AWARDS 73 - SENIORITY VALUABLE ASSET

First Division Award No. 15128 (Douglass)

"A seniority right is not a gift of management. It amounts to a valuable property which is earned by an employe who expends his energies and efforts on behalf of his employer over a period of time. An employer benefits probably as much, if not more, than an employe in that it gives the employer a more stable organization. Without seniority rights there would not be the incentive for an employe to stay with an employer in many instances. Without seniority, management would be faced with a migratory labor problem, but with seniority rights existing it naturally follows that an employe is reluctant to abandon those rights for some other job that might be somewhat more attractive if seniority rights were not considered when deciding the relative merits of the two jobs."

Third Division Award No. 19758 (Rubenstein)

"Seniority provisions are included in labor relations agreements for the benefit of the senior employees. They seek to protect and give preference in jobs, promotions and other opportunities to employees with greater seniority.

"In this respect, they are a limitation of the employer's right to operate and manage its business. As such, they must be interpreted in favor of their beneficiaries, and applied wherever the issue arises, unless there are definite limitations of the Rule in the contract. Exceptions to the seniority provisions, if any, should be listed in the agreement. Otherwise the term is widely applied."

Third Division Award No. 20310 (Lieberman)

"Seniority rights are of prime importance in the collective bargaining relationship and are tampered with at Carrier's peril."

Third Division Award No. 18501 (Ritter)

"A close inspection of the Clerks' Agreement fails to disclose a definition of `official positions'. Under Award No. 13242 (Dorsey) of this Division, this Board does not have the power to supply a definition of `official positions'. Therefore, this dispute cannot be resolved. As a precedent to stripping an employe of seniority rights, the evidence supporting such an action must be clear and convincing. The evidence in this case falls far short of this standard. Seniority rights are valuable rights, and cannot be taken away unless the schedule rules and evidence warrant such action beyond question. See Award No. 11255 (Miller). Therefore, this claim will be dismissed."

Fourth Division Award No. 2164 (Seidenberg)

"The Board finds, upon review of the evidence, that the Carrier's contention is ill founded that the deprivation of a yardmaster's seniority is not a disciplinary sanction, and therefore not entitled to the procedural protection encompassed within Rule 11(a). It is difficult to envisage a more sever disciplinary action that the Carrier could take against any employe in this Industry, short of outright dismissal, than to deny an employe the right to exercise his contractually awarded seniority.

"It is not disputed by either side to this dispute that seniority is a right granted by the collective bargaining agreement governing the employment relationship; it is also not disputed that this contractually awarded seniority may be terminated for just cause by the employer. But since it is a contract right, and not given as an act of grace on the part of the Carrier, it can only be taken away in accordance with the procedural standards encompassed within the concept of due process - both adjectivally and substantivally. The Carrier could, in the instant case, terminate the Claimant's yardmaster seniority for just cause, even without the warrant of Rule 8(d). All that this Rule does is explicate and concretize the Carrier's existing right as well as set forth the kind of employe misconduct which may result in his forfeiting his seniority rights. But there is nothing in Rule 8(d) which grants the Carrier the unilateral right to determine the controverted fact as to whether the employe in question has indeed forfeited his contractually awarded seniority. The determination of controverted facts affecting all aspects of the employment relationship, including seniority rights, must be resolved in accordance with the provisions of Rule 11(a) rather than Rule 8(d). This latter rule is not self operative. It does not bestow upon the Carrier the sole and exclusive right to determine finally, and without effective challenge, the controverted issue of whether the Claimant did, without just and sufficient cause, refuse to execute an appropriate work assignment.

"It may well be that the Carrier's attempted disciplinary action was merited by the particular facts of the case, but this must be determined, not exclusively and solely by the Carrier, but rather in a proceeding that conforms to the procedural standards laid down by Rule 11(a). For the Board to find otherwise would be to hold that the Claimant's contractual rights are illusory rather than real. Since the record is clear that the Carrier did not comply with these aforementioned standards, its unilateral action terminating the Claimant's seniority rights as yardmaster must fall."

Fourth Division Award No. 2611 (Weston)

"Rule 16 prescribes that `The oldest qualified Yardmaster' making written application to fill a permanent vacancy or newly created position `shall be assigned to the position at the expiration of the bulletin period.' It is Carrier's contention that Claimant was not qualified for the position in dispute.

"While we are disposed to permit a carrier considerable latitude in determining qualifications under provisions similar to Rule 16, its right to do so is not unlimited. It cannot validly make such a decision arbitrarily or unreasonably and, where as here, it has passed over a senior employe in filling a position, it is under the obligation of showing specific persuasive considerations that prompted its decision in that regard. A contrary holding could realistically render seniority rights meaningless."