John C. Pletcher, Chairman & Neutral Member
D. D. Bartholomay Organization Member
E N. Jacobs, Jr., Carrier Member
Public Law Board No. 5651, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, the Board has jurisdiction over the dispute(s) herein; and, that the parties to the dispute(s) were given due notice of the hearing thereon and did participate therein.
First it is necessary to dispose of procedural arguments raised by Carrier, seeking a dismissal award in which the Board does not resolve the claim before it on its merits. In its submission Carrier states:
The Board finds this argument completely meritless. It is without any degree of persuasion, whatsoever. For one thing, Carrier is in error in its representation of the effect of a failure of the Organization to timely pursue or appeal a claim that it has denied. Only the claim that is not timely presented or appealed is barred from further consideration on its merits, not "other similar claims or grievances" that may involve identical issues. The right of the organization to have "similar claims or grievances" considered on their merits is specifically preserved by explicit language in paragraph (b) of Rule 31 which is incorporated by reference into paragraph (c). For another, the doctrine of res judicata does not cover a matter that has not been settled by a judgment on its merits. Black's Law Dictionary defines res judicata as:
In seeking an answer to this question the parties bulletin and assignment rule has been studied very carefully. It is noted that this Rule, while detailing several qualifications for Foreman-Track Patrolmen positions, does not include therein a requirement that the successful applicant reside i n the headquarters area of the job. Further, there is no showing in this record that heretofore such a condition was the practice of the parties under the Agreement. Accordingly, the Board must conclude that the Agreement was violated when Carrier did not assign Claimant to' the Foreman-Track Patrolman position at Moberly, Missouri because his residence was not within thirty miles of the headquarters of the job.
In reaching this result the Board has considered carefully the awards cited by Carrier, which it argued supported its position in this matter. Several of the authorities relied upon were dismissed out of hand because the involved a demonstrable qualification for the position, a valid drivers license for example. In the case of Foreman-Track Patrolmen, the actual location of their
residence is not material if they are able to report for work at the starting times assigned and are able to respond for emergency call-out within a - reasonable response time. Of particular interest in the authorities relied on by Carrier was Award 16, PLB 4433, a Signalman dispute arising on a component Carrier. That award was not found persuasive because it involved a slightly different issue then the one under review here and seems to have relied on another award involving a Carrier wherein a residency practice existed. The claim before the Board in Award 16 was:
In denying the claim Award 16 cited Third Division Award 3992. Award 3992, upheld a residency requirement because "it had been the practice of the Carrier on this railroad to require it."
Without an existing practice, or clear language in the bulletin and assignment rule, which rule includes other specific qualifications for position of Foreman-Track Patrolman, Carrier has not established a basis for the inclusion of a requirement that "successful applicant must live within 30 miles of headquarters point." Accordingly, the Agreement was violated when Claimant was not assigned the position re-advertised in Bulletin No. 4100. The Board will now order that he be awarded the position and paid for all losses sustained.
Carrier is directed to c ply with this award and make all payments due within thirty days of the e ' dicted b ow.