SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L. (MACHINISTS)
DISPUTE: CLAIM OF EMPLOYES: That under the controlling agreements, the seniority date of Machinist Harry M. Killinger of August 2, 1926, and so carried on seniority rosters for fourteen (14) years until the 1940 seniority roster was revised, be reestablished as of August 2, 1926.
EMPLOYES' STATEMENT OF FACTS: Machinist Harry M. Killinger was regularly employed at Corbin Kentucky shops, in July, 1926, from 11:00 P. M. to 7:00 A. M. in the machine shop.
On July 3, 1926, during regular working hours in the morning, Machinist Killinger in cooperation with Electrician Hudson and Machinist Helper Bennett, wilfully committed dischargeable offenses and were found guilty thereof.
On July 5, 1926, at the close of shift starting July 5, the carrier cancelled the services of the aforesaid employes, should they not elect to resign.
Electrician Hudson has not since been employed at Corbin, Kentucky by the carrier. Machinist Killinger was reemployed by the carrier at Corbin, Kentucky, on August 2, 1926, and on August 31, the same year, Machinist Helper Bennett was reemployed.
Machinist Killinger has been carried on the Corbin seniority roster for fourteen (14) years as of the date reemployed, August 2, 1926.
The carrier on August 31, 1940, without the consent of the duly certified representative organization, favored Machinist Killinger with seniority as of his original date of employment, November 28, 1922, over forty-four other machinists on the Corbin seniority roster.
Machinist Helper Bennett is carried on the current seniority roster, the date of reemployment, August 31, 1926.
POSITION OF EMPLOYES: Machinist Killinger was regularly assigned to the third trick machine shop at Corbin, Kentucky. His regular hours were from 11:00 P. M. until 7:00 A. M. Upon reporting for his regular tour of duty at 11:00 P. M., July 5, 1926, he (Killinger), was handed a letter (copy of which is submitted and identified as Exhibit A), by his foreman, notifying him that his services were no longer needed after completing his regular tour of duty, but he would be given the privilege of resigning from the service in order to prevent anything being placed against his record that would hinder him from being given consideration for future employment.
From the foregoing it can not be denied that these men were dismissed from the service; the question of resigning being secondary. In this connection the agreement in effect at that time did not require that an employe be given formal investigation-unless requested by him; nor did the agreement at that time place a time limit in which seniority might be protested.
Mr. Killinger reentered the service on August 2, 1926. On September 30, 1930 we received first request that Mr. Killinger be restored to his original seniority, which was declined on the grounds that he had resigned from the service. The matter was then handled almost continuously on down through the years, and consistently declined as we were informed he had resigned on July 6, 1926.
In January, 1940, we received a petition signed by every man on the machinists' roster at Corbin, Ky., who would be affected by the restoration of Mr. Killinger's original seniority, copy of petition submitted and marked Exhibit AA. On Tuesday, July 30, 1940, Mr. Killinger appealed his case in person, producing the original letter of July 5, 1926, as quoted above, showing that he was discharged, which letter had not previously been produced in any discussions with this office, it being the understanding of this office that Killinger resigned and was not discharged.
Taking into consideration the fact that an employe advised in writing on July 5 that he was being discharged, it follows he could not resign on July 6; that the men to be affected were agreeable to the restoration of his original seniority and that Mr. Killinger had proven to be a high class and capable employe since his return to the service, instructions were issued in August, 1940, that he be given seniority as machinist as of November 28, 1922, his original seniority dating.
The Board will please understand that the carrier retains the right to restore to the service any employe dismissed by it for cause, without the concurrence 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 facts in this case are that Machinist Killinger, on July 5, 1926, had his employment relationship with the carrier severed. 798-6 776