NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION




PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
THE TEXAS AND PACIFIC RAILWAY COMPANY

STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union and the Texas and Pacific Railway Company, that:




EMPLOYES' STATEMENT OF FACTS:



S. E. Pickett was an employee under the Agreement who was dismissed from the service on December 23, 1966 for violation of the provisions of the Union Shop Agreement. By the Carrier's own admission, they continued the employment of S. E. Pickett during the year 1967 for a period of 193 days. The Carrier claimed the right to hire S. E. Pickett as a new employee beginning work on February 1, 1967. Claim was filed for the violation of the Agreement when S. E. Pickett was continued in his employment and permitted to work positions covered by the scope of the Telegraphers' Agreement and claim was made for each and every telegrapher relieved by Mr. Pickett for eight hours' pay at the applicable rate of each and every day Mr. Pickett was allowed to work.




Did the Carrier violate the Agreement by continuing the employment of S. E. Pickett as a telegrapher and permitting him to work positions within the scope of this Agreement?






S. E. Pickett was first employed by the Carrier in December, 1960 and became a member of the Organization in accordance with the Union Shop on January 31, 1961. He continued to work as a telegrapher until he was dis-










The claim was not composed on the property and has been progressed to your Board.


OPINION OF BOARD: S. E. Pickett was employed by Carrier as a Telegraph Operator on October 17, 1960. His employment was terminated December 23, 1966, pursuant to Section 5 of the Union Shop Agreement. Pickett, thereafter, made application to Carrier, dated January 10, 1967, for employment as a Telegrapher. He was hired, in response to said application, on February 1, 1967-Carrier says "as a new employe without any preexisting right or priveleges."


Carrier admits that Pickett has been assigned to Telegraphers' work since February 1, 1967. Petitioner filed Claim, as set forth in Statement of Claim, supra, on November S, 1967.




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to comply with the Union Shop Agreement he was not thereafter eligible for reemployment by Carrier as a Telegrapher.

It is Carrier's position that it was "not precluded or prohibited from a bona fide employment of a qualified telegrapher (Pickett) as was done here merely because his service had previously been terminated by reason of his failure to comply with the provisions of the Union shop Agreement"

Resolution of the issue is pivoted on interpretation and application of Section 2. Eleventh. of the Railway Labor Act, as amended, particularly the following provisions:




It is uncontroverted that: (1) Picket did not tender to Petitioner, at any time, the periodic dues, initiation fees and assessments which were contractually due to Petitioner and was the cause of his discharge, on December 23, 1966, for violation of the Union Shop Agreement; (2) Pickett made any tender of periodic dues, initiation fees and assessments to Petitioner after his reemployment as a Telegrapher on February 1, 1967; or, made any arrangements to have same paid as provided in Section 2. Eleventh (b) of the Act, supra.



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eral Chairman to Petitioner's General Secretary and Treasurer and its District Chairman:




While the quotation, as it stands in the record, has no evidentiary value, we will assume, arguendo, that the letter was in fact written. However, it is not a defense for failure to comply with the Act. The statutory duty "to tender" is vested in the individual employe. Pickett made no tender at anytime; ergo, he was not statutorally eligible for continued employment as a telegrapher.


Carrier's defense that it was free to hire Pickett "as a new employe" on February 1, 1967, is a ruse which if accepted as a premise would permit continued employment of an employe, and permit the employe, in conspiracy with Carrier, to evade the Union Shop Agreement. For example, an employe could be discharged on one day for failure to comply with the Union Shop Agreement - rehired as a new employe by Carrier on the following day - and - this procedure could be, relative to the same employe, continued ad infinitum. That such would be contrary to the legislative intent is obvious.


An employe holding a position which comes under a Union Shop Agreement is personally charged with compliance with its terms. Insofar as such an Agreement is concerned the employe holds the keys to the door of his continuing employment eligibility. See and compare our Awards 9916, 10649, 16868.


There are ways that Pickett can reestablish his eligibility for reemployment as a Telegrapher by Carrier, But, it is not the function of this Board to give such advice. Our jurisdiction is limited to interpretation and application of the Union Shop Agreement and the Railway Labor Act, in the light of the facts of record in a particular dispute properly before us.


Carrier avers that: (1) the Claim is not valid for the reason that no claimant has been named or is readily identified as required by Article V of the August 21, 1954 Agreement; and (2) the date said Claim commences and ends has not been specified.


Carrier has shown on page 3 of its Submission (Record p. 35) that its records show the dates that Pickett relieved a telegrapher. Certainly, the records must show the position on which Pickett relieved on each particular day that he worked as a Telegrapher since February 1, 1967. Therefore, the Claimants within the contemplation of paragraph 2 of the Claim are readily identifiable and Article V is satisfied in that regard.


Since this is a continuing Claim the August 21, 1954 Agreement is satisfied by the period prescribed in paragraph 2: "retroactive sixty days from the date of this claim and continuing on a daily basis thereafter until the violation shall have been corrected." (Emphasis supplied.) This is legal certainty.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:




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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


Executive Secretary Dated at Chicago, Illinios, this 12th day of June 1970.

Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.
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