NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
William II. Coburn, Referee
PARTIES
TO
DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
THE ATCHISON, TOPEKA AND SANTA FE
RAILWAY COMPANY
(Western Lines)
STATEMENT OF CLAIM: Claim of the General Committee of The
Order of Railroad Telegraphers on the Atchison, Topeka 8s Santa Fe Railway
System that:
1. The Carrier violated the Agreement between the parties when,
on October 26, 1956, it failed and refused to assign Mrs. Viola Reeves,
the senior bidder, to a position of Telegrapher-Clerk at Trinidad,
Colorado, and
2. The Carrier shall pay Mrs. Viola Reeves, beginning October
26, 1956, and continuing each day thereafter, that she is held off
the Telegrapher-Clerk position at Trinidad, in addition to what she
had been paid for services performed at the straight time rate on
other positions:
A. The equivalent of eight hours' pay at the straight
time rate, on other than rest days, within the hours of the
Trinidad position;
B. The equivalent of time and one-half rate for all work
performed on rest days of said Trinidad position;
C. The equivalent of time and one-half rate for all work
performed outside the assigned hours of said Trinidad
position; and
D. Actual expenses incurred.
EMPLOYES' STATEMENT OF FACTS: An Agreement between the
parties, bearing effective date of June 1, 1951, is in evidence.
As indicated by Employes' Exhibit No. 1 attached hereto and made part
hereof, the Carrier issued Telegraphers' Bulletin No. 39, dated October 10,
1956, advertising a vacancy on a position of Telegrapher-Clerk at Trinidad,
Colorado, hours 11:00 P. M. to 7:00 A. M., five days per week, including holidays with assigned rest days Wednesday and Thursday, rate $2.045 per hour.
This rate is subject to future increases or decreases.
[4477
12979-27
473
In conclusion, the Carrier respectfully asserts that the Employes' claim is
wholly without support under the agreement rules and should be denied in its
entirety for the reasons expressed herein. The Carrier also wishes to point out
that the Employes claim for penalties in behalf of Mrs. Reeves retroactively
to October 26, 1956 is not only unreasonable and without support, but is, moreover, improper for the reason that Mrs. Reeves did not return to active service
from leave of absence until November 15, 1956, and could not possibly have
a claim for penalty compensation while on leave of absence.
(Exhibits not reproduced.)
OPINION OF BOARD:
The sole issue here is whether the effective Agreement prevents an employe, while on leave of absence, from exercising his bidding and assignment rights.
The essential facts are not in dispute. Claimant was the senior qualified
applicant for the position of third trick telegrapher clerk at Trinidad, Colorado.
The vacancy on that position was bulletined while Claimant was on leave of
absence. She bid for it but an employe junior to her in seniority was assigned.
The Carrier contends that by reason of Claimant's having requested and
obtained a leave of absence, she thus had removed herself from active service
and, accordingly, was not an employe qualified to place a bid for the vacancy.
Carrier cites Section 1 (d) of Article XVIII and past practice on this property
as support for its position. Section 1 (d) reads as follows:
"Section 1-d. An employe returning from leave of absence granted
under these Sections 1 may resume his former position if it has not
been abolished or taken by a senior employe through the exercise of
seniority displacement rights or take his place on the extra list and,
except as otherwise provided in Article XXI, Section 10-g, employes
displaced thereby will have the same rights. If his former position
has been abolished or taken by a senior employe through the exercise
of seniority displacement rights, he may exercise displacement rights
in the manner prescribed in Article XX, Section 15-a or 15-b, or
Article XXI, Sections 11 dependent upon whether he was in road or
relay service when leave of absence was granted."
The Employes place primary reliance on 6-a of Article XX, which says:
"Section 6-a. When new positions are created or when permanent
vacancies occur, they will be promptly bulletined as per Section 10-a
of this Article XX to all employes on the seniority district; the successful bidder to be promptly notified, and placed on the position
within thirty (30) days after close of bulletin. If not so placed within
thirty (30) days the employe will be paid, beginning with the 31st
day after close of bulletin, as provided in Section 2-a of Article X."
Article XVIII, entitled "Leave of Absence", sets out the conditions upon
which employes may seek and obtain leave from active service, as well as other
rules pertaining to conduct while on leave and rights upon return to service.
Section 1 (d), relied on by Carrier provides a method under which a returning
employe may resume his former position, take his place on an extra list, or
exercise displacement rights. Neither this nor any other section of Article
XVIII properly may be interpreted to express or imply that an employe while
on leave may not exercise those bidding and assignment rights so clearly
granted by Section 6-a of Article XX.
12979--23
474
As to Carrier's affirmative defense based upon an alleged practice to
refuse to accept bids from employes on leave of absence, it suffices to say that
even had the fact of such practice been conclusively established, it could not
prevail as against the rules of the effective Agreement. (See Award 6144).
The language of Section 6-a of Article XX is clear and unambiguous. It permits
of no exceptions or modifications, express or implied. It applies directly and
specifically to the agreed-upon facts of this case and is, therefore, controlling.
Accordingly, Part 1 of the Claim is sustained; Part 2 will be sustained
but only from and after the date Claimant's leave of absence expired and she
became available for service.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained to extent shown in Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 21st day of October 1964.