NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19817
Joseph A .Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the National Agreement dated February 10,
1971 when it failed and refused to allow Messrs. R. C. Maynard, H. Haney, M. C.
Bowen, C. Maynard and S. Bowen retroactive pay from January 1, 1970 through
August 3, 1970 (System File MW-BRS-71-5).
(2) Messrs. R. C. Maynard, H. Haney, M. C. Bowen, C. Maynard and
S. Bowen now be allowed retroactive pay for the period referred to within
Part (1) of this claim.
OPINION OF BOARD: Claimants seek retroactive pay under the February 10,
1971 National Agreement.
The facts which control this dispute are not controverted. The
February 10, 1971 Agreement provided certain wage increases (effective
January 1, 1970) and Article I(h) "coverage" provides:
"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 persons who prior to the date of
this Agreement 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.
Overtime hours will be computed in accordance with
the individual schedules for all overtime hours paid
for."
Claimants had an employment relationship after December 31, 1969,
but were furloughed on August 3, 1970.
Claimants failed to comply with the notification requirements of
Rule 9(a) of the Agreement which provides:
"Employes laid off by reason of force reduction
desiring to retain their seniority must file with
their superior officer a written statement indicating
I
Award Number 19900 Page 2
Docket Number MW-19817
"their desire, and setting out their address. This
statement must be filed within ten (10) days after
being laid off. They must immediately notify their
superior officer of any change of address. Employes
failing to comply with these provisions or to return
to service within ten (10) days for a regular bulletined
position after having been notified in writing by their
superior officer will forfeit all seniority unless a
leave of absence is obtained under the provisions of
this agreement."
Accordingly, Claimants are entitled to retroactive amounts unless
they voluntarily left the service of the Carrier (other than to retire) or
failed to respond to a call-back to service notice. No question of "return
to service" or "retirement" is presented in this case; only the question of
"voluntary termination."
The actions which removed the employees from active employment in
August, 1970 were clearly not "voluntary." The employees were furloughed.
Thus, the only question which must be resolved is whether an involuntary
action (furlough) can be converted into a voluntary leaving of the "service
of the Carrier" by a failure to comply with a notification rule (9(a)). If
the answer is in the affirmative, the claim must fail.
The precise question presented here has not been previously considered
by this Board. The same basic agreement provision was considered in Award
#19603 (O'Brien), but that dispute was concerned with a factual determination
of whether certain employee action constituted a "retirement" and the resolution there is of little
The Board is aware of prior Awards which have upheld agreement
provisions which forfeit seniority for failure to give required notifications.
Those cases generally dealt with questions of "recall", "displacement" and
interrelationship of employees' seniority rights. While those cases are well
reasoned /Awards #1136 (Sharfman), 3840 (Wenke), 4535 (Carter), 5909 (Douglas),
9457 (Grady), 12858 (without Referee), 15678 (Kenan) and 17596 (Gladden2//, they
do not materially aid this determination. Clearly, a failure to satisfy a
contractual obligation to give certain notifications can, and does, result in
seniority forfeiture (as is the case here). But the cases do not resolve the
difference between these parties as to whether forfeiture of seniority equates
to a voluntary termination of employment. To be sure, Award #9457 referred
to an employee relinquishing her "employe status" and Award #17596 referred
to a Claimant taking herself "out of service." But a full consideration of
those Awards does not suggest that those terms were used in a context consistent
with Carrier's contention herein, as the issues presented in those cases dealt
clearly with a loss of seniority rather than the issues before this Board.
Award Number 19900
Docket Number MW-19817 Page 3
To the contrary, the Board, in Award 4119231 noted that, "..
while the Claimants may not have acquired seniority under Rule
....,
they
were subject to the rules of the Agreement."
On balance, the prior Awards are not of significant assistance
to the Board in this case of first impression. Unquestionably, under Rule
9(a), Claimants forfeited seniority. Unquestionably, the Claimants are not
entitled to retroactive pay (in this dispute) if they voluntarily left the
service of the Carrier. Seniority and service are not synonymous. Surely,
quite frequently, seniority and active employment are considered in the same
context. Yet, there may be instances when the two concepts are not totally
compatible. A probationary employee may not have seniority - yet he is in
an active employment status. There are situations where, by contractually
permissible failure to act, "bump" or "displace", etc., a senior employee may
not be in active service, while a junior employee enjoys such a status.
Employees on leave of absence may have an altered status.
Whatever rights Claimants had to future active employment - after
their forfeiture - may have been minimal, but the Board is of the view that
a literal interpretation of the February 10, 1971 Agreement requires the
conclusion that they are entitled to retroactive pay. They did not voluntarily
leave the service of the Carrier when they were furloughed. Their subsequent
inaction may have affected their future rights with the Carrier, but a forfeiture or loss of seniori
service.
Within the context of the Agreement under scrutiny, the Board is
of the view that the employees are entitled to retroactive pay for the period
of their active employment during 1970.
The Board is compelled to point out that its determination here is
limited to a determination of this Claim arising under the wording of the
February 10, 1971 Agreement and particularly the worling of "(h) Coverage"
of that document. Within the context of that document, and upon consideration of this record, the Cl
the Carrier.
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 Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
Award Number 19900 Page 4
Docket Number MW-19817
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
Claims sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
~_~ ~,A~at-
Dated at Chicago, Illinois, this 8th day of August 1973.
DI357,'T OF CAR2LE1.R i-I,'~;cn3
TO
AWARD
!.Q~Y)o.
Lock:
r-rr-17817
~:~:~ ~; slcw:L.s
Award No.
17900
is in serious error, not supported by
the Agreement or precedent az,-ards of this Hoard interpreting rules
comparable to Rule 9(a) of the involved agreement.
The prior awards of the Division interpreting similar
rules should have been of "significant assistance" had the Referee
not chosen to simply brush them aside even after classif~ring them
as "well reasoned". For example, in Ai-.·ard
4+57
the Hoard held:
The filing requirement is not unduly onerous
or unreasonable and was communicated to the employees
by the Agreement. It was readily within L;ilson's
power to comply. She did not do so. She therefore
relinquished her employe status under the Agreement.
* * * We conclude that it was incumbent upon Wilson
to file. * * * "
In !::.·ard
17596
it ,.a-s held:
"We concur with the Carrier that the Agreement places
the responsibility of protecting seniority rights on
the employe and in this instance, though the record
shows Claimant was ae..rare of this part of the Agreement
and had given notice of prior changes of address she
did not de so after her change of address of November,
1965.
She therefore took herself out of service."
(Emphasis added).
Claimants' actions in failing to file their addresses as
required by Rule 9(a) was voluntary on their part. They thereby terminated their relationship with t
left the service of the Carrier" as provided in Article 1(h) of the
February 10,
1971
Agreement.
Award 19?00 is without basis and we dissent.
~r~
v~
7
L
DISSENT OF CARRIER IMMBERS TO
A14ARD 19900, DOC "~107-19817
... ,I
NATIONAL RAILROAD ADJUSTMENT BOARD
Award Number 19900
THIRD DIVISION Docket Number MW-19817
Joseph A . Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the National Agreement dated February 10,
1971 when it failed and refused to allow Messrs. R. C. Maynard, H. Haney, M. C.
Bowen, C. Maynard and S. Bowen retroactive pay from January 1, 1970 through
August 3, 1970 (System File MW-BRS-71-S).
(2) Messrs. R. C. Maynard, H. Haney, M. C. Bowen, C. Maynard and
S. Bowen now be allowed retroactive pay for the period referred to within
Part (1) of this claim.
OPINION OF BOARD: Claimants seek retroactive pay under the February 10,
1971 National Agreement.
The facts which control this dispute are not controverted. The
February 10, 1971 Agreement provided certain wage increases (effective
January 1, 1970) and Article I(h) "coverage" provides:
"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 persons who prior to the date of
this Agreement 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.
Overtime hours will be computed in accordance with
the individual schedules for all overtime hours paid
for."
Claimants had an employment relationship after December 31, 1969,
but were furloughed on August 3, 1970.
Claimants failed to comply with the notification requirements of
Rule 9(a) of the Agreement which provides:
"Employes laid off by reason of force reduction
desiring to retain their seniority must file with
- their superior officer a written statement indicating
I
Award Number 19900 Page 2
Docket Number MW-19817
"their desire, and setting out their address. This
statement must be filed within ten (10) days after
being laid off. They must immediately notify their
superior officer of any change of address. Employes
failing to comply with these provisions or to return
to service within ten (10) days for a regular bulletined
position after having been notified in writing by their
superior officer will forfeit all seniority unless a
leave of absence is obtained under the provisions of
this agreement."
Accordingly, Claimants are entitled to retroactive amounts unless
they voluntarily left the service of the Carrier (other than to retire) or
failed to respond to a call-back to service notice. No question of "return
to service" or "retirement" is presented in this case; only the question of
"voluntary termination."
The actions which removed the employees from active employment in
August, 1970 were clearly not "voluntary." The employees were furloughed.
Thus, the only question which must be resolved is whether an involuntary
action (furlough) can be converted into a voluntary leaving of the "service
of the Carrier" by a failure to comply with a notification rule (9(a)). If
the answer is in the affirmative, the claim must fail.
The precise question presented here has not been previously considered
by this Board. The same basic agreement provision was considered in Award
#19603 (O'Brien), but that dispute was concerned with a factual determination
of whether certain employee action constituted a "retirement" and the resolution there is of little
The Board is aware of prior Awards which have upheld agreement
provisions which forfeit seniority for failure to give required notifications.
Those cases generally dealt with questions of "recall", "displacement" and
interrelationship of employees' seniority rights. While those cases are well
reasoned /Awards #1136 (Sharfman), 3840 (Wenke), 4535 (Carter), 5909 (DoRglas),
9457 (Grady), 12858 (without Referee), 15678 (Kenan) and 17596 (Gladden]/, they
do not materially aid this determination. Clearly, a failure to satisfy a
contractual obligation to give certain notifications can, and does, result in
seniority forfeiture (as is the case here). But the cases do not resolve the
difference between these parties as to whether forfeiture of seniority equates
to a voluntary termination of employment. To be sure, Award #9457 referred
to an employee relinquishing her "employe status" and Award #17596 referred
to a Claimant taking herself "out of service." But a full consideration of
those Awards does not suggest that those terms were used in a context consistent
with Carrier's contention herein, as the issues presented in those cases dealt
clearly with a loss of seniority rather than the issues before this Board.
Award Number 19900
Docket Number MW-19817 Page 3
To the contrary, the Board, in Award 1)19231 noted that, ". ,
while the Claimants may not have acquired seniority under Rule
....,
they
were subject to the rules of the Agreement."
On balance, the prior Awards are not of significant assistance
to the Board in this case of first impression. Unquestionably, under Rule
9(a), Claimants forfeited seniority. Unquestionably, the Claimants are not
entitled to retroactive pay (in this dispute) if they voluntarily left the
service of the Carrier. Seniority and service are not synonymous. Surely,
quite frequently, seniority and active employment are considered in the same
context. Yet, there may be instances when the two concepts are not totally
compatible. A probationary employee may not have seniority - yet he is in
an active employment status. There are situations where, by contractually
permissible failure to act, "bump" or "displace", etc., a senior employee may
not be in active service, while a junior employee enjoys such a status.
Employees on leave of absence may have an altered status.
Whatever rights Claimants had to future active employment - after
their forfeiture - may have been minimal, but the Board is of the view that
a literal interpretation of the February 10, 1971 Agreement requires the
conclusion that they are entitled to retroactive pay. They did not voluntarily
leave the service of the Carrier when they were furloughed. Their subsequent
inaction may have affected their future rights with the Carrier, but a forfeiture or loss of seniori
service.
Within the context of the Agreement under scrutiny, the Board is
of the view that the employees are entitled to retroactive pay for the period
of their active employment during 1970.
The Board is compelled to point out that its determination here is
limited to a determination of this Claim arising under the wording of the
February 10, 1971 Agreement and particularly the wording of "(h) Coverage"
of that document. Within the context of that document, and upon consideration of this record, the Cl
the Carrier.
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 Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
Award Number 19900 Page 4
Docket Number MW-19817
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
Claims sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: /L
IV~A11dtic
Dated at Chicago, Illinois, this 8th day of August 1973.
DISSENT CF
CARRIER MENSERS
' m0
AWARD -1~9 00, DOCK
Mw-19817
(nEFE&EE SICKLES)
Award No. 19900 is in serious error, nct supported by
the Agreement or precedent awards of this Hoard interpreting rules
comparable to Rule 9(a) of the involved agreement.
The prior awards of the Division interpreting similar
rules should have been of "significant assistance" had the Referee
not chosen to simply brush them aside even after classifying them
as "well reasoned". For example, in Award 9457 the Hoard held:
"The filing requirement is not unduly onerous
or unreasonable and has communicated to the employees
by the Agreement. It ores readily within ::'ikon's
power to comply. She did not do so. She therefore
relinquished her employe status under the Agreement.
* * * We conclude that it was incumbent upon Wilson
to file. * * * "
In Award 175:6 it mas held:
"'We concur with the Carrier that the Agreement places
the responsibility of protecting seniority rights on
the employe and in this instance, though the record
shows Claimant was aware of this part of the Agreement
and had given notice of prior changes of address she
did rot do so after her change of address of November,
1965. She therefore took herself out of service."
' (Emphasis added).
Claimants' actions in failing to file their addresses as
required by Rule 9(a) was voluntary on their part. They thereby terminated their relationship with t
left the service of the Carrier" as provided in Article 1(h) of the
February 10,
1971
Agreement.
Award 19900 is without basis and we dissent.
~_t ,.~_ IV,., . .\
v~
~~
L
DISSENT OF
CARRIER IMMBERS TO
A14ARD 19900DOC?= (·6'-19817