PUBLIC LAW BOARD NO. 2960
AWARD N0. 128
CASE NO. 163
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement in terminating Ms. D. C.
Shannon. As a result of this wrongful termination, Ms. Shannon
was deprived of work opportunity between August 20, 1984 and
September 27, 1984.
(2) Claimant Shannon shall be compensated 192 hours at the
straight time rate and 15.5 hours at the time and one-half rate
of pay.
OPINION OF THE BOARD
This Board, upon the whole record and all of the evidence,
finds and holds that the Employe and Carrier involved in this
dispute are respectively Employe and Carrier within the meaning of
the Railway Labor Act, as amended, and that the Board has jurisdiction over the dispute involved herein.
Some facts are undisputed. It is undisputed that the
Claimant entered service as a track laborer on June 19, 1984.
On July 23, 1984, she was working on a rail gang in the vicinity
of Onida, South Dakota. This gang was under the supervision of
Foreman L. L. Nicolay, and a notice was posted on July 23,
abolishing the gang effective July 30, 1984. The Claimant asked Mr.
Nicolay if she could leave work that day as she was scheduled to
take a European vacation. Mr. Nicolay gave her permission to do
so, but reminded her that if she desired to protect her
seniority, it would be necessary for her to file a rights
retainer. Claimant did not perform work on the gang subsequent
to July 23. At some point later, she discovered during her
absence she had been terminated. On August 6, she contacted the
ADM-Administrator's office.
What occurred on August 6 when she contacted the ADM office
is disputed. The Union asserts that the Claimant contacted the
Carrier to file a rights retainer as required by the Agreement
whereupon she was refused assistance from the ADMAdministrator's office and informed of her termination. They
also assert the Claimant was told that the Foreman could supply
an explanation, however, her attempts to locate the Foreman were
unsuccessful.
The Carrier claims that she called on August 6 to determine
why a letter advising her that her application for employment
was rejected had been sent on July 30. They also assert that
because Mr. Corrigan was at lunch when Claimant called, she was
transferred to the office of the Assistant Division Manager
Engineering, where she talked to a payroll clerk. The clerk
advised her that she would have to call Mr. Corrigan or her
supervisor. -
It is undisputed regardless of the precise events on August
6 that her next contact with the Carrier was on September 19,
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1984. She talked to Corrigan who decided the termination was
erroneous. The Claimant subsequently bid on a rail gang job at
Basset, Nebraska, and reported back to work on October 8, 1984.
Subsequently, the claim was filed based on the contention that
except for the improper termination, the Claimant was eligible
for available work which existed and thus was deprived of work
opportunities.
It is the opinion of the Board that
in
order to prevail the
Claimant would have to show she was available to work during the
period in dispute. The evidence, however, does not yield this
conclusion. There simply isn't any satisfactory or justifiable
explanation why there was no contact between the Claimant and
the Carrier for such a long period of time between August 6 and
September 19. Even if we believe the Claimant that she was
unable to contact the Foreman on August 6, too much remains
unexplained about the period of time as a whole to conclude she
was available for work. Thus, she is primarily responsible for
her loss of work opportunities since the Carrier moved with
reasonable dispatch to remedy the situation when a responsible
officer was finally alerted to the unique circumstances.
Accordingly, the factual basis necessary to sustain the
claim is lacking and it must be denied.
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AWARD:
The Claim is denied.
1;T Vernon, FFairman
r o omay, mp a ember a " mon, Carrier MeMbeF
Dated:
/DV