NATIONAL RAILROAD ADJUSTMENT BOARD

        SECOND DIVISION


PARTIES TO DISPUTE:
 SYSTEM FEDERATION NO. 68, RAILWAY EMPLOYES'
 DEPARTMENT, A. F. OF L. (MACHINISTS)
 TENNESSEE CENTRAL RAILWAY COMPANY
 DISPUTE: CLAIM OF EMPLOYES: That Elgie Byrd, machinist, was
 removed from the seniority list in violation of the agreement between the
 Tennessee Central Railway Company and its employes and should be placed
 back on the seniority list with his seniority unimpaired.
 EMPLOYES' STATEI4ENT OF FACTS: That Elgie Byrd, machinist,
 was employed at the Nashville shop of the carrier, entering their service
 about July of 1918; he was furloughed in October of 1933, on account of
 reduction in the force at the Nashville shops of the carrier.
 That because of the length of time of this furlough it was necessary to
 secure employment elsewhere and he did secure employment with the DuPont
 Company of Nashville, Tennessee.
 That on August 17, 1936, nine machinists and two machinst apprentices
 were laid off at the Nashville shops of the carrier.
 That the shops of the carrier at Nashville were working under a five
 day, forty hour week schedule in August and September of 1938.
 That on September 9, 1936, Byrd received a notice from Mr. J. D.
 Brewer, acting master mechanic, to report for work September 14, 1936.
 That prior to September 9, or on August 26, the committee addressed
 a letter to Mr. McMurry Gaines, vice president of the carrier, protesting the
 e calling of mechanics when senior laid off mechanics were available, increas
 ing the force while the shop was working short time and protesting the
 action of Mr. Brewer, acting master mechanic, in refusing to grant certain
 employes leave of absence while other employes were granted leave.
 That while this protest was pending, Byrd contacted Acting Master
 Mechanic Brewer about September 10, and requested leave of absence until
 the case was settled.
 That September 21, 1936, Byrd received a letter from Mr. J. D. Brewer,
 acting master mechanic, which stated in part:
 "You have failed to report for work and in view of your failure
 to do so you are hereby notified that your name has been removed
 from the seniority list."
 [166]
 331-5 170

authorized representatives and the carrier. Were the carrier forced to continue to carry men on the seniority roster under such conditions as presented in this case, such men may never return to service, but they would be a constant threat to junior employes who protected the service through possible dull periods, as they could bump the junior men and throw them out of employment at their pleasure. Any such handling would void the rules already contained in the current agreement with the employes, and would have a demoralizing effect.


Further in support of the position of the carrier, copy of Decision 1673, Docket 2054 of the United States Railroad Labor Board is submitted, marked Exhibit G, from which is quoted from the opinion rendered as follows:


"The Railroad Labor Board feels that in accordance with the language of the rule if in the restoration of forces men axe not available within a reasonable time, the carrier is justified in filling their positions and thereby considering them as having left the service."


The opinion of the Railroad Labor Board was based on the portion of Rule 27 of the National Agreement, reading:


"In the restoration of forces, senior laid-off men will be given preference of reemployment, if available, within a reasonable time, and shall be returned to their former positions * * * "


and similar phrase included in Addendum No. 6 to Decision No. 222, promulgated by the Railroad Labor Board. Attention is called to the fact that Rule 21 of the agreement in effect between this carrier and its employes contains similar phrase and is amplified by the addition of the last paragraph thereof, the last sentence of which provides for forfeiture of seniority rights on failure to return to service.


There is also submitted copy of Decision 2498, Docket 3866 of the United States Railroad Labor Board, marked Exhibit H, from which is quoted from the opinion rendered as follows:


"The evidence indicates that the carrier erred when it failed to restore Mr. Sheehan to the service when a vacancy first arose and to which he was entitled in accordance with his seniority standing; further, that when the carrier did offer to reinstate Mr. Sheehan to the service in a position covered by the same classification under which he had formerly worked, he surrendered his rights in refusing to accept the position offered him."


The carrier submits that no rule of the agreement was violated in removing Elgie Byrd's name from the seniority roster when he failed to return to work after being notified, and further, that the rules were strictly adhered to, and, therefore, requests that your Honorable Board deny the claim of the employes.


FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:


The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934.


This Division of the Adjustment Board has jurisdiction over the dispute involved herein.


The parties to said dispute waived right of appearance at hearing thereon.

The evidence discloses that Machinist Byrd was called to perform so-called "extra" and "fill in" service, the amount of which, in prospective, might be much or little.

331-6 171

 Byrd had been furloughed for a period of nearly three years before called to return to the service of the carrier.

 In view of all the circumstances, there was no real justification for not granting Byrd leave of absence for a reasonable period so as to protect his seniority.

                  AWARD


Machinist Byrd shall have his seniority with the carrier restored.

            NATIONAL RAILROAD ADJUSTMENT BOARD

            By Order of Second Division


ATTEST: J. L. Mindling
 Secretary

 Dated at Chicago, Illinois, this 18th day of April, 1939.