Carrier Member: J. H. Burton Labor Member: W. E. LaRue
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
VS.
CONSOLIDATED RAIL CORPORATION
STATEMENT OF CLAIM:
Claim of the Brotherhood (CR-3251) that:
(a) The Carrier violated the effective agreement by failing to
correctly inform Traclanen A. Novak and L. Tillman of their displacement rights when their positions were abolished on June 8,
1987.
(b) The Carrier further violated the agreement when it failed to
allow Claimants to return to service after it was aware of extenuating circumstances involved preventing the Claimants from making
timely displacement.
(c) The Claimants be returned to service with seniority and all
other rights unimpaired and compensated for all time lost as a
result of the Carrier's decision to remove the Claimants from all
rosters."
FINDINGS:
Upon the whole record and all the evidence, after November 8, 1990 hearing in Washington, D. C., the Board finds that the
parties herein are Carrier and Employees within the meaning of the
Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and of the
subject matter.
OPINION
FRED BLACKWE.L This case arises from the Claimants' appeal and protest ATMRV AT IJW 19129 HOM MY 1 OAIIHERSBl1RG, MAMANO 20978 (3011 9775099
P.L. Board No. 3781 / Award No. 52 - Case No. 52 (120)
of the Carrier's action of July 13, 1987, whereby the Carrier terminated their employment status with the Carrier due to their
failure to exercise their seniority in timely manner under Rule 4,
Section 2. (b) of the applicable Agreement.
The positions of the Claimants on the Turnout Gang at
Selkirk, New York, were abolished at the close of business on June
8, 1987. At the time of the abolishment of their positions the
Claimants had seniority over employees working at Selkirk Yard but
they failed to exercise their seniority to displace junior employees during the ten (l0) day period following abolishment allowed
by Rule 4, 2. (b) and consequently, by Carrier letter dated July
13, 1987, the Claimants were informed that their seniority had
been forfeited in accordance with said Rule.
It appears from the record that within the ten (10) day
period the Claimants spoke with the Track Supervisor at Selkirk
who advised them that jobs were available on Production Gang at
Selkirk with junior employees whom they could displace. The record reflects that the Claimants received information from the Supervisor that the Production Gang would be leaving Selkirk in four
(4) or five (5) days, thereby making it unnecessary for Claimants
to exercise seniority at that time. However, the Production Gang
did not leave Selkirk as scheduled and the Supervisor failed to
advise the Claimants of that change.
After due study of the foregoing and of the whole record,
FRED BLCKWU ATMEY AT LM inclusive of the parties' arguments in support of their respective
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P.L. Board No. 3781 / Award No. 52 - Case No. 52 (120)
positions in the case, the Board concludes that the failure of the
Claimants to exercise their seniority to displace a junior employee within the time period allowed by Rule 4, 2. (b) provided a
proper basis for the Carrier to institute action regarding forfeiture of the Claimants' seniority under the self-executing provisions of the Rule. However, the record reflects that the Claimants were erroneously informed by the Track Supervisor that the
Production Gang was moving from Selkirk in four (4) or five (5)
days and there were no junior employees subject to displacement.
In these circumstances, while otherwise there was a valid basis
for the Carrier to take action under the Rule, the Board deems it
unsound to permit the seniority forfeiture to remain in effect
permanently.
Accordingly, in view of the foregoing and for the reasons
indicated, the Claimants shall be returned to the seniority roster
in line with their original hire dates, and shall be returned to
service as warranted by their seniority. The Claimants did request compensation for time lost and therefore, however, because
of the extenuating circumstances no money will be allowed.
AWARD:
The Carrier shall return the Claimants to their
original place on the seniority roster, and they shall
be returned to service in line with their seniority with
all other rights unimpaired, but without pay.
FRED BMKWpy
The Carrier shall comply with this Award within
ATMEY AT UN 19729 AWN WAY
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P.L. Board No. 3781 / Award No. 52 - Case No. 52 (120)
thirty (30) days from the date hereof.
BY ORDER OF PUBLIC LAW BOARD NO. 3781.
Fred Blackwell, Neutral Member.
Z~4z
Mo. J. H. Burton, Carrier Member W. E. LaRue, Labor Member