PUBLIC LAW BOARD NO. 5606
PARTIES) BROTHER14000D OF MAINTENANCE OF WAY EMPLOYES
DIVISION OF THE INT'L BROTHERHOOD OF TEAMSTERS
TO )
DISPUTE ) SPRINGFIELD TERMINAL RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed and refused
to add Mr. Joseph C. Hafford's name to the Engineering
Department Trackman seniority roster commencing July 7, 2004.
2. As a consequence of the violation referred to in Part (1) above, Mr.
Joseph C. Hafford shall be shown on the Engineering Department
Trackman seniority roster with a date of July 7, 2004. (Carrier
File MW-05-06 )
FINDINGS:
The Board, after hearing upon the whole record and all the evidence, finds that the
parties herein are Carrier and Employee within the meaning of the Railway Labor
Act, as amended; this Board has jurisdiction over the dispute involved herein; and,
the parties were given due notice of hearing thereon.
An employee with seniority exclusively in the Carrier's Bridge and Building (B&B)
sub-department, Claimant was called while on furlough to cover some vacancies in
the Track Department, a sub-department of the Engineering and Mechanical
Department that has seniority rosters for employees that are separate and apart
from those in the B&B Department.
The gist of Organization argument is that when Claimant was called for work in the
Track Department that he then became entitled to seniority in that Department as a
Trackman, or new employee, beginning July 7, 2004. In this same respect, the
Organization argues that since Claimant was furloughed, he was unattached to any
department, and that when called for work he was hired into the Track Department
and should thereby have acquired Trackman's seniority from the first day he drew
pay for that position, namely, as claimed, July 7, 2004..
In support of its contentions, the Organization directs attention to Agreement
Article 4.1(c), which reads as follows:
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AWARD NO. 50
CASE NO. 50
Seniority in the lowest class on a given roster will begin on the date
that pay starts on a position covered by that roster.
The Carrier maintains that Claimant was provided a work opportunity as a "favor"
to help him financially while on furlough until a position opened in the B&B
Department that he could hold by virtue of his seniority as a B&B Mechanic in that
Department, which has B&B Mechanics as the lowest class on that roster. The
Carrier says that in order to attain seniority in the Track Department it would have
been necessary that Claimant bid for and be awarded a Trackman's position, a
circumstance not present in this dispute.
During handling of the claim on the property the Organization maintained that the
services Claimant performed upon being called from furlough were paid for at the
Trackman rate of pay. The Carrier does not deny this fact. However, it submits
that it would have been inappropriate to pay Claimant the B&B Mechanic rate of
pay, which is higher than that of a Trackman.
There is no question that Article 4.1(c), supra, speaks for itself, and emphasizes
when seniority commences for an employee entering the lowest class. In the instant
case nothing of record shows that Claimant was a new hire, as urged by the
Organization. He was not required to complete an application for employment or
undergo a pre-employment medical examination. The work available at the time
Claimant was called from furlough was that which accrued solely to employees with
established seniority in the Track Department, or an employee hired into that
Department. Claimant did not hold seniority in the Track Department, and a
contractual Agreement right did not exist for individuals other than those with
seniority in the Track Department to be called from furlough for work in that
Department.
Certainly, any change in Agreement rules to permit the calling of employees from
furlough to perform work in a seniority sub-department for which they do not hold
seniority, a matter that could affect the contractual rights of other employees on that
seniority roster to regular or overtime work, must be made as provided for under
the provisions of the Railway Labor Act. It is not a subject matter that may be
accomplished by reason of a Carrier supervisory official knowingly or unknowingly
violating Agreement rules in an effort to provide a temporary work opportunity for
a long-time employee who was on furlough from his own seniority sub-department
and in which there was, unfortunately, no need for a recall of employees. As set
forth in Award No. 15128 of the First Division, NRAB, BRT v. CMStP&P, Referee
David R. Douglas: "A seniority right is not a gift of management. It amounts to a
valuable property right which is earned by an employe who expends his energies
and efforts on behalf of his employer over a period of time."
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AWARD NO. 50
CASE NO. 50
Accordingly, without prejudice to the position of either party where the facts and
circumstances differ, the Board finds that Claimant may not be held to have
attained seniority in the Track Department. The claim will, therefore, be denied.
AWARD:
Claim denied.
Robert E. Peterson
Chair & Neutral Member
Anthony F. Lomanto
Carrier Member
Stuart A. Hulburt, Jr.
Organization Member
North Billerica, MA
Dated
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