The Second Division consisted of the regular members and in addition Referee Edward L. Suntrup when award was rendered.
( National Conference of Firemen & Oilers, S.E.I.U. PARTIES TO DISPUTE:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
On January 25,1989 the Claimant received a separation allowance of $30,000.00 from the Carrier. He had worked as a member of the Clerk's craft for some 28 years. Form 1 Award No. 13449
After signing this release in 1989, R. V. Lochhead, Claimant to the instant case, was subsequently rehired as a new employee by the Carrier on July 8,1996 as a member of the F&O craft. On January 2, 1997 a claim was filed on behalf of Mr. Lochhead by the General Chairman of the F&O, Spokane, Washington. According to the claim, Mr. Lochhead should have been given full credit for his prior service with the Carrier under Article VIII, Section 1(c) of the October 9, 1996 National Railroad (Settlement) Agreement which became effective on October 19, 1996. The language at bar reads as follows: Form 1 Award No. 13449
The claim was denied on grounds that the Claimant had resigned under terms of the separation Agreement cited in the foregoing and was rehired as a new employee. Thus, according to the Carrier, the Claimant did not qualify for ". . . previous credit toward completion of the entry rate period . . . ." Absent settlement of this dispute on property it was docketed before the Second Division for final adjudication.
According to argument by the Organization there are no restrictions contained in Article VIII, such as resigning from service under any particular circumstances, which would ". .. deny the Claimant from receiving his previous service credit towards the completion of his entry rate period . . . ." Therefore, according to the Organization, the Claimant should have received the 100% pay rate from the date of January 17,1997 and thereafter.
A review of the record shows that there was a seven year break in service between the time when the Claimant took his 1989 separation allowance as a Clerk and then rehired off the Southern Pacific (now the Union Pacific) as a Fireman and Oiler. After he was hired by the Southern Pacific on July 8, 1996 the new October 9, 1996 Agreement went into effect. According to the Organization the language of Article VIII, Section 1(C) of that Agreement superseded the earlier 1989 separation allowance contract which the Claimant had signed. According to the Organization the new 1996 Agreement provided the Claimant with benefits which he had explicitly forfeited in that earlier separation agreement.
The Board disagrees with the Organization. The language of the 1989 separation agreement is clear and unambiguous. In that agreement the Claimant relinquished his seniority rights ". . . as well as any rights and benefits under any merger or other . . . arrangement...." This language cannot but cover the merger of the Union Pacific and the Southern Pacific after 1989 albeit via the earlier merger of the Denver & Rio Grande Western with the Southern Pacific. Obviously, the Claimant did not give away his rights and benefits in the 1989 separation agreement. He sold them. Having sold them he cannot now request back what he sold all the while keeping the sum from the Form 1 Award No. 13449
sale. But the separation agreement also places other obligations on the Claimant. This agreement which he signed also states that the Claimant would not contemplate actions against the Carrier of the type which the instant claim is precisely representative. According to the separation Agreement the Claimant also agreed to ". . . release and forever discharge the Company from any and all claims . . . and liabilities of any kind . . . arising out of (his) employment at, or termination of (his) employment at, the Company . . . ."
The Carrier references earlier Award 56 of Public Law Board 3986 off the Southern Pacific - Western Lines where the fact pattern is somewhat comparable to that of the instant case. While there is no need here to cite such precedent since the determinations of the Board on merits here are sufficient unto themselves that earlier Award does state, applicable to the instant case, that " . . . the legal status of (the Claimant's employment) relationship was forfeited, and . . . ceased to exist, when (he) sold it for a sum of money under title of a separation allowance (and) under such a contract former seniority rights are irrevocable precisely because they (were) exchanged for something of value . . . ." We can find nothing in the language of the new October 9, 1996 Agreement which would warrant the conclusion that the reasoning used in that earlier Award might not be applicable to the instant case.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.