NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-19762
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7087)
that:
1) Carrier violated the terms of Mediation Agreement Case A-8853
Sub-No. 1 (BRAC) dated February 25, 1971 when it failed to pay employe Charles
Beasley the retroactive pay increase as required therein.
2) Carrier shall now be required to pay employe Beasley an additional
57, (five percent) for all compensation received for the period January 1, 1970
to and including August 9, 1970.
3) Carrier shall be required to pay on the total amount claimed
in Item 2 above, 77 (seven percent) as interest commencing March 15, 1971
and compounded annually until this claim is paid in full.
OPINION OF BOARD: The following statement of facts in Carrier's Submission
stand uncontroverted in the record.
Claimant Charles Beasley was a check clerk.
As a check clerk he was primarily responsible for
receiving and physically checking in lading delivered
to a specific area in any type of unit to determine
if the amount of lading actually delivered corresponded
with the units listed on Bill of Lading. If the total
number of units actually delivered and unloaded corresponded with the Bill of Lading, the delivery w
receipted by Mr. Beasley and from the moment receipted,
that which was receipted for became the sole responsibility of the Carrier to effect delivery of in
exact quantity and condition as it was received.
Any shortage that may have occurred between what was
receipted for by the check clerk and that which was
actually delivered by the Carrier, the Carrier was
liable for.
On July 30, 1970 a freight trailer was assigned
to unloading space in an area specifically assigned
to Claimant Beasley. Near the end of claimant's
shift, the trailer was not completely unloaded so
Mr. Beasley, contrary to instructions and requirements of a check clerk, receipted for the lading
which was still on the freight trailer, and instruc-
Award Number 19742 Page 2
Docket Number CL-19762
ted the driver to complete the unloading thereof.
Then, not waiting for the unloading to be completed,
Mr. Beasley left his assigned area. In other words,
Beasley receipted for lading not received, thus
obligating the Carrier to be solely liable for that
lading.
Fortunately, the freight trailer driver, instead
of closing the freight trailer door and driving off
with the lading to dispose of it as he desired, sought
out a foreman on the dock and enlisted his assistance
in this matter.
At the start of his day on July 31, 1970 Mr.
Beasley admitted to a foreman of having receipted
for lading not actually received and further admitted
he had told no one about the partially unloaded
trailer and what he had done.
In the afternoon of July 31, 1970 in the presence of two of Carrier's supervisors, Mr. Beasley
after reading the notice of charges, refused to receipt or accept said notice. Under these circumsta
notice of charges was mailed to Mr. Beasley's home
address via Certified Mail - Return Receipt Requested.
The investigation was held as scheduled on August
5, 1970 and neither Mr. Beasley nor his representative
appeared. As a result of evidence adduced at the
investigation, Mr. Beasley was notified on August
10, 1970 that his services with the Carrier were
terminated.
The August 10, 1970, notification to Claimant, signed by the Freight Agent,
reads in material part:
After giving due consideration to testimony
developed at investigation held at Galewoad on August
5. 1970 in connection with charges on which you were
advised in notice dated July 31. 1970 and as a result
of your failure to properly accomplish your Check
Clerk duties on July 30, 1970.
,t
,r
X Your services with the Company are ter
minated effective August 10, 1970.
.>;~
Award Number 19742 Page 3
Docket Number CL-19762
In its Submission Clerks state: "Claim for reinstatement (of
claimant) with all rights unimpaired and compensation for losses sustained
is in the process of handling with the Third Division, N.R.A.B."
The sole issues now before us are whether for the period January
1, 1970 to and inclusive of August 9, 1970, Claimant was contractually entitled
to the retroactive pay increase as provided for in ARTICLE I - WAGE INCREASE,
Section 1 (i) in Mediation Agreement Case No. A-8853, Sub-No. 1 (BRAC) plus
interest as alleged is paragraph 3 of the Claim.
The pertinent provisions of said Mediation Agreement read:
ARTICLE I - WAGE INCREASES
Section 1. Effective January 1, 1970, all hourly,
daily, weekly, monthly and piece-work rates of pay
in effect on December 31, 1969 for employees covered
by this agreement will be increased in the amount
of 5 percent applied so as to give effect to this
increase in pay irrespective of the method of payment. This increase is in lieu of the increase
provided effective January 1, 1970., by Public Law
91-541. The increase provided for is this Section 1
shall be applied as follows:
* * * *
(i) Coverage -
All employees who had an employment relationship
after December 31, 1969, shall receive the amounts
to which they are entitled under this Section 1
regardless of whether they are now in the employ
of the carrier except persona who prior to December
11, 1970 have voluntarily left the service of the
carrier other than to retire or who have failed to
respond to a call-back to service to which they
were obligated to respond under the Rules Agreement .
...
(Emphasis supplied.)
The pivotal issue, on the merits, is whether Claimant's employment
by Carrier was "voluntarily" terminated by Claimant; or, as to him, was the
termination "involuntary."
. ;.^i .
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Award Number 19742 Page 4
Docket Number CL-19762
ARTICLE I, Section 1 (i), supra, defines: (1) employee eligible to
receive the retroactive wage increase; and (2) employee who had an employment
relationship with Carrier after December 31, 1969, expressly excepted from
contractual entitlement to the retroactive wage increase. Not within the
exceptions are employees whose employment relationship is terminated as a
result of disciplinary proceedings ("involuntary").
It is a principle of contract construction that where the instrument
expresses an exception or exceptions no others can be implied. Applying that
principle we are compelled to hold that an employe whose employment is terminated by Carrier exercis
restraints of the collective bargaining agreement - - is "involuntarily"
dismissed from service; and, consequently remains eligible for the retroactive
pay provided for in Article I, Section 1 (i) of the Mediation Agreement.
We, therefore, will sustain paragraphs 1 and 2 of the Claim.
As to paragraph 3 of the Claim, we will deny it. The preponderance
of the case law of four Divisions of the National Railroad Adjustment Board,
with only one or two exceptions, support the denial.
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;
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
Claim sustained in part and denied in part.
A WAR D
Carrier violated paragraph of the Claim as alleged therein.
Paragraph 2 of the Claim is a proper remedy for Carrier's violation
of paragraph 1.
Paragraph 3 of the Claim is denied for lack of jurisdiction.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive ecretary
Dated at Chicago, Illinois, this 11th day of May 1973.