The Second Division consisted of the regular members and in
addition Referee George S. Ives when award was rendered.
SYSTEM FEDERATION NO. 152, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Sheet Metal Workers)
PENN CENTRAL COMPANY
(Formerly Pennsylvania R. R. Co.)
EMPLOYES' STATEMENT OF FACTS: Furloughed Sheet Metal Worker A. E. Graves, hereinafter referred to as claimant, held the position of assigned Laborer with the Pennsylvania Railroad, hereinafter referred to as the carrier, at Columbus, Ohio, prior to October 16, 1964. He possessed the following seniority in the following classes:
In connection with the carrier's sale of its Sandusky Branch to the Norfolk and Western Railway Company, effective October 16, 1964, Claimant A. E. Graves was offered and accepted employment as a Laborer with the Norfolk and Western Railway Company, effective November 1, 1964. A copy of a form, signed by the claimant, indicating his desire to accept employment on the N&W, is attached as Exhibit No. 1.
said Agreements, which constitute the applicable Agreements between or concerning 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 or 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 Agreements between the parties to them. To grant the protest of the Employes in this case would require the Board to disregard the Agreements 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 or established by practice. The Board has no jurisdiction or authority to take any such action. See Second Division Award No. 1122, Third Division Award Nos. 6803, 4763 and Fourth Division Award No. 242.
The Carrier has shown that the Claimant is no longer an employe of this Carrier because of his acceptance of employment with the N&W. The Carrier has also shown that, because he has no employment relationship with it, the Claimant has no right to protest under a Schedule Agreement rule which applies only to employes. Therefore, the Carrier respectfully requests that your Beard dismiss or deny the protest of the Employes in this matter.
The Carrier demands strict proof by competent evidence of all facts relied upon by the Employes, with the right to test the same by crossexamination, the right to produce competent evidence it its own behalf at a proper trial of this matter and the establishment of a record of all of the same.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record anti all the evidence, finds that:
The carrier or carriers and the employe or employ es 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 instant dispute arose out of the removal of claimant's name from the 1965 Sheet Metal Workers' Roster at Columbus, Ohio, which Petitioner contends was violative of Rules 3-F-2 and 3-F-3 of the Schedule Agreement between System Federation No. 152 and Carrier. The essential facts are not in issue and the pivotal question for determination is whether claimant forfeited his seniority rights as a furloughed sheet metal worker on the Pennsylvania Railroad when he accepted employment as a laborer with the Norfolk and Western Railway Company pursuant to the terms of an Agreement between said Carrier and its Employes represented by Transport Workers Union of America, AFL-CIO; System Federation No. 16 and System
Federation No. 152 effective November 1, 1964 as well as Section 3 of the Agreement for Protection of Employes between said Carrier and twenty (20) labor organizations effective January 10, 1962.
The issue herein resulted directly from the sale of Carrier's SanduskyBranch to the Norfolk and Western Railway Company effectve October 16, 1964. On the date of transfer, claimant was regularly employed as a laborer on the Sandusky Branch. He also held seniority both as a furloughed Sheet Metal Worker and Sheet Metal Worker Helper in the Columbus Seniority District. In accordance with the protection afforded by the above mentioned Agreements, claimant and other similarly situated employes accepted employment with the Norfolk and Western Railway Company, and continued working in their respective classifications on the former Sandusky Branch of the Pennsylvania Railroad. It is undisputed that claimant forfeited his seniority as a laborer on the Pennsylvania Railroad when he signed a form advising that he accepted employment with the Norfolk and Western Railway under the terms and provisions of the November 1, 1964 Agreement and Section 3 of the January 10, 1962 Agreement.
Thereafter, Carrier posted the Sheet Metal Workers Craft seniority roster for the Columbus District on February 26, 1965 without inclusion of the claimant's name on the theory that claimant in accepting employment with the Norfolk and Western Railway Company had forfeited all seniority rights. as an employe of the Pennsylvania Railroad Company.
In the first instance, Carrier avers that Petitioner is no longer the duly designated and authorized representative of claimant, and that System Federation No. 16 as well as the Norfolk and Western Railway Company are necessary parties entitled to due notice of all hearings under Section 3, First (i) of the Railway Labor Act, as amended. The record reveals that System Federation No. 152 has been specifically authorized by claimant to represent him in this dispute concerning his status as a furloughed Sheet Metal Worker with Carrier and that System Federation No. 16 as well as. the Norfolk and Western Railway Company have been duly notified of the pendency of this proceeding.
As to the merits of the dispute, it is necessary to determine whether claimant's acceptance of employment with the Norfolk and Western Railway Company as a laborer on the former Sandusky Branch was properly con-_ strued by Carrier as an election by claimant to terminate his employment relationship with Carrier, including his accrued seniority rights as a furloughed Sheet Metal Worker and Sheet Metal Worker Helper.
Analysis of Section 5 (a) of the Memorandum of Agreement effective November 1, 1964, discloses that transferred employes will be removed from the seniority roster at the point they leave, which clearly indicates that claimant forfeited his seniority as a laborer with the Pennsylvania Railroad when he accepted employment on the Norfolk and Western Railway in the same classification, but we cannot construe the pertinent language of the Agreement as implying, either directly or indirectly, that such a transfer would effect more than the specific seniority roster involved in the election by the claimant. Accordingly, it would appear that claimant relinquish^d no other seniority rights with the Carrier, and that his name should have remained on the Sheet Metal Workers' seniority roster in accordance with Rules 3-F-2 and 3-F-3 of the applicable Agreement between the parties until
such time as claimant may be recalled as a Sheet Metal Worker or Sheet Metal Worker Helper. As a furloughed employe, he could obtain other employment with another railroad without severing his employment relationship with Carrier in the absence of contractual restrictions applicable to such employment while furloughed.
The Agreement of November 1, 1964 was signed by all members of System Federation No. 152, but no Sheet Metal Workers were directly affected by its terms through the sale of the Sandusky Branch to the Norfolk and Western Railway Company. Careful examination of the pertinent provisions contained in the Agreements relied on by Carrier fails to reveai contemplation by the parties of the unique situation involved herein and explicit language could have been incorporated to eliminate any ambiguity.
In view of the foregoing, we find that Carrier violated the applicable Agreement between the parties by removing claimant's name from the 1965 Sheet Metal Workers' Roster at Columbus, Ohio. Therefore, Carrier should restore claimant's name to said roster with seniority unimpaired.