STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that-
EMPLOYES' STATEMENT OF FACTS: Mr. White was formerly Chief Clerk to General Agent Waldron, Forth Worth Freight Traffic Department.
Effective August 1, 1944, Mr. White accepted a position as Traffic Representative in the Houston Agency, a position not covered by the Clerks' Agreement.
On August 28, 1944, file 61-718, Mr. White requested one year's leave of absence in order to protect his clerical seniority.
On September 1, 1944, file 61-718-3, Mr. Falk, Freight Traffic Manager, granted Mr. White a leave of absence for one year effective August 1, 1944.
Mr. White's leave of absence expired August 1, 1945, and he did not, nor has he to date requested that his leave be continued.
POSITION OF EMPLOYES: On March 9, 1954, Division Chairman Williams addressed a letter to Mr. E. J. Falk, Freight Traffic Manager, copy of letter submitted as Exhibit A, advising there were four employes who did not have proper leave of absence to protect their clerical seniority while working positions not covered by the Agreement, and requested that their names be removed from the seniority roster.
Your Honorable Board will note that Mr. Falk attached a copy of letter dated March 25, 1954, file 953-5-(TTD) from Chief Personnel Officer, Mr. T.
It is most unfortunate, and difficult to understand, that this Organization should be so determined, putting forth the extreme effort that it is, to deprive these individuals of their justly earned clerical seniority. In what way, if any, these individuals have aroused the enmity of the Organization to the extent of prompting the representatives of the Organization to take the steps they are is a mystery to the Carrier-perhaps it can and will be explained by them in their submission.
In any event it was not and is not the intent, desire or purpose of the Carrier to be a party to any such scheme as here devised, having for its purpose the result here contended for by the Employes. Furthermore, the Carrier does not believe that either it or the representatives of the Clerks' Organization has the right or authority to do so. In this connection your Board in Award 3846 said:
This same Organization progressing the instant case has previously agreed with the foregoing quoted statement of your Board in Award 4987. In Awards 3416, 3417, 3418, 6661 covering previous cases on this property, the Employes, after quoting and explaining that Rule 3 provides the method under which seniority rights are established, went on to say that: "These seniority rights are very valuable rights * · *."
It is apparent, however, that the Employes do not consider that seniority rights are "valuable rights" so far as the several individuals here involved are concerned. It is likewise obvious, in view of the peculiar position taken by the Employes in this case, that the real purpose and intent of the parties in negotiating the Memorandum of Agreement dated November 11, 1952 (Exhibit "B") appear to have been as opposed as danger is to safety, as sickness is to health, as weakness to strength, and darkness to light. Again we can only wonder, and ask, why this strange and reversed attitude on the part of the Organization in attempting to deprive these particular employes of their valuable seniority rights?
In the light of all the facts and circumstances set forth herein it is the position of Carrier: (1) that the position of the Employes is unwarranted, unjustified and wholly erroneous; and (2) that to sustain this erroneous position of the Employes would result in irreparable damage to the individuals who would be adversely affected thereby.
Therefore, the contention and request of the Employes should be unqualifiedly denied.
The substance of matters contained herein has been the subject of discussion in correspondence and/or conference between the parties.
OPINION OF BOARD: Certain facts in this case are not in dispute. Briefly they are that Claimant F. W. White had accumulated seniority prior to August 1, 1944. 8235-15 697
On that date he accepted a position as Traffic Representative (Freight Solicitor), a position not covered by the Clerks' Agreement.
Under date of August 28, 1944 Claimant asked for and received "one year's leave of absence in order to protect my clerical seniority from August 1:"
That leave of absence, by its own terms, expired August 1, 1945. The parties are in agreement that at no time prior to August 1, 1945 did Claimant White request a renewal or extension of his leave of absence.
Here it is proper to produce a Memorandum of Agreement, proposed by Organization November 5, 1952, accepted by Carrier November 6, 1952, and made effective as of November 1, 1952. It is a revision of Rule 3 (d). The then revised rule read:
The new material added to Rule 3 (d) by this Memorandum of Agreement has been emphasized.
One case had previously been handled by this Division covering Rule 3 (d). That was Award 3476 (Simmons) which held:
Thus, Award 3476, dated March 17, 1947, interpreted "official positions" to include all positions not covered by the applicable agreement. Yet, more than five years later the parties themselves, by their Memorandum of Agreement, stipulate that official positions "includes only" positions that have been so defined by the Interstate Commerce Commission.
Inasmuch as the Organization on September 23, 1955, served written notice on this Division of its intention to file within 30 days its ex parte submission in support of its present claim, and, in recognition of the fact the parties had agreed on July 19, 1955 to submit the claim of F. W. White, "and applying decision rendered by the Board (in the instant claim) to other individuals coming within the same category," we will treat only with the claims of the parties as they affect White.
At the time White accepted promotion to the post of Traffic Representative he was in a position covered by and subject to the terms of the Agreement then in existence.
Rule 3 (d) at that time referred only to "official positions." It was not until November 6, 1952-more than eight years later-that the title "official positions" was restricted to the definition of the Interstate Commerce Commission.
In essence then, White was under an agreement which said, having been promoted to an "official position", he "shall" retain all rights and continue to accumulate seniority in the Seniority District from which promoted. The 8235-16 6919
term "official position" had not then been interpreted by this Division, and such interpretation was not to come until March 17, 1947 in Award 3476.
Rule 35, however, was in existence on August 1, 1944. It covers Leave of Absence for an employe "desiring to remain away from service thirty days or more" and for a Leave of Absence "in excess of ninety (90) days in any twelve month period."
Such Rule provides for those desiring "to remain away from service" 30 days but not more than 90 days that they must "obtain written leave" from Management, with copy to the local Chairman. A leave of more than 90 days in any 12 month period "shall not be granted unless by agreement between the Management and the General Chairman."
We have already pointed out that White did request and obtain a leave of absence for one year. He did not seek a renewal or extension of that leave, and it is argued on behalf of Carrier that White "relied on the Carrier's assurance that such was not necessary under the Rule."
Was White obliged to seek a written leave of absence, as he did, and seek its extension at each expiration date?
We think not, for the simple reason that when he was promoted to the position of Traffic Representative he was not "remaining away from service." The only possible "service" he could remain away from was the service of the Carrier. If he was promoted to an excepted position, then he was excepted from the application of some or all of the Rules of the applicable Agreement, but he was not remaining away from the only service he could engage in, the service of his employer.
Rule 18 of the Agreement recognizes this distinction when it distinguishes between an "employe returning after leave of absence" or "when relieved of official position." It provides how either may return to a covered position in accordance with his seniority rights.
Having thus far held (1) that White's promotion August 1, 1944 was to an "official position" Award 3476; (2) that Rule 3 (d) automatically continued all his rights and seniority, and (3) that his new position in no way caused him to "remain away from service," consequently no written leave was required, we must now examine White's status at November 1, 1952 when the revisions to Rule 3 (d) became effective.
On that date, the parties agreed that employes "now filling or hereafter promoted to official positions" (only those so defined by I.C.C.) "and who have established seniority under this agreement shall retain all their rights and continue to accumulate seniority * * *."
We must and do conclude that as of October 31, 1952 White was filling what up to that time was considered an "official position," with accumulated seniority.
However, the language of Rule 3 (d) changed on November 1, 1952. As we have already noted the parties themselves agreed that
We note the Organization advised its Chairmen and correspondents under date of December 2, 1952, in part, as follows:
"It will be observed from the above that, generally speaking, positions below the rank of Division Superintendent are not officials."
Argument in behalf of Organization holds that the revised Rule 3 (d) "definitely removed him (White) from protection thereunder, and since * *
having failed to secure a new leave of absence under paragraph (a) of Rule 35, the initial leave of absence which White secured and which, as already shown, terminated on August 1, 1945, should have been renewed. * * * Having failed to do so, White did then forfeit his seniority, as made mandatory by the specific provisions of the stated Rule, reading:
We cannot however agree with that portion of argument in Carrier's behalf which concerns itself with what the parties did or did not intend in revising Rule 3 (d). It is conjecture. The Rule itself is before us.
We do agree with Carrier's position, however, that Organization's concept of the Rule would leave certain persons, previously appointed to what then had been held to be "official positions;" in a "sort of no man's land."
We have noted Organization's action on November 20, 1952 and December 2, 1952 in addressing bulletins to "all Chairmen and Correspondents;" with copy to Carrier, advising of the revisions to Rule 3 (d). Organization directed that its first bulletin be "posted on your bulletin board." It included the same instructions in its second bulletin, with the additional instruction to
Thus, argument in Organization's behalf concludes, "the Employes left no stone unturned in their sincere effort to have all employes who had been promoted to positions outside the scope of the applicable Agreement, which were net 'official positions' as covered by Rule 3 (d), protect their seniority rights by securing necessary leave of absence. * * * It was only after sixteen months of waiting for those employes involved to request a leave of absence that this claim was filed." (Emphasis theirs.)
1. If White, at November 1, 1952 was, in truth and in fact filling an "official position," he automatically continued to retain all his rights and continued to accumulate seniority. 8235-18 700
With respect to the term "official position," the Organization argues he was not in an official position because:
Yet the Organization, in this same record, wrote its chairmen and correspondents under date of December 2, 1952 and quoted the following from I.C.C. Ex Parte No. 72 (Sub. No. 1) dated July 19, 1946:
And so it might well be argued, that Claimant White, if he is "below the grade of division superintendent," would be considered as a "subordinate" official. Yet revised Rule 3(d) speaks of "official positions" without degree. It does not state "top official" or "middle official." It says simply "'official position' includes only positions that have been so defined by the Interstate Commerce Commission." And, as the Record stands, the Organization has undertaken by unilateral action to define what it believes the Interstate Commerce Commission has defined as an "official position."
Since the parties themselves agreed on the revision to Rule 3 (d) they would have the authority to jointly interpret the I.C.C. definition of "official position" from the Commission's official pronouncements. Neither party, however, has the unilateral right to interpret such "definition."