The Second Division consisted of the regular members and in
addition Referee Adolph E. Wenke when award was rendered.
SYSTEM FEDERATION NO. 110, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Machinists)
DISPUTE: CLAIM OF EMPLOYES: 1. That when Virgil Bailey, furloughed machinist helper, was restored to service on third shift, 11:00 P. M. to 7:00 A. M., effective November .24, 1947, he was subject to the terms of the current working agreement.
2. That accordingly the Atlanta Joint Terminals (hereinafter referred to as the carrier) be ordered to additionally compensate the aforesaid employe, subsequent to 7:00 A. M., December 2, 1947, as follows:
EMPLOYES' STATEMENT OF FACTS: Machinist Helper Virgil Bailey (hereinafter referred to as the claimant) was regularly employed as such by the carrier at Atlanta, Georgia, on the second shift, 3:00 P. M. to 11:00 P. M., when affected in reduction of force made effective September 2, 1947, pursuant to the copy of a bulletin submitted herewith as Exhibit A.
The carrier elected to fill a vacancy of machinist helper on the third shift, 11:00 P. M. to 7:00 A. M., effective November -24, 1947, thereupon restoring the claimant to service on the said shift as of that date.
The claimant was transferred from the third shift to the second shift, effective December 2, 1947, and compensated therefor at straight time pay. He remained on second shift assignment until discontinued in service at 11:00 P. M., December 14 in omission of proper notice provided for in the agreement.
The position of the employes, if sustained, would create an inequitable and intolerable situation, and one plainly not contemplated by the rule or the intent of its makers. Under such an interpretation employes could force excessive extra employment. By laying off one day a man could cause the employment of another for four days. Dissatisfaction would result because the carrier would be forced, by considerations of reason, to either require a man to lay off for four days before permitting an absence, or not fill the job at all.
The second question involves Rule 18, previously quoted, and also Rule 10, which applies to changing shifts. Rule 10 reads:
From its text it is plain that this rule is intended to prescribe a penalty to the carrier when it, because of some advantage accruing to it, changes a man who suffers some disadvantage, from one shift to another. But it is not applicable when changes are not made at the carrier's instance.
The carrier argues here again that the extra or furloughed man, himself, holds no position and is merely a representative of an absent man. The absent man's position has not been affected under the provisions of Rule 10 and it, therefore, cannot properly be said that his representative has been so affected.
Further, such consideration is entirely out of keeping with reason, equity and the spirit of the rule.
With respect to both questions the carrier states that the current rules are a part of an agreement entered into on August 12, 1944, and the practice followed in this case is identical with that of every other such case occurring since the date of the agreement. Employes have never before questioned this application of the rules and it is the established practice which, itself, demonstrates the intent of the parties to the agreement.
Further, the position of the carrier and its interpretation of these rules, and the established practice under the rules, is in strict accord with principles laid down in your Awards 558, 561 and 837.
The carrier, therefore, feels the employes' claim is entirely without merit and respectfully requests that it be declined.
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.
This claim is between the same parties and based on like facts (except as hereinafter noted) and the same rules as in Docket 1183 upon which Award 1262 is based. What is held in that award is likewise controlling here except as to claim (d) for change of shift on December 17, 1947 (carrier says December 18, 1947) after claimant had been restored to service on 126 1 f 457
December 16, 1947. Under Rule 10 of the current agreement the claim as it relates to this change of shift should be allowed but otherwise denied.
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.
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.