action, indicating their avail
ability and interest in recall:
"Employees laid off by reason of force reduction
desiring to retain their seniority, must file with
their superior officer, a written statement indicating their desire, and,setting out their address.
This statement must be filed within ten days after
being laid off. They must immediately notify their
superior officer of any change of address. Employees
failing to comply with these provisions or to return
to service within ten days for a regular bulletined
~rwd.
a~ iii
posti.tioiefter having beer notifiJo in
writing by their superior officer will forfeit all seniority unless a leave of absence
is obtained under the~provisons of this
agreement.
No such letters were forthcoming and consequently they care
considered to have forfeited their seniority and were not entitled to recall. According- toy the Organization,- the Claimants
never occupied a status-as employees requiring their filing
the notice of availability;and interest heretofore cited. Per
the: Organization, they were "casual employees" who were called
on a day-to-day basis and thus retained their rights for recall
without the need for formal notice.
We take note of the self-executing nature of Rule 5(a)
which does not make any specific-reference to an employees
status at time of layoff. .We also are cognizant, of the penalty
aspect- of this. rule if an employee-fails to comply or respond
where a "regular bulletined position" is concerned, but we are
unable to relate this aspect of the Rule to the Claimants'
status at time ofElayoff. rn that regard, while the Organiza-
tion asserts that the Claimants' status was "casual" in nature,.
even if this- was construed. to be related to this case,, there is
no showing by the_Organization on the record that the Claimants
did, indeed, occupy such status.
While it maybe that such lack of notice was merely an
~urd. a8-
oversight by the Claimants; we conclude thaPthe Rule -- which
was, after all, negotiated by the parties -- is, indeed, selfexecuting and the failure of the Claimants to comply compels this
Board to leave the Carrier's actions to stand as implemented.
AWARD
Claims are denied.
.1;
Y`u(
ames F: Scearce
C
Neutral Member
G. C. Edwards W. E. LaRue
Carrier Member Organization Member
Dated this
/off
day of l ~~ at .;L~ C'
1
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