NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19852
(Brotherhood of Maintenance of Way Employee
PARTIES TO DISPUTE:
(The Akron, Canton & Youngstown Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Machine Operator C. D. Jones from service as
of June 21, 1971 for allegedly violating "Rules 427 and 448 of the Operating
Rules of the Akron, Canton & Youngstown Railroad Company" was improper, without just and suffici
of the Agreement.
(2) Machine Operator C. D. Jones be reinstated with seniority, vacation and all other rights uni
loss suffered in accordance with Rule 21.
OPINION OF BOARD: The facts relating to Claimant's dismissal, succinctly
stated, are that he was an Operator on a 16-Tool Switch
Electromatic Tamper. On May 28, 1971, during movement of the Tamper, it derailed. Tamper was reraile
was called upon to commence tamping the "tamping head and tamping bars would
neither go up or down:" A mechanic examined the machine and reported damage
to the tamping heads and tamping bars. The record contains sufficient evidence,
of probative value, that Claimant by oversight failed to secure the Tamping
heads during movement of the machine and this permitted the Tamping heads to
drift down catching on the guard rail and derailed the Tamper.
We find that: (1) Claimant was afforded due process; (2) there
is substantial evidence that the securing of the Tamping heads was a responsibility of the Claimant.
excessive. Therefore, we will award that Claimant be reinstated with seniority,
vacation and all other rights unimpaired; but as to compensation for wages
lost Carrier pay to Claimant the amount of wages he would have earned from
Carrier absent his dismissal from service until the date of his reinstatement
less what he actually earned from other sources during that period.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
I
I
Award Number 19679 Page 2
Docket Number MW-19852
That the Carrier and the Employee involved in this dispute are
respectively Carrier and Employee 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.
A W A R D
Carrier to reinstate Claimant to service with rights and compensation
as prescribed in the Opinion, supra.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:/
Executive Secretary
Dated at Chicago, Illinois, this 23rd day of March 1973.
Serial No. 270
NATIONAL
R&na=
ADJUSTMENT BOARD
TEIRD DIVISION
INTERPRETATION N0. 1 TO AWARD N0. 19679
DOCRET N0. MW-19852
NAME OF ORGANIZATION: Brotherhood of Maintenance of Way Employee
NAME OP CABRIE& Akron, Canton and Youngstown Railroad Company
Upon application of the representatives of the Employee involved
is the above Award, that this Division interpret the same is light of the
dispute between the parties as to the messing sad application, as provided
for is Section 3, First (m) of the Railway Labor Act, as approved June 21,
1934, the following interpretation is made:
In the Award, which was issued March 23, 1973, we found: (1)
Claimant was afforded dun process; (2) Carrier's finding that Claimant was
derelict is his duties was supported by substantial evidence; but, (3) the
discipline assessed by Carrier, dismissal from service, was excessive.
Having found the dismissal to be as excessive penalty we procnded to find, .
is the exercise of our jurisdiction sad judgment, that the following would
constitute a reasonable penalty:
....we will award that Claimant be reinstated with
seniority, vacation and all other rights unimpaired;
but as to compensation for wages lost Carrier pay to
Claimant the amount of wages he would have earned
from Carrier absent dismissal from service until the
date of his reinstatement less what he actually earned
from other sources during that period.
The Brotherhood of Maintenance of Way Employes did, under date
of February 8, 1974, petition this Board to interpret the Award. The question presented:
Does the awardnumt of "compensation for wages
lost" is Award 19679 contemplate that the claimant
shall be made whole for any money he was required
to spend for medical and hospital services or other
benefits which would otherwise have bean covered under
Travelers' Group Policy GA-23000 during the period the
claimant was with-held from service?
Page 2
It is MW's position that:
...the abovestated question is properly answerable
only is the affirmative. To hold otherwise would mesa
that a second deduction, not ordered by the award, would
be made from the "compensation for wages lost" by the claimant. This would be equivalent to the amou
hospital payments required of the claimant while out of service but which would have been paid by Th
had not been excessively disciplined by dismissal.
Travelers Group Policy No. GA-23000 is a contract between the Travelers Insurance Company, this nati
which provides protection for railroad employer sad their
dependents against the costly expense of medical care and
hospitalization, including maternity benefits. The premiums
due under said policy are paid is their entirety by the Carriers. Such premium payments have been co
Divisions. The Carrier Members of the Second Division expressly conceded that the insurance benefits
under Travelers Group Policy GA-23000 era regarded as wage
equivalents (Carrier's Members Reply to the concurring and
dissenting opinion filed by the Labor Members to Second
Division Award 3883).
Carrier's position can be adequately summed up by quoting its letter to the General Chairman, dated
This has reference to our telephone conversation on
October 17, 1973, regarding health and welfare benefits to
reinstated employee Carlos Jones.
As explained to you, it would not be possible to provide medical care benefits is such a case under
Contract GA 23000. If as employee is dismissed his employment relationship terminates and his ins
terminates immediately, see Article VI, Part A, 1. C, and
Article VI, Part B, 1.C(b). Moreover, premiums are payable
to Travelers is relation to only those months when an employee
readers compensated service (or, if he does not render compensated service, receives vacation pay).
Page 3
cm be paid for as employee who has been dismissed and is
reinstated after the lapse of a calendar month or more is
which he does not work. And, aside from theca premiums of
the policy contract, from a practical standpoint, the policy
contract cannot be administered on any such basis as would
make as employee's insured status in a past month depend on
whether he is reinstated at soma time is the future. (Emphasis supplied.)
The labor organizations have recognized these considerations and have provided a means for emplo
appeals era pending to preserve their insured status. The
Order of Railway Conductors cad Brakeman and the Brotherhood
of Railroad Trai~ expressly recognized them when, is 1964,
they took out Travelers Group Policy GA 696543, covering certain furloughed and retired employees, c
others who were not covered by Group Policy Contract CA 871234.
Their leaflet describing the policy stated is part:
'An employee whose insurance wader Group Policy
Contract GA 871234 is terminated due to termination of
his employment, but whose status is being considered
is proceedings, under the Railway Labor Act may enroll
for the benefits described herein for himself and/or
his dependents, provided ha corolla and makes remittance direct to The Travelers Insurance Company w
fifteen days of the date of termination of his employment:
Although leaflets describing Travelers Getup Policy
CA 23111 in its earlier years did not contain such a
statement, I understand the privilege of insuring radar
that group policy was extended discharged non-operating
employees. And, is 1968, whey the several railroad health
sad welfare pleas wars consolidated, and on the organization's past Group Policy GA 696543 and the c
policies which the other operating employee organizations
became parties to GA 23111, it was revised to contain laagnaga substantially identical to that quote
Inasmuch as Group Policy GA 23111 is available to
discharged employees as a moans of maintaining their insurance pending appeal, as employee would not
grounds is asking for retroactive payments.
Attached is copy of list of awards rendered by the
National Railroad Adjustment Board covering this subject.
Page 4
Upon consideration of the record as a whole; the Awards sad
other authorities cited by the parties; sad, the Submission of each of them
addressed to the question presented, we find and hold:
I. If as employs is dismissed for just cause, his employment
relationship terminates and his insurance accordingly terminates.
II. If an employs is dismissed by Carrier and (1) the employe
timely files claim, alleging wrongful dismissal, which is properly processed
on the property and after which this Board's jurisdiction is invoked (Section 3 First (i) of the Rai
claim and orders Carrier to reinstate the employe, the employment relationship is not severed during
to the date of his reinstatement; then, (3) a wrongfully dismissed employs
is entitled to the Agreement benefits which would accrue to him during the
period ha was wrongfully held out of service.
III. This Board is its Award found that the Claimant therein was
wrongfully dismissed by Carrier and found that a reasonable measure of discipline was the applicatio
"payment alloyed for the assigned working hours actually lost" as provided
for is Rule 21 and as prayed for in paragraph (2) of the Claim. Other than
that measure of discipline all other rights which Claimant would have enjoyed
as as employee during the period he was wrongfully held out of service did,
under our Award, stood and steeds unimpaired -- this includes his insurance
coverage under Rule 65 - HEALTH AND WELFARE PLAN.
IV. Since this Board found that Claimant was wrongfully dismissed
from service, ipso facto, Carrier's termination of his insurance under Rule
65 was wrongful and Carrier must bear the liability attached to its action.
Far the foregoing reasons the question presented is answered is
the affirmative.
Referee John H. Dorsey, who sat with the Division, as a neutral
member, whey Award No. 19679 was adopted, also participated with the Division in making this interpr
NI
ATIONAL RAILROAD ADJUS71MM BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 6th day of September 1974.
CORRECTED
Serial No. 270
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION N0. 1 TO AWARD N0. 19679
DOCKET N0. MW-19852
NAME OF ORGANIZATION: Brotherhood of Maintenance of Way Employee
NAME OF CARRIER: Akron, Canton and Youngstown Railroad Company
Upon application of the representatives of the Employee involved
is the above Award, that this Division interpret the same is light of the
dispute between the parties as to the meaning and application, as provided
for is Section 3, First (m) of the Railway Labor Act, as approved June 21,
1934, the following interpretation is made:
In the Award, which was issued March 23, 1973, we found: (1)
Claimant was afforded due process; (2) Carrier's finding that Claimant was
derelict in his duties was supported by substantial evidence; but, (3) the
discipline assessed by Carrier, dismissal from service, was excessive.
Having found the dismissal to be an excessive penalty we proceded to find,
in the exercise of our jurisdiction and judgment, that the following would
constitute a reasonable penalty:
....we will award that Claimant be reinstated with
seniority, vacation and all other rights unimpaired;
but as to compensation for wages lost Carrier pay to
Claimant the amount of wages he would have earned
from Carrier absent dismissal from service until the
date of his reinstatement less what he actually earned
from other sources during that period.
The Brotherhood of Maintenance of Way Employee did, under date
of February 8, 1974, petition this Board to interpret the Award. The question presented:
Does the awardment of "compensation for wages
lost" is Award 19679 contemplate that the claimant
shall be made whole for any money he was required
to spend for medical and hospital services or other
benefits which would otherwise have been covered under
Travelers' Group Policy GA-23000 during the period the
claimant was
with-held from
service?
Page 2
It is MW's position that:
~..the abovestated question is properly answerable
only in the affirmative. To hold otherwise would mean
that a second deduction, not ordered by the award, would
be made from the "compensation for wages lost" by the claimant. This would be equivalent to the amou
hospital payments required of the claimant while out of service but which would have been paid by Th
had not been excessively disciplined by dismissal.
Travelers Group Policy No. GA-23000 is a contract between the Travelers Insurance Company, this nati
nation's National
Railroad Labor Organizations
which provides protection for railroad employes sad their
dependents against the costly expense of medical care and
hospitalization, including maternity benefits. The premiums
due under said policy are paid is their entirety by the Carriers. Such premium payments have been co
Divisions. The Carrier Members of the Second Division expressly conceded that the insurance benefits
under Travelers Group Policy GA-23000 are regarded as wale
equivalents (Carrier's Members Reply to the concurring and
dissenting opinion filed by the Labor Members to Second
Division Award 3883).
Carrier's position can be adequately summed up by quoting its letter to the General Chairman, dated
This has reference to our telephone conversation on
October 17, 1973, regarding health and welfare benefits to
reinstated employee Carlos Jones.
As explained to you, it would not be possible to provide medical care benefits in such a case under
Contract GA 23000. If an employee is dismissed, his employment relationship terminates and his in
terminates immediately, see Article VI, Part A, 1. C, and
Article VI, Part B, 1.C(b). Moreover, premiums are payable
to Travelers is relation to only those months when an employee
renders compensated service (or, if he does not render compensated service, receives vacation pay).
Page 3
can be paid for an employee who has been dismissed and is
reinstated after the lapse of a calendar month or more in
which he does not work. And, aside from these premiums of
the policy contract, from a practical standpoint, the policy
contract cannot be administered on any such basis as would
make an employee's insured status in a past month depend on
whether he is reinstated at soma time is the future. (Emphasis supplied.)
The labor organizations have recognized these considerations and have provided a means for emplo
appeals are pending to preserve their insured status. The
Order of Railway Conductors and Brakemen and the Brotherhood
of Railroad Trainmen expressly recognized them when, in 1964,
they took out Travelers Group Policy GA 696543, covering certain furloughed and retired employees, c
others who were not covered by Group Policy Contract GA 871234.
Their leaflet describing the policy stated in part:
'An employee whose insurance under Group Policy
Contract GA 871234 is terminated due to termination of
his employment, but whose status is being considered
is proceedings, under the Railway Labor Act may enroll
for the benefits described herein for himself and/or
his dependents, provided he enrolls and makes remittance direct to The Travelers Insurance Company w
fifteen days of the date of termination of his employment.'
Although leaflets describing Travelers Group Policy
GA 23111 in its earlier years did not contain such a
statement, I understand the privilege of insuring under
that group policy was extended discharged non-operating
employees. And, is 1968, when the several railroad health
and welfare plans ware consolidated, and on the organization's past Group Policy GA 696543 an
policies which the other operating employee organizations
became parties to GA 23111, it was revised to contain language substantially identical to that quote
Inasmuch as Group Policy GA 23111 is available to
discharged employees as a means of maintaining their insurance pending appeal, an employee would not
grounds in asking for retroactive payments.
Attached is copy of list of awards rendered by the
National Railroad Adjustment Board covering this subject.
I
I
·~:fi
P-~,e 4
Upon consideration of the record as a whole: the Awards sad
other authorities cited by the parties; and, the Submission of each oJ them
addressed to the question presented, we find and hold:
I. If an employe is dismissed for just cause, his employment
relationship terminates and his insurance accordingly terminates.
II. If an employe is dismissed by Carrier and (1) the employe
timely files claim, alleging wrongful dismissal, which is properly processed
on the property and after which this Board's jurisdiction is invoked (Section 3 First (i) of the Rai
claim and orders Carrier to reinstate the employe, the employment relationship is not severed during
to the date of his reinstatement; then, (3) a wrongfully dismissed employe
is entitled to the Agreement benefits which would accrue to him during the
period he was wrongfully held out of service.
III. This Board in its Award found that the Claimant therein was
wrongfully dismissed by Carrier and found that a reasonable measure of discipline was the applicatio
"payment allowed for the assigned working hours actually lost" as provided
for in Rule 21 and as prayed for is paragraph (2) of the Claim. Other than
that measure of discipline all other rights which Claimant would have enjoyed
as as employee during the period he was wrongfully held out of service did,
under our Award, stood and stands unimpaired -- this includes his insurance
coverage under Rule 65 - HEALTH AND WELFARE PLAN.
IV. Since this Board found that Claimant was wrongfully dismissed
from service, ipso facto, Carrier's termination of his insurance under Rule
65 was wrongful and Carrier moat bear the liability attached to its action.
For the foregoing reasons the question presented is answered in
the affirmative.
Referee John H. Dorsey, who sat with the Division, as a neutral
member, when Award No. 19679 was adopted, also participated with the Division in making this interpr
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~ ~. ~~r'Q-
Executive Secretary
Dated at Chicago, Illinois, this 6th day of September 1974.
>;~
CARRIE.Tt 6~1BMS' DISSENT TO I21TE'iPR.,FTATION N0. 1 TO
_ AWARD N0. 19Cs7<j - DOCKET 110- (dW-19852 - REFEREE DOASL^L
The organization petitioned the Board for an interpretation of the fol.
lowing question:
"Does the awardment of 'co^rpensation for wages lost'
in Award
1679
contemplate that the claimant shall be
made whole for arty money he eras required to spend for
medical and hospital services or other benefits which
would otherwise have been covered under Travelers'
Group Policy GA-23000 during the period the claimant
was with-held from service?"
For the reasons set forth in the Interpretation, which go beyond the
question raised, tae question was answered in the affirmative by the Neutral.
There is no provision in the Agreement which supports such an allowance.
The Opinion of Board in Award No.
19679
stated:
but as to compensation for wages lost Carrier
pay to Claimant the a^:ount of wages he mould have
earned from Carrier absent his dismissal from service until the date of his reinstatement less what
he actually earned from other sources during that
period."
Numerous prior Awards of this Board, which adhere to the principle that
medical and hospital expenses are not embraced.within the term "wages lost" were
cited by the Carrier.
This erroneous interpretation is contrary to the well-established prece
dent of this Board and is not supported by the contract. As was so aptly stated
in a prior Award:
"Where, as here, the Board is confronted with a long
line of precedents which first postulate and then
maintain a consistent interpretation of contract
language we should refrain from disturbing what
ought to be a settled matter,"
We dissent.
~TGI
W
6 p ~~.
fi. F. N~. Braidtrood
P. C. Carter
W. B. Jone~,j
.4- 7/,n
G. L. Maylor
' A
A,
G. -1