Award No. 23
Case No. 23
PUBLIC LAW BOARD NO. 4897
United Transportation Union
Union Pacific Railroad Company
STATEMENT OF CLAIM:
Claim of Brakeman K. J. Coker for 456 miles account CMS failed to notify him. He was displaced until 12 hours later.
Upon the whole record, after hearing, 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 under Public Law 89-456 and has jurisdiction of the parties and the subject matter.
At 12:01 P.M. on November 30, 1986, Claimants pool freight turn was abolished. The record indicates that Carrier attempted to notify Claimant of this at 6:30 P.M, and finally was successful in notifying him at 12:35 A.M. on December 1st, 1986, 12 hours and 35 minutes following the displacement. According to Petitioner, Claimant had preference to place himself on another pool freight run, which was placed on duty at 3:10 P.M., November 30, but in view of the lack of notification, he was not able to displace onto that turn. Thus, Claimant was deprived of the possibility of compensation for 456 miles, made by the turn involved on November 30 and December 1st. Claimant was called out at 5:50 A.M. on December 2, 1986, on his new turn.
Rule 39(a) relied upon by the Organization in part in this matter, provides in pertinent part as follows:
(a) Reduce The Number Of Crews. When making reduction in number of crews in pool freight service, reduction will be made in the order of juniority of conductor.
The Organization also relies on Rule 92(19), which states:
Brakeman in pool freight service, using position through reduction in crews or through no fault of their own, will displace any junior brakeman in pool freight service, but shall not displace a junior conductor or brakeman in assigned service unless there is no junior brakeman in the pool freight service. Displacement shall be made at home terminal.
Petitioner maintains that under the rules cited that Claimant was prevented from exercising his seniority in accordance with the rules to a new position. There was no attempt to notify Claimant until 6:30 P.M., some 6 hours and 29 minutes following his turn being abolished. Thus, according to Petitioner, Claimant lost compensation of 456 miles for the two dates in question. Furthermore, the Organization argues that Carrier had an obligation to promptly notify Claimant that he was displaced but failed in this obligation.
Carrier takes the position that it made a good-faith effort to contact Claimant following the abolition of his position. Furthermore, according to Carrier, there is no rule which requires Carrier to notify employees of the displacement within any specified time, as the Organization attempts to argue. Therefore, Carrier argues that there has been no evidence to indicate that there was any mishandling of Claimant in the course of this particular transaction. In addition, Carrier notes that Claimant suffered no loss of income, since he exceeded the income provisions specified in the Agreement for both the month of November and the month of December 1986. For that reason as well, Carrier insists that there has been no loss of compensation suffered by Claimant, and therefore no penalty would be appropriate.
The sole question, which this Board must deal with, is whether indeed Carrier made a reasonable effort to notify Claimant of his displacement following that occurrence. As the Board stated in Award No. 5 of Public Law Board 1919, Carrier is obligated to make a reasonable effort to give notice to an employee, who has been displaced, as soon as possible. In this instance, a six-hour plus delay following the incident's occurrence does not appear to be a reasonable period of time for Claimant to have been notified, or attempted to be notified. For that reason it appears that Carrier did not indeed make a reasonable effort to contact Claimant following his displacement. The sole question remaining then is whether the penalty requested is appropriate. The Board does not believe, in view of the circumstances, and the lack of specificity in the Agreement for a particular penalty, that 456 miles is appropriate. There was no showing of a loss of earnings by Claimant, but in view of the loss of work opportunity, a more appropriate penalty would be 100 miles. Therefore, the claim will be sustained, but the penalty reduced to that number.
Claim sustained; the Claimant will be awarded 100 miles as compensation for loss of work opportunity.
Carrier will comply with the Award herein within 30 days from the date hereof.
I.M. Lieberman, Neutral-Chairman
G. A. Eickmann, Employee Member
Scott Hinckley, Carrier Member
January 22, 1992