' PUBLIC LAW BOARD N0. 2142
Case No. 16
Docket No. MW-1097
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Illinois Central Gulf Railroad
Statement Carrier violated the effective Agreement on or about January 17, 1977, by
of
unfairly and arbitrarily pulling Claimant out
of service for
his alleged
Claim failure to exercise his displacement rights.
2. Claimant, Claude Mimes, shall be returned to service and shall be com
pensated for all lost wages commencing with December 12, 1976, up until he
is actually returned to service.
Findings The Board, after hearing upon the whole record and all evidence, finds that
the parties herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, that this Board is duly constituted by Agreement dated
January 23, 1978, that it has jurisdiction of the parties and the subject matter,
and that the parties were given due notice of the hearing held.
Claimant Trackman's position was abolished December 16, 1976. Claimant,
apparently checked with the Division Engineer's office on December 20, 27
and 28, 1976 to determine if there were any jobs available to him. He was
advised "there was no place for him". In fact, on December 28, 1976, a Mrs.
Hedleston, who worked in the Division Engineer's office, after informing him
that there was no place to work typed out a letter protecting his seniority,
which Claimant signed.
Claimant was also advised by Mrs. Kaler on December 30, 1976 that he was being
assigned to a position which was expected to commence work on January 3 or
January 10, 1977. However, when he received no notice to go to work Claimant
returned to the Superintendent's office, on January 6, to sign up for his
unemployment benefits, at which time he ascertained that the position to which
he had been assigned December 30th was cancelled. Claimant was advised at
Award No. 14
Page 2
that time that'. there were three younger men then he working at Water Valley,
Mississippi, which he could roll in on. Mrs. Kaler advised Claimant that she
had called three of the ten senior employees who were furloughed, and that they
had indicated they were going to go to Water Valley to roll in. In such
circumstances Claimant left the Superintendent's office with the understanding
that there were no junior employees left that he could roll in on. The following
week Claimant received a letter from the Division Engineer dated January 7
advising that he lost his employee relationship as a result of his failure to
comply with Rule 30(e). Rule 30 provides:
(a) Employes will have the right, except as provided in paragraph
(b) hereof, to displace the employees junior in the service... in
any rank in which they hold seniority, provided they are competent
to perform the duties of the employees displaced and that such
displacement rights are asserted within fifteen days from the
date affected. When force is increased, they will return to their
former positions, except as otherwise provided in this agreement.
(b) Employees who assert their seniority displacement rights in
lower ranks as provided in paragraph (a) may continue to work in
such ranks if they desire, ....until a shortage of employees occurs
in
the higher rank from which they were furloughed.
(c) Employees, when laid off or displaced, holding positions as
machine operators in the Roadway Department, will retain seniority
in the class and rank in the sub-department from which advanced
and must exhaust displacing rights in the Roadway Department before
returning to the sub-department from which advanced and displacing
any junior employee in any class in which seniority is maintained.
(d) When bulletined positions are abolished and restored within
60 days or less, the employees will have the privilege of returning
to former positions, providing they have not displaced an employee
in the same classification; ....
(e) 'Seniority rights in displacing other employees must be exercised
within 15 days after the employees are laid off or displaced.
Employees laid off while on vacation or sick leave will have 15
days after termination thereof in which to dispute."
Two months after Claimant's employment records were closed the Parties to the
Agreement before this Board negotiated an Agreement establishing a procedure
which permitted a senior employee whose job was abolished, or, who was displaced,
to voluntarily accept a furlough status rather than to exercise his seniority.
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1
ya.
Concurrent with said Agreement the Parties also agreed in another letter
of Understanding, as follows:
"Upon your acceptance of the Letter of Understanding dated March
1, 1977 concerning senior employees electing to assume a furloughed
status, we agree to restore the seniority, without any liability
to the company of those employees who lose their seniority as a
result of their failure to exercise their displacement rights.
This understanding pertains solely to those employees who lost or
will lose their seniority in the period of from October 1, 1976
to and including March 13, 1977. This understanding does not
recover those employees who failed to bid a retainer or failed to
file a retainer provided in Rule 10 in the schedule of Rules."
As a result of the above understanding Claimant was informed that his seniority
was-'restored. He was advised on April 18, 1977, by the Division Engineer, and
instructed to report for work at Greenwin, Mississippi within seven days.
Claimant returned to work on April 26. Two months thereafter Claimant was
dismissed for cause which is not here relevant.
The Board finds that Claimant is not entitled to wages lost during the period
of December 22, 1976 until April 19, 1977. There has been no showing that
even if Claimant had maintained his seniority that he could have worked. The
implication is that he could not have. The March 1, 1977 letter of Understanding
quoted hereinabove effectively removes loss of seniority as a basis of claim
and for any liability. In the particular circumstances this Claim is denied.
Award Claim denied. Carrier Employee Member'Ha'~cf'en denied.Carrier Member
Arthur T. Van :Dart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, April 14, 1979.