The Second Division consisted of the regular members and in
addition Referee Thomas A. Burke when the award was rendered.
EMPLOYES' STATEMENT OF FACTS: Hubert J. Puckett, hereinafter referred to as the claimant is employed by the Southern Railway Company, as machinist at the carrier's Atlanta, Georgia Shops. Seniority date May 4, 1936.
On April 11, 1955 Machinist Puckett, while employed on his regular assignment, was caught in a flash fire and suffered near fatal burns.
Following his partial recovery, claimant sought to settle with the designated claim agents of the carrier and upon failure to secure what he believed to be just compensation, filed damage suit in the Civil Court.
At the time this accident occurred the claimant was working in the carrier's Maintenance of Way Department as pump repairer (composite mechanics) and upon sufficient recovery was allowed to return to the Maintenance of Equipment Department of the carrier. This by agreement of representatives of the carrier and of the organization, seniority being common between the two departments.
In 1955 while the Claimant was at work, negotiations with the carrier's claim department having broken down and the claimant having entered damage suit in the Civil Court, claimant was required by the master mechanic at Atlanta, Georgia to hand in to his office system annual pass previously issued to him.
There are no free transportation rules in agreements with operating employes, and all rules dealing with this matter in agreements with nonoperating employes recognize management's unrestricted right to grant or not to grant free transportation. This fact is recognized in Rule 50 of the shop crafts' agreement here in evidence. Thus, the association's contention that Claimant Puckett has a contract right to a system annual pass on the Southern Railway System Lines is simply not supported by the agreement.
In these circumstances, the Board cannot do other than make a denial award.
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.
Claimant contends that the controlling agreement has been violated in that claimant has been improperly denied a System Annual Pass on the Southern Railway System Lines. 30 7 9-6 509
The carrier contends that the granting of a pass is discretionary with the carrier and is nothing but a gratuity and cites the language of the Emergency Board created by the President in Executive Order 10511, that a pass "is a gratuity * * * and as such should be left under the control of the Carrier".
We concede that the granting of a pass is a gratuity and is under the control of the carrier. The carrier at its option may issue passes good on the entire system or passes' on its own railroad, or no passes at all but according to Rule 50 of the agreement it must give the claimant the same consideration as other employes in service.
In Awards 67 and 189 this Division held that Rule 50 is enforceable. Award 1880 of this Division is in point, at least to the extent that it holds that the lifting of a pass for filing suit is a violation of Rule 50 of the agreement. (Rule 44 in that case.)
The carrier contends that because of its policy of lifting the passes of all employes who bring suit, that in lifting the pass of the claimant herein, it was treating him the same as all other employes similarly situated; but Rule 50 does not say "similarly situated". It says "employes covered by this agreement * * * will be given the same consideration * * * as is granted other employees in service".
In Award 1254 of this Division it was held "The Carrier has, under Rule 33, the right to dismiss employees for cause, but the bringing of a legal action against it by an employe, * * * is not cause within the meaning of the rule for to so hold would be against public policy".
The policy of the carrier in lifting the pass of the claimant because he filed suit against it is another effort to deprive the claimant of the protection of the courts.