The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 152, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
EMPLOYES' STATEMENT OF FACTS: Machinist John E. Waldron, hereinafter referred to as the claimant, is employed by the Pennsylvania Railroad Company, hereinafter referred to as the carrier, at the carrier's Pitcairn Air Brake Shop.
The claimant established a seniority date as a machinist helper on August 19, 1943, and as a machinist on October 26, 1943. There were several times during his employment when he was laid off, however, he always answered a call when the carrier called him to return to service.
On November 16, 1960, the claimant was laid off, and in accordance with Rules 3,D-7 and 3-B-1(c), filed proper notice of his address.
The claimant was a regularly assigned hourly rated employe and the only reason he did not work the last day of his assignment preceding the holiday and the first day of his assignment following the holiday is because the carrier did not call him for service thereby denying him the opportunity to work. He was available for service if the carrier had called him pursuant to the rules of the applicable agreement.
This dispute has been handled on the property in accordance with the agreement with all officers of the carrier authorized to handle grievances with the result that they declined to adjust it.
to the said agreement, which constitutes the applicable agreement between the parties and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, First, subsection (i), confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation of application, of agreements concerning rates of pay, rules or working conditions". The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the agreement between the parties to it. To grant the claim of the employes in this case would require the board to disregard the agreement between the parties hereto and impose upon the carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The board has no jurisdiction or authority to take such action.
CONCLUSION: The carrier has established that the claimant is not entitled to holiday pay for November 24, 1960.
Therefore, the carrier respectfully submits that your honorable board should deny the claim of the employes in this matter.
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.
In this holiday pay dispute for Thanksgiving Day, November 24, 1960, the Carrier asserts that claimant was not "available for service" within the terms of the applicable rules as required by the "Note" in Section 3, Article III, of August 19, 1960 Agreement, because there is no "specific rule" or "rules of the applicable Agreement" which require the furloughed claimant in this instance to respond to a call for service. Further, Carrier argues that Rule 3-D-7 is not a "rule of the applicable agreement" referred to in said "Note" and thus claimant wasn't "available for service" and therefore didn't qualify for the holiday pay.
The Organization, in its original ex parte submission, refers to Rules 3-D-7 and 3-B-1 (c) in support of claimant's position that he filed proper notice of his address. Carrier argues that Rule 3-D-7 does not support the instant claim in that said rule is for the protecting of claimant's seniority and in no. way gave him the right to be called for service. Carrier further argues that the "rules of the applicable agreement", as referred to in the "Note" in Section 3, Article III of '60 Agreement, does not contain a rule under which a furloughed employe may "respond to a call" from Carrier for service.
Carrier's argument in support of these allegations regarding the "availability" of claimant for service is without merit for the following reasons:
Section 3, Article III of the '60 Agreement does not require an employe, .such as claimant herein, to be required to respond immediately to a call for service from Carrier. As this Division has previously held, the test in determining "availability" is whether or not Carrier calls the employe for service, and said employe does or does not respond to such a, call for service.
There is nothing in the '60 Agreement or in any Agreement between the parties hereto that prevented Carrier from calling the claimant for service. Inasmuch as claimant did not "lay off of his own accord" and did not fail to respond to a call for service from Carrier, he met the "available for service" requirement of Section 3 (ii) and the "Note" therein of Article III of the '60 Agreement. Therefore, this claim must be sustained.
DISSENT OF CARRIER MEMBERS TO AWARDS NOS.
5061-5090 INCLUSIVE AND AWARDS
NOS. 5120, 5123 AND 5134
In its Award No. 5061 the Board finds, based on an affirmative contention by the employes, that claimants were "available for service" within the intent and meaning of the second paragraph, Section 3, Article III, of the August 19, 1960 Agreement and, therefore, their claims must be sustained.
The decision in this case has been followed in 29 companion cases (Awards Nos. 5062 through 5090).
The "Note" to Section 3, Article III, HOLIDAYS, of the August 19, 1960 Agreement reads as follows:
The respondent carriers in these awards adopted Article IV of the August 21, 1954 Agreement, paragraph 2 of which reads as follows:
impossible for carrier to issue a call for service "pursuant to the rules of the applicable agreement" is nevertheless to be considered available for service on those days. In other words, the Referee's interpretation of availability in applying Section 3 includes employes who deliberately have made themselves unavailable.
Employes refusing to make themselves available for relief work pursuant to the applicable rule would be relieved of any obligation under the controlling agreement to protect service on the days surrounding a holiday, and the entire burden of protecting service on those dates would fall on the employes who made themselves available, yet the unavailable would also qualify for holiday pay.
In yet another case, Docket No. 4055 (Tennessee Cent.-Machinists) Award No. 5062, the Referee awarded holiday pay to employes who were notified to return to regular service on their former positions one month after the holiday. In other words, these employes -who made no attempt or effort to make themselves available for relief work pursuant to the rules of the applicable agreement upon their furlough-could be notified to return to work as many as three months after a holiday and still obtain holiday pay according to the ludicrous conclusions of the Board.
In Second Division Award No. 3529, Grand Trunk Western Railroad Company v. Carmen, Referee Mortimer Stone participating, involving Article IV of the August 21, 1954 Agreement, the majority stated:
Also, in Second Division Award No. 4479, Norfolk & Western Railway Co. v. Sheet Metal Workers, Referee Jacob Seidenberg participating, which involved Article IV of the August 21, 1954 Agreement, the majority stated:
Still another rule that militates against the Referee's interpretation of Section 3, Article III, August 19, 1960 Agreement and the Note is that an exception in an agreement is to be strictly construed, and clearly confined to the subject matter thereof. The general plan of the holiday pay agreement is that compensated service should be performed on the two workdays surrounding the holiday. The provisions for payment in event an employe is available for such service but is not called are in the nature of an exception to the general rule, and they should be strictly construed, thereby limiting the exception to those situations clearly provided for. Only the clearest possible language demanding the interpretation for which the Referee contends could ever justify the adoption of such an interpretation. The language of Section 3, Article III, August 19, 1960 Agreement and the Note precludes such an interpretation, instead of requiring it.
Finally, and in the same vein, where any other interpretation is permissible an agreement should never be given an interpretation that permits one to do indirectly that which he is expressly prohibited from doing directly. The interpretation of "available" in the Note to Section 3, Article III, August 19, 1960 Agreement expressly forbids considering one available if he "lays off of his own accord." The Referee's interpretation would permit an employe to lay off of his own accord on the workdays surrounding a holiday by the indirect means of refusing to make himself available for a call under the applicable rules. As we have noted, a, furloughed employe who fails to make himself available for a call under the provisions of Article IV, Section 2 of the Agreement of August 21, 1954, thereby renders it impossible for the carriers to give him a call that is "issued pursuant to the rules of the applicable Agreement." He thus voluntarily holds himself out of service, lays off; yet the Referee would have us consider him available under the provisions of Section 3, Article III, August 19, 1960 Agreement. Every applicable principle of contract construction precludes the interpretation for which the Referee contends.
From a review of the record in these cases even the most uninitiated in the field of labor contracts could not arrive at the conclusions reached by the Referee. It is obvious that the Referee completely misconstrued the record before him and evidently was unable to analyze the statements and citations entered by the carriers - otherwise how could such injudicious conclusions be reached.
For the reasons stated hereinabove we dissent. This dissent also applies to Awards Nos. 5120 and 5123.
Docket No. 4333 (Award No. 5077) encompassed an additional condition not found in the other dockets covered by this dissent. In this docket the Referee found that an employe on vacation must be given additional pay for a holiday that fell within his vacation period. This is a complete departure from many prior awards (given to the Referee at the time of discussion) of this Division which. have held as in Award No. 3477 that-
Also see Second Division Awards Nos. 2212, 22'77, 2291, 2302, 2339, 2345, 2346, 2347, 2848, 2349, 2571, 2663, 2696, 2800, 3284, 3518, 3557, 3565, 3866 and 4283.
On this particular issue the employes presented no evidence which would overturn the prior holdings and give the Referee cause for such an erroneous holding as found in Docket No. 4333, Award No. 5077.
Since no reason is offered for setting aside our prior awards and since no agreement rule can be found which required any additional pay under the subject factual circumstances, we are compelled to believe that the Referee did not give a judicious review of the evidence presented to him in this case-
As to Award No. 5134: It has always been the established and accepted understanding and practice on this property, prior to the claim in this case, to consider that a mutually agreeable postponement of a scheduled conference date by either the employes or the carrier to a mutually satisfactory future date automatically extended the 60-day period for rendering a decision under the time limit on claims rules by the length of the agreed-upon postponement.
It has never previously been considered necessary by practice or understanding by either the employes or the carrier to formally agree in writing that the 60-day period for rendering a decision under the time limit on claims rules was extended by the length of the agreed-upon postponement when a postponement was mutually agreed-upon.
Carrier cited numerous cases to show that the postponement of scheduled conferences has always extended the time for rendering a decision under the provisions of time limit on claims rule and no special agreement granting a specific extension of time was required.
It seems obvious that to mutually agree to a future date for conference would automatically extend the 60-day period otherwise what would be the use of having a conference-it would be a useless gesture. In this particular case at one point the general chairman requested a postponement to another mutually satisfactory date and under these circumstances surely the carrier could only believe that the time was mutually extended.
It is the policy of the carrier that it is only after a conference is held to discuss a claim or grievance that a conference record is prepared containing the decision rendered at the conference and copy subsequently mailed to the general chairman.
The Referee states the citations offered by the carrier differ from the factual situation in this claim-they do not. For example, Award No. 3685 of this Division supports the position of the carrier. In that award Referee Johnson states:
"If the time limit had been insisted upon the matter would have been closed and out of the Superintendent's hands, and he would have had no authority to consider or decide it; consequently, there would have been no occasion to ask about, agree to or participate in a conference with him. The circumstances therefore evidence or con stitute an agreement to extend the time limit, which had already run. No contention is made that under the Rule the agreement for extension must be made in any certain way, or before the 60 day period for decision has elapsed." (Emphasis ours.) For the reasons stated hereinabove we dissent.