PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT N0. 1016
AWARD NO. 100
u
Case No. 100
Referee: Michael Fischetti
Carrier Member: J.H. Burton Labor Member: M.J. Schappaugh
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
VS.
CONSOLIDATED RAIL CORPORATION
Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed
to place the successful applicants onto the position listed in
Advertisement Nos. RM 231-93-1 and RP 232-93-1, dated February
11, 1993, as required by Rule (System Docket MW-3102).
(2) As a consequence of the aforesaid violation, the
two (2) senior 'A' Foremen two, (2) 'B' Foremen, two (2)
assistant foremen, six l6) Class 2 Machine operators, two (2)
repairmen, four (4) vehicle operators, four (4) cooks, nine (9)
~.s Class 3 Machine Operators and thirty-nine (39) trackman operators
who were furloughed at the time this incident took place shall
each be allowed forty (40) hours' pay at their respective
straight time rates and shall be made whole.
Findings:
Upon the whole record and all the evidence and hearing
in the Carrier's Office in Philadelphia, Pennsylvania, 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
The Employees contend that the Carrier posted bulletins on
February 15,1993, and that the said Carrier did not cancel said
bulletins by February 22,1993, or within seven (7) days from the
close
of
the application period. Accordingly, the Employees
contend
that the Carrier failed to comply with the provisions of
Rule 3, Section 3(e) which allows the Carrier to cancel the
advertisement within seven (7) days of its posting. Moreover,
the Employees contend that since the Carrier did not exercise its
option, that under Rule 3, Section (d) it was obligated to,award
the positions within seven (7) days thereafter.
LC~Ito-Ib0
The Carrier contends that the Employees claim is -
procedurally defective because it was submitted ow behalf of 75
unnamed "senior furloughed" employees in various job
classifications. Accordingly, the Carrier contends that the
claim is too broad and indefinite and that it must be dismissed.
Moreover, the Carrier contends that it canceled the said
bulletins on February 24,1993, without making any awards to the
advertised positions. Moreover, the Carrier contends that the
claimants have not suffered any injury, and that, therefore,
there cannot be any entitlement since they have no loss.
Regarding the Carrier's claim of dismissal on procedural
defect, the Board finds that the Organization's claim is flawed
because it is vague and lacks specificity, but not fatally so.
The Board finds that the Carrier has violated Rule 3,
Section 3(e), of the Agreement, when it failed to cancel the
aforesaid advertisement within seven (7) days, and although the
Carrier maintains that the claimants have not suffered any loss,
this is not so because they have suffered the loss of a work
opportunity. Accordingly, the Board notes the Carrier's
violation of the Rule 3, Section (d). Such violations of the
Agreement cannot be taken lightly. The Board is not making a
punitive or monetary award in this instant case because the
Organization has not specified the names of the claimants.
Moreover, we have no way of readily identifying the names of the
Employees who would have applied. The Carrier is on notice,
however, that any similar future violation of the Agreement will
result in more serious consequences.
AWARD
Claim is sustained in accordance with the findings herein.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
-----------------------
Michael Fischetti, Neutral Member
M.J. ~ppau h,Labo Member Burton, Carrier Member
Executed on G
Conrail/BMWE/SBA 1016/100
.,
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LABOR MEMBER'S CONCURRENCE AND DISSENT TO
AWARD 100 - SPECIAL BOARD OF ADJUSTMENTNo. 1016
(Referee Fischetti)
The Union concurs with the Arbitrator's finding that the
Carrier violated Rule 3, Sections (d) and (e) in this instance.
That the Arbitrator reached a finding that the Carrier violated
Rule 3 was not surprising since the language of Rule 3 is crystal
clear and since several prior arbitral decisions addressed the
issue and supported the Union's position (Award 24 of Public Law
Board No. 3781, and Third Division Awards 29578, 31265 and 31373).
These awards were presented to the Arbitrator for consideration in
this dispute.
Dissent is required, however, because the Arbitrator did not
sustain the monetary claim. In denying the monetary claim the
Arbitrator held that:
"The Board is not making a punitive or monetary award in this
instant case because the organization has not specified the
names of the claimants. Moreover, we have no way of readily
identifying the names of the Employees who would have
applied."
The above finding is improper and inappropriate for the
following reasons. First, whether or not the Union specifically
identified an affected employe by name on the property is
immaterial. It has been held in numerous arbitral awards that a
Claimant need not be specifically identified by name for a claim to
be valid. Instead, what is required is that the appropriate
Claimant or Claimants be readily identified from the Carrier
records in the event of a monetary award. In this instance the
affected Claimants were clearly identified as being the senior
furloughed Inter-Regional West District employes at the time the
advertisements were issued on February 11, 1993. The specific
names of those individuals was readily available to the carrier at
all times from its payroll records.
Second, as was pointed out during the handling on the property
and at subsequent levels, including oral hearing before this Board,
the Claimants were all furloughed and were automatic bidders to the
positions advertised on the bulletins involved here. Hence, it
would have only been a small administrative matter to determine who
the appropriate senior applicants to the positions were. This is
especially true since, in accordance with Rule 3, Section (d), the
carrier is obligated to announce, by posting, the successful
applicants to positions within seven (7) days after the closing of
the advertisement.
Third, and perhaps most importantly, the Carrier made exactly
the same argument in an identical dispute which was decided in the
` [DID-loo
LABOR
MEP[BER'S CONCURRENCE AND DISSENT TO
AWARD 100-SPECIAL BOARD OF ADJUSTMENT No. 20.16
Page
2
Union's favor by Third Division Award 31373 (J. Fletcher). Third
Division Award 31373 was presented to the Arbitrator during the
oral hearing of this dispute. In rejecting the Carrier's arguments
regarding alleged unnamed Claimants, the Majority in Award 31373
held:
"Carrier has argued that the Claimants are not identifiable,
therefore the claim is defective. With this the Board does
not agree. The bulletin had a closing date. Bids were
received for the positions listed in the bulletin. The claim
was made on behalf of those who would have been the successful
applicants. They are easily identifiable."
The absence of a monetary award in this instance is palpably
erroneous and does not serve as precedent.
In accordance with the above, I dissent,
Respectfully submitted,
Ala,
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