NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 6041
John C. Fletcher, Chairman and Neutral Member
Jason Ringstad, Carrier Member
John C. Mullen, Employee Member
On August 15, 1998, Claimant was called as engineer for Train S-FRSCHI113-13A, and while so assigned, failed to observe a red signal at Winslow, Arizona. Claimant was removed from service, and the record establishes that he subsequently waived formal investigation in exchange for a Level S 30 days' disciplinary suspension. The record further shows that Claimant's engineer certificate was revoked for a period of six months.
Claimant was reinstated to service on September 14, 1998 after serving his 30-day suspension. On September 15, 1998, Claimant attempted to exercise his prior train service seniority (because his engineer certificate remained suspended), and was barred from doing so by Carrier on the basis that Rule 19 of the BLE Agreement allegedly precluded him from working in a demoted status (under any circumstances) while junior engineers were still assigned as engineers. Rule 19 states:
On September 21, 1998, Local Chaimaan P. T. Lynch wrote to Carrier's Superintendent of Operations G. J. Konechy, objecting to Carrier's refusal to allow Claimant to exercise his ground service seniority pending restoration of his engineer's license. His letter stated in pertinent part:
On November 30, 1998, Claimant submitted two penalty time claims which are now before this Board, alleging that Carrier improperly withheld him from service after September 14, 1998. The first claim petitioned Conductor's Extra Board guarantee for the month of October, 1999, and the second claimed identical compensation for the month of November, 1999. Carrier denied both claims on the basis that Claimant "could have held as an engineer and was suspended as such." As resolution of the matter could not be reached on the property, it was submitted to the Board for disposition.
The Organization argues that Claimant should have been permitted to exercise his train service seniority under both applicable BLE and UTU Agreements. In particular, the Organization relies upon Award 24 of PLB =683, adopting the Organization's conclusion in that case that Claimant's engineer seniority was, in effect, non-existent ("set aside") as a result of the revocation of his engineer certificate. Consequently, every engineer in Claimant's seniority district so assigned, was "senior" to Claimant by virtue of that revocation, and he should therefore have been permitted to work in a demoted status under applicable BLE Schedule Rules.
The Organization also accuses Carne: of applying its fundamental argument in this case disparately. The Organization cites one specific instance on this same property, when a dismissed engineer was reinstated by Carrier, and in fact permitted to exercise train service seniority pending restoration of his suspended engineer certificate.' The Organization argues that Claimant should also have been permitted to do so, and urges the Board to sustain the instant claims.
At the outset, Carrier argues that the instant claims are not timely, as they were not presented within 60 days of September 15, 1998, the date Claimant completed his Level S suspension and first attempted to mark up in train service. Carrier argues that the claims in this case are not continuing, as a single "triggering event" occurred when Claimant attempted to exercise his ground seniority on that date, and was admittedly barred from doing so. As such, contends Carrier, they should have been presented within 60 days of September 1 5'" in order to be considered timely.
As to merit, Carrier admits applying as logic in :his case "inconsistently", given the Organization's evidence that Engineer :-iardegree was permitted to exercise train service seniority under similar circumstances. Nevertheless, Carrier argues that the controlling Agreement still supports its conclusion that Claimant was in possession of valid engineer seniority :n spite ?f temporary 1=T_tA revccat:cn ~: -=is ; _.. __ :_ ._.:;,ise it, and because :he .kgreement expressly
prohibits senior engineers from working in a demoted status while junior engineers are still so assigned, he was properly prevented from exercising his train service seniority on the basis that there were engineers beneath him on the roster who were still assigned and working as engineers.
With respect the Organization's reliance upon Award 24 of PLB 5663, Carrier argues that it is "misplaced", and accordingly urges the Board to deny the claims in their entirety.
After reviewing the record, the Board is persuaded that the instant claims are both timely and valid. As to the issue of timeliness, the Board observes that Claimant did not assert on November 30, 1998, that he was entitled to compensation beginning September 14, 1998. While Carrier is somewhat correct in observing that an initial dispute regarding the exercise of Claimant's ground service seniority arose on that date, the Board points out that the effect of that dispute was ongoing. In other words. Claimant could have attempted to exercise his ground service seniority at any point during the claim months of October and November, and apparently failed to do so on the basis of a reasonable expectation, given the record, that he would be barred from doing so. Consequently, because claims were filed in November for lost wages during the claim months October and November, they were clearly timely under Schedule Article 43, and are now appropriate for consideration on merit.
As to the merits, the Board adopts Referee Cluster's conclusion that the spirit and intent of seniority provisions cited by Carrier, were to protect Carrier from engineer shortages resulting from individual elective demotion. The reality here, as Referee Cluster similarly observed in Award 24, is that the mandatory revocation of Claimant's engineer certification effectively rendered his engineer seniority void, if only temporarily. Therefore, because by previous agreement Claimant had been permitted to retain his train service seniority in order to protect his employment in the event he could no longer work as an engineer (and that is precisely what happened here), he should have been permitted to exercise it upon his return from disciplinary suspension. The Board is fully persuaded that its conclusion is a sound one in light of cited arbitral precedent, and Carrier's own ac.'rnowled=e.^.t relative to the Organization's evidence on Engineer Hardegree, that its application of cited agreement provisions has been "mixed".=
The Board is convinced by the evidence that Claimant should have been permitted to access and exercise his train service seniority (after serving his disciplinary suspension) until such time as his engineer certificate was reinstated. Therefore, the instant claims must be, and are, sustained.