PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
AWARD NO. 52
Case No. 52
Referee Fred Blackwell
Carrier Member: J. H. Burton Labor Member: S. V. Powers
PARTIES TO DISPUTE: -
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
VS.
CONSOLIDATED RAIL CORPORATION
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier recalled and assigned junior furloughed
Allegheny "B" Seniority District trackmen instead of Trackman C. D. Murphy to fill
temporary trackmen vacancies on the Philadelphia Division beginning during July 1986 (System Docket CR-2825).
(2) As a consequence of the aforesaid violation, Mr. C. D. Murphy shall:
"...immediately be placed on one of the positions in the Philadelphia Seniority District filled
by an employee who, although junior in Allegheny `B' Trackman rights, was allowed to fill
such positions commencing in July 1986. Further, the Organization requests that the
claimant receive eight (8) hours at the pro-rata Trackman rate for every work day after midJuly 1986 that the claimant was illegally prevented from filling this position."
FINDINGS:
Upon the whole record and all the evidence, and after hearing on September 6, 1990,
in the Carrier's Office, 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
FRED BLACKWELL
matter.
ATTORNEY AT LAW
P 0. Box 6095
1 WEST COLUMBIA S.C.29171 19031791-8086
SBA No. 1016 / Award No. 52 - Case No. 52
DECISION
:
Claim Sustained.
OPINION
In July 1986, there was a temporary need for Trackmen on the Philadelphia
Division. All Trackmen on the Philadelphia Division were employed, so the Carrier
decided to offer the temporary jobs to furloughed Trackmen on other seniority districts.
The Claimant was among the furioughees on the Allegheny "B" roster considered for the
jobs, but he was not among the Employees selected to fill the temporary jobs.
The Organization filed an August 4, 1986 claim, alleging that the Carrier had
violated the Claimant's seniority rights under Rule 4 of the Schedule Agreement.
By letter dated September 19, 1986, the Carrier's Division Engineer, Philadelphia
Division, denied the claim for the following reason:
'After reviewing Mr
. Murphy's personnel file,
I felt it
was in the best interest
of the
Philadelphia Division not to allow Mr. Murphy to be employed
on
the
Philadelphia Division."
Rule 4, in pertinent part, reads as follows:
1I
"Section 4
. Filling temporary vacancies.
(a) A position or vacancy may be filled temporarily
pending assignment
. When new
positions or vacancies occur, the senior qualified available
employees will be given preference, whether working in a lower rated position
or in the same grade or class pending advertisement and award. When furloughed employees
are to be used to fill positions under this
Section, the senior
qualified furloughed employees
in the seniority district shall
FRED BLACKWELL
be offered the opportunity to return to service.
Such
employees
who
return
and
ATTORNEY AT LAW P 0. BOX 6095 WEST COLUMBIA S.C. 29171 (B031791-6066
SBA No. 1016 / Award No. 52 - Case No. 52
are not
awarded a position or assigned to another vacancy shall return to
furlough status.
(e) The
word 'senior' as used in paragraph (a) of this Section means, first,
senior in the class in which the assignment is to be made and, thereafter, in the
lower classes, respectively, in the same group in the order in which the classes
appear on the seniority roster. The word 'senior' as used in paragraph (b) of
this Section means either senior in the class in which the assignment has been
made or senior in the highest class in the same group in which the employee
assigned holds seniority.
(f) Vacancies
which are not advertised may be filled in like manner."
The Organization submits that the Carrier has not denied the Organization's,
assertions that Employees from the Allegheny "B" Seniority District were assigned to the
temporary Trackmen jobs on the Philadelphia Division in July 1986. The Organization
further submits that
Third Division Award 26944 (03-30-88) is precedential authority on the
Conrail property that requires Conrail to follow seniority in a class of Employees when the
Carrier chooses Employees from that class to fill job vacancies in seniority districts other
than the seniority district of said class.
The Carrier submits that it was not required to offer the temporary jobs on the
Philadelphia Division to the furloughees of Allegheny "B" Seniority District, and that the
Carrier was not required to follow seniority in selecting furloughees for assignments to
such temporary jobs. The Carrier submits further that the Organization has not named
an individual to whom work was offered who is junior to the Claimant on the roster of the
Allegheny "B" Seniority District.
FRED BLACKWELL
ATTORNEY AT LAW
R O. BOX 5095
WEST COLUMBIA
S.C.29171
(803)791-8086
SBA No. 1016 / Award No. 52 - Case No. 52
After due study and assessment of the foregoing, and of the whole record
including the submissions presented by the parties in support of their positions in the
case, the Board concludes that the claim is supported by the record and that a sustaining
award is in order.
The dispute in
Third Division Award No. 26944 (03-30-88), between these same
parties, concerned a seniority question that arose under Rules 3 and 4 of the ConrailBMWE Schedule Agreement. In resolving that dispute, the Board ruled that when the
Carrier goes to rosters outside a seniority district to fill vacancies, the Employees on the
seniority roster of the outside district are entitled to compete against one another for the
job vacancy on the basis of seniority. Third Division Award No. 26944 is in point with the
facts and issue in this case and the Award will therefore be given controlling precedential
weight in the determination of the construction of Rule 4 in the facts of this case.
It is therefore found that the Carrier should have assigned the herein Claimant
to a temporary job on the Philadelphia Division ahead of Employees who were junior to
the Claimant on the seniority roster of the Allegheny "B" Seniority District. It is further
found that a sustaining award on this basis is in order.
In view of the foregoing, and based on the record as a whole, the claim will be
sustained as hereinafter provided.
AWARD:
The Carrier was required under Rule
4 of
the Conrail-BMWE Agreement to
FRED BLACKWELL
assign the Claimant to a temporary job on the Philadelphia Division ahead of
ATTORNEY AT LAW
P.O. BOX 6095
4
WESTCOLUMBIA.
S.C.29171
(603/791-6066
SBA No. 1016 / Award No. 52 - Case No. 52
Employees junior to Claimant on the Seniority Roster of the Allegheny "B"
Seniority District.
Accordingly, the claim is sustained to the extent that the Carrier is directed to
compensate the Claimant for an amount equivalent to the earnings of any
Employee assigned to one of the temporary jobs on the Philadelphia Division who
was junior to the Claimant on the Seniority Roster of the Allegheny "B" Seniority
District.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
Fred Blackwell, Neutral Member
S. V. Powers, Labor Member J. H. Burton, Carrier Member
Executed on , 1993
Conrail\ 1016\52-52.106
FRED BLACKWELL
ATTORNEY AT LAW
P o.
Box 6095
5 WEST COLUMBIA. S.C.29171 18031791-8086