NATIONAL RAILROAD
ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-19944
Frederick R. Blackwell, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Detroit, Toledo and Ironton Railroad Company
STATEMENT OF CLAIM: Claim of the General Committee of the Brother-
hood of Railroad Signalmen on the Detroit, Toledo and Ironton Railroad Company that:
Leading Signal Maintainer C. A. Schmenk retain the status of a
furloughed employe and be furnished copies of all bulletined vacancies
while on furlough.
OPINION OF BOARD: Prior to this dispute the Claimant was the incumbent
of a Lead Signal Maintainer position at Leipsic, Ohio.
When his position was abolished effective March 15, 1971, he notified
Carrier in a March 17, 1971 letter that he was assuming furlough status
under Rule 35 of the Agreement. Carrier's Superintendent of Signals &
Communications, Mr. A. B. Swartrwelder, acknowledged receipt of Claim
ant's letter electing furlough status under Rule 35 in a letter dated
March 17, 1971. Subsequently, however, in a March 22, 1971 letter,
Mr. Swartzwelder recalled Claimant from furlough to fill a Signal Main
tainer vacancy at Flat Rock (88 miles from Leipsic); this letter stated
that the recall was in accordance with Rule 43 of the Agreement and
that Claimant must return to work within ten (10) days or forefeiture
of seniority would result. The General Chairman protested the recall
action to Mr. Swartzwelder in a March 24, 1971 letter which stated
that Rule 43 did not apply to Claimant's situation and that Rule 35
was still in effect. Notwithstanding this protest Mr. Swartzwelder
wrote to Claimant under date of April 21, 1971, advising that, since
Claimant had not reported for duty on the position at Flat Rock, he
had voluntarily forfeited his seniority under Rule 43. The General
Chairman appealed to have Claimant restored to furlough status, on the
ground that Rule 35 governed the situation, but Carrier declined to
do so, stating that Rule 43 controlled and that Claimant had volun
tarily forfeited seniority thereunder.
Rules 35 and 43 read as follows:
"Rule 35. (a) When force is reduced or positions abolished, an
employe affected will have the right to displace any employe
with less seniority rights, except as provided in Rule 37. How-
ever, he need not exercise such displacement rights unless he so
desires and when displacement rights are not exercised he will
assume the status of a furloughed employe.
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Docket Number SG-19944
"(b) The junior employe of a seniority class who does not desire
to displace in a lower seniority class will retain and accumulate
all seniority rights. However, he must return to service in the
class and at the point from which he assumed the status of a
furloughed employe or in any higher class at such point in which
he holds unrestricted rights when advised by the Management of
reasonably continuous employment being made available or forfeit
all such rights. For the purpose of this provision, Flat Rock
and north will be considered onepoint. (Underlines added)
(c) "Reasonably continuous employment" as used in this Agreement shall be understood to mean tha
afforded the regular assigned forces, may be expected for a
period of not less than 90 days."
Rule 43. (a) Furloughed employes desiring to retain their
seniority rights must file their addresses in writing with
the Supervisor of Signals and Communications and with the General Chairman within ten days from date
must immediately notify in writing both the Supervisor of Signals and Communications and General Cha
address. Failure to comply with these provisions or to return
to the service within ten days after being notified by the
Management of 'Reasonably continuous employment' being available, will cause forfeiture of all s
leave of absence has been obtained under the provisions of
Rule 39. (Underlines added)
(b) Furloughed employes or employes reduced to a lower seniority
class in reduction of force will be recalled to service or to
fill positions in the higher seniority class in the order of
their seniority. When filling temporary positions, if the senior
furloughed employe fails to respond or in the case of an emergency, the senior available furloughed
These rules produce two diametrically opposed results when
applied to the instant facts, so, as the parties concede, one rule
must give way to the other. The Employes assert that the underlined
text of Rule 35 has specific application to the Claimant's situation
and that where two rules conflict, the one having specific application is controlling. The Carrier's
only to recall to service at the point of furlough, in this instance,
Leipsic, but that Rule 43 has systemwide application and therefore the
underlined text of the latter rule applies to points other than where
furloughed. The Carrier says further that the flaw in the Employes'
position is that it would permit employes to remain away from Carrier's
employ for indefinite periods of time, retain their seniority, and
still not be required to return to service when recalled from furlough.
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Docket Number SG-19944
In appraising the foregoing, and the whole record, it becomes
apparent that Rule 35 specifically vested rights in the Claimant
which Rule 43, under Carrier's view, would divest and take away.
It is also apparent that Rule 35 is a specific rule while Rule 43 is
a general one. When two such rules conflict, the specific controls
over the general and, thus, we conclude that the Employes' position
is well taken. Award No. 8275. In substantive effect Rule 35 is
an exception to Rule 43 and it seems clear that acceptance of Carrier's position would have the prac
the parties' agreement which this Board has no power to do. Also
we note that the flaw cited by Carrier, of an employee accruing
seniority for an indefinite period while on furlough status, has
already been expressly provided by the agreed text of Rule 35 for
the situation presented by this dispute; consequently, whatever
problem arises here is the sole concern of the parties. This Board's
only function is to apply the text of the rule as written to the
facts of this particular dispute.
In view of the foregoing we shall sustain the claim.
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 wit
the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
The Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
_secutive Secretary
Dated at Chicago, Illinois, this 29th day of March 1974.