Form 1 NATIONAL RAIIROAD ADJLBTMENT BOARD Award No.
8812
SECOND DIVISION Docket No.
8646-T
2-SPT-MA-'81
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
( International Association of Machinists and
Parties to Dispute: Aerospace Workers
Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That the Carrier has taken the position the operation of a geometry
car does not fall under the Machinist Classification of Work, and gave
Machinist P. W. Laughlin a leave-of-absence to fill such a position in
violation of the controlling Agreement effective April
15, 1967,
as
amended.
2. That, accordingly, Machinist P. W. Laughlin's name be removed from the
System Maintenance of Way Seniority Roster Effective January 1,
1979.,
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 carrix,: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.
Parties to said dispute waived right of appearance at hearing thereon.
The record indicates that the claimant was employed on July 2,
1974
as a
new eploye and entered the service of the Carrier as an Apprentice Machinist.
On February
17, 1976,
Mr. Laughlin was assigned as a set up Apprentice Machinist
in accordance with Vacancy Bulletin No.
16.
On May 1,
1978,
he assumed the
position of Track Geometry Car Operator. Effective March 1,
1979,
he was promoted
to Assistant Supervisor, and from May 1,
1978
through the present time, Mr.
Laughlin has been on leave of absence.
Machinist P. W. Laughlin holds seniority date of January 1,
1978
with
Southern Pacific Transportation Company (Texas and Louisiana Lines) in their System
Maintenance of Way Repair Shop at Houston, Texas.
On May 1,
1978,
Machinist Laughlin was assigned to position No.
876,
Track
Geometry Car Operator. Due to that assignment, Carrier was requested to remove
Machinist Laughlin from the
1979
Seniority Roster, by letter dated December 31,
1978,
from Local Chairman M. R. Byer.
Award No. 8812
Form 1
Docket No. 8646-T
Page 2 2-SPT-MA-'81
On July
13
and October 11,
1978,
Machinists' General Chairman Hixon protested
the inclusion of Mr. Laughlin's name on the Seniority Roster of Machinists. On
April 2,
1979,
the General Chairman again protested the seniority of Mr. Laughlin
as a Machinist, alleging Geometry Car Work did not come under the scope of the
Machinists' Agreement.
The organization contends violation of the Rules governing Leave of Absence
(Rule
18)
which sets forth:
"Unlimited leave of absence will be granted in case of
sickness or in case of official promotion, either with
the Company or with the Organization.
When the requirements of the service will permit, employees,
on request, will be granted leave of absence for a limited
time with privilege of renewal. An employee absent on leave
who engages in other employment will lose his seniorit unless
specia provision shall have been made therefor by the Manager
of Personnel and General Chairman representing his craft.
emphasis added
The arbitrary refusal of a reasonable amount of leave to
employees when they can be spared, or failures to handle
promptly cases involving sickness or business matters of
serious importance to the employee, is an improper practice
and may be handled as unjust treatment under this agreement." -
The Organization contends Mr. Laughlin, for over a five month period had
been assigned as an operator and it is the Machinist Organization's position
"that if the operator's classification on the Geometry Car does not fall under
the Machinist Classification
...
Mr. Laughlin would have been gainfully employed
in another classification, if that is to be the determination and therefore is
not entitled to a leave of absence without the permission of the General Chairman
under the applicable portion of the Agreement in that he was not on a (an)
excepted position as covered under the controlling Agreement."
The Organization argues that an individual assigned a position as a Track
Geometry Car Operator, is not entitled to the protection of their seniority in
their former craft, anymore so than one would, if they became employed as a
Fireman, Engineer, or any of the numerous crafts in the industry under the
Carrier's jurisdiction.
The Carrier raises as a defense the contentions that Rule 16 of the applicable
Agreement deals with promotions and provides that "men assigned to special duties
outside the scope of this Agreement, shall retain their seniority in their craft
00.11
It is the Carrier's position that Mr. Laughlin is fully qualified for the
protections of this provision.
On May 1,
1978,
Mr. Paul Wesley Laughlin was promoted to Position No.
876,
Track Geometry Car Operator. Form C.S. 2350, Change in Employees, which reflects
this promotion, was furnished and copy was attached to the submission as Carrier's VW
Exhibit "C ", as well as copy of Form 2120 of April 25,
1978.
Form 1 Award No.
8812
Page 3 Docket No. 846-T
2-SPT-MA-'81
Effective March 1,
1979,
Mr. Laughlin was again promoted to position of
Assistant Supervisor, and copy of Form 2120, which verified such appointment to
an excepted position, was also furnished.
On the basis of such proof of official promotion, the Carrier asserts that
Rule 18 supports Carrier's position that Mr. Laughlin was on a bona fide leave
of absence, inasmuch as that rule provides that:
"Unlimited leave of absence will be anted in case of
...
official promotion, either with the Company or with
the Organization.
There is nothing in the rules of the applicable Agreement that prevents an
employe from seeking and accepting an appointment or promotion, although the
privilege of such
appointment is
left to the Carrier.
Briefly stated, the case at issue contains these two conflicting positions:
1. Organization contends that the major portion of duties of Mr.
Paul W. Laughlin assigned as Operator on Company Geometry Car
is not covered under the Scope of the Agreement and that,
accordingly, his name should be removed from the Seniority
Roster.
whereas, the Carrier maintains that:
2. Mr. Paul W. Laughlin was on a bona fide leave of absence
following promotions, his last promotion being of a supervisory nature (excepted position), and further, that so
long as he retains such excepted position, he also retains
his seniority rights.
The baisric question before the Board in this dispute is whether or not the
change from Machinist to Geometry Car Operator constitutes a break in Mr.
Laughlin's continuity of service within the meanings of Rule 18 (Leaves of Absence),
Rule 28 (Seniority), and Rule 16 (Promotion to Foreman).
Central to the answer to that question is whether the Geometry Car Operator's
position constitutes employment outside of the Machinist Classification or is,
in fact, a bona fide official promotional position entitled to "unlimited leave, of
absence".
A careful reading of the record indicates that Mr. Laughlin's rate of
compensation increased when he changed from Machinist to Geometry Car Operator
in
1978,
and also when he became Assistant Supervisor in
1979.
The Carrier
submitted payroll records and appointment forms which support its assertion
that each of Mr. Laughlin's changes in positions were promotions with the
Company. The Organization, while noting that the Geometry Car Operator position
was "outside of the Machinists Classification" failed to demonstrate that the
change was not a promotion.
Form 1
Page 4
Award No. 8812
Docket No.
8646-T
2-SPT-MA-181
Absent any proof or evidence to the contrary, the Board finds that since
Mr. Laughlin's Geometry Car Operator's position was promotional, he was entitled
to "unlimited leave of absence" under Rule
18,
and retains his seniority in his
"craft and/or class at the point where held at the time of promotion" under
Rule 16. And we so find here.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By /
o emarie Brasch - Admin strative Assistant
Dated t Chicago, Illinois, this 10th day of November,
1981.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division