Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division

Dissent to Awards Nos. 1262, 1263 and 1264.

The undersigned dissent from the above majority decision of the Second Division of the National Railroad Adjustment Board in Awards Nos. 1262, 1263 and 1264.

The vital point involved in these awards is, when or under what conditions or circumstances is a furloughed employe "restored to service"?

There are two separate and distinct actions or procedures covered in the rules here involved that cannot be separated and treated as single items standing alone; they are so closely interrelated with other rules that to do so upsets the entire rules structure.

The two actions or procedures are, separating forces (men) from service and restoring forces (men) to service. The first action comes on the separation or removal from service-the rules provide that separation or removal can be made, where it can be made and the method of making it. There are no exceptions or options. The second action, the one here involved, comes on restoration or returning of men to service-the rules provide that men will be restored or returned, the basis upon which they will be restored or returned and to what position they will return. There are no options and only one exception, which is, "if available within a reasonable time."

An individual having an employe relationship under the terms of the agreement has all the rights applicable, unless expressly exempted or prevented by specific terms contained in the agreement.

The decisions in these three awards cause men in the service of a carrier to be denied their contract rights contained 'in many rules in the agreement-it denies them specific rights contained in the specific rule here involved-it sets up a group of certain men as a group separate and apart from all others, who are specifically denied many contractual rights. There are no provisions in the agreement, either by direct statement, by exception, by option or by inference to justify the decisions made.

In our brief in these cases we said in part:

"There are two separate and distinct questions involved in these dockets-one, involving furloughing men from and restoration to service and two, transfer time. We will deal with each question separately.

Reduction in force and restoration to service rules, insofar as the basic provisions are concerned, are, for all practical purposes, the same on most all railroads. There are minor differences, but those minor differences are not here involved.

These basic provisions have been in agreements for many years, even prior to the National Agreement of 1919. The carriers in 1921, when all the rules of the National Agreement were open before the United States Railroad Labor Board, argued for many changes in the furloughing men from and restoration to service rules. (National Agreement Rule 27.) The United States Railroad Labor Board, however, made no changes in the basic provisions of the former rule when they issued their rule in Addendum No. 6 to Decision 222.

After the 1922 shopmen's strike many so-called company unions came into existence. Agreements were written containing rule provisions not theretofore contained in agreements negotiated by bona fide labor organizations. Among other things there came into existence so-called "stand-by" or "extra" forces. These forces were composed of men who were first hired or employed and then, at the will of the carrier, were laid off or furloughed and advised that if and when any work was available they would be called in. What actually happened was that men in this group even waited at the shop gates for a call to work. A man under these circumstances didn't have a job-he only had an aggravation; under these circumstances there was no stability of employment; no sense of security. It enabled the carrier to reduce the so-called regular force to a minimum need or even below, knowing full well that their work requirements were safeguarded by these readily available workmen.

The standard furloughing men from and restoration to service rules were designed to prevent these situations mentioned above and did prevent them until they came back into existence under company union conditions. Some roads, having standard rules, recognized this advantage to them of doing the same thing, which was an unfair advantage, and attempted to do it.

The first cases of that nature came to this Division in 1935, the violation complained of occurred in 1931. They came from the New York Central; they were deadlocked and decided with the assistance of Referee Devaney; they were our Dockets Nos. 12 and 13, Awards Nos. 20 and 21. In deciding these two cases Devaney said, 'This calls for a constVuction of the meaning of certain language used in the rule. The language is cumbersome. The intention of the parties could have been made clear by the use of a few simple words.'

The decision supported the position of the carrier but was not to be an interpretation or serve as a precedent.

x

Following the decisions of Referee Devaney in Awards Nos. 20 and 21, and acting on the suggestion of Referee Devaney that 'the intention of the parties could have been made clear by the use of a few simple words,' the shop craft employes decided to attempt to clarify that point when agreements were open for changes.

These cases are the first ones that have come to this Division under an agreement containing the added paragraph to the furloughing men from and restoration to service rule. It is paragraph (d) of Rule 18 in effect on this railroad-it reads, "Employes restored to service will not be laid off again without the four days' advance notice provided in this rule.'

Therefore, these men who were restored to service and again taken out of service without having been given four days' notice are entitled to four days' pay in lieu of said notice in each instance where such improper furlough took place.

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As stated in the above there is an added paragraph, Rule 18 (d), not contained in any agreement involved in prior cases, on this point, the added language has great significance in the light of the historical recordit should not have been so lightly cast aside.

That part of the decisions dealing with the transfer time dispute clearly demonstrates that these men are set apart as a separate group, working for the carrier just like their fellow workmen, but who are denied the same rights and benefits of the agreement provisions as their fellow workmen would have enjoyed if involved in the same kind of case.

Machinist Helpers Willie Ross, having been employed on eighteen (18) days from November 20 to December 27, 1947, and Virgil Bailey having been employed on twenty-two (22) days from November 24 to December 16, 1947, surely cannot be said to not be employes subject to the same rules that apply to any other employes beside whom they work.

These decisions do not and cannot be supported by any language contained in the agreement. As these decisions stand, it opens the way for the distortion of many provisions of agreement simply because it sets apart a group of men who are denied the same rights as other men beside whom they work. These decisions will permit of acts that will enable them to evade certain provisions of the agreement and to an extent far beyond just those elements here involved.

It is a well recognized doctrine of contract construction that if a certain interpretation of the language of a contract will produce absurd results, then that interpretation should be abandoned in favor of one which does not produce such results.

H. J. Carr