(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Union Pacific Railroad Company ( (South-Central District)

1. The Carrier violated the current controlling Agreements between the Brotherhood of Railway, A Union Pacific Railroad Company when, on August 2, 1971, the strike of the United Transportation Union was settled and Carrier thereafter failed to return clerical forces at Salt Lake City, Utah to the service of the Carrier on the first full shift
2. Carrier shall now be required to compensate the following Claimants for wage loss suffered by them amounting to eight (8) hours' pay daily at the rate of the position held on July 15, 1971 commencing with the first full tour of duty following termination of the strike on August 2, 1971 and continuing until each of the Claimants were actually returned to service.







































OPINION OF BOARD: First we must deal with the procedural issue raised
 by the Carrier. The Carrier contends that this Board
 has no jurisdiction to consider the merits of these claims because of the
 alleged failure of the Organization to discuss the claims in conference
 prior to instituting action before this Board. This Board finds from an
 examination of the entire record established on the property, that the
 conference requirement was sufficiently satisfied to allow the Board to
 consider the merits of this case.

 A strike against the Carrier by the UTU extended from July 16, 1971 to 12:01 P.M. August 2, 1971, a period of seventeen days. The Carrier, in accordance with the p notified all employes that their positions were abolished because of the UTU strike. When the strike ended on August 2, 1971, the Carrier returned employes to service as the Carrier's needs required.

 The Organization contends that the Carrier either violated the letter agreement of April 9, 1964 (sometimes referred to in the record by the Organization as the "Strike Standby Agreement"), which requires that when the Carrier reduces forces because of a strike, all employees whose positions are temporarily suspended will return to their regular positions at the start of the first full tour of duty following termination of the strike; or, the Organization contends, if the April 9, 1964 Agreement is not now in effect, then no agreement existed permitting the Carrier to return employes to their former positions, and therefor the Carrier violated the provisions of the Schedule Agreement, specifically Rules 17 and 18.


The Carrier contends that as a result of the UTU strike, the Carrier's operations were brought to a complete standstill and forces were properly reduced under provisions of Article VII of the National Agreement of February 25, 1971; and that the Carrier returned forces to work in a proper manner.

 First let us consider the Organization's contention that the letter agreement of April 9, 1964 was properly applicable to the instant case. The subject matter of the Agreement of April 9, 1964 deals with procedures for "the temporary ...." Article VII of the National Agreement of February 25, 1971, entitled "Force Reduction Rule", deals with procedures for the reduction of forces in emergency conditions, such as labor disputes causing suspension of carrier's operations. We therefore find that the ApriL 9, 1964 agreement was superseded by Article VII of the February 25, 1971 Nation Agreement. (We do not decide the contentions made by the Carrier that the letter agreement of April 9, 1964 was a mere ad hoc understanding applicable only to an imminent strike, and not intended to have general and future application to other strike
We find that the claimants`positions were properly and legally abolished under the provisions of Article VII of the National Agreement of February 25, 1971. The Organization clearly does not dispute the propriety of the abolishment of the claimants'positions. There is no provision in the National Agreement of February 25, 1971 which would require that the claimants should have been returned to service immediately following the strike. The parties to the February 25, 1971 Agreement have put no limitations upon the duration of a temporary force reduction due to a strike and this Board is not empowered to rewrite the agreement of the parties. However, implicit in Article VII of the Agreement of February 25, 1971 is the requirement of good faith on the part of the Carrier. There is no evidence of vindictiveness on the part of the Carrier; nor do we believe the manner in which the employes were returned to service was unreasonable or contrary to the Agreement. See Second Division Awards 6411 (Lieberman), 6513 (Franden) and 6560 C3chedlez)w'for persuasive discussion relating in a the claims.



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






                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 21st day of February 1975.
              LABOR aM_PER'S DI°SF~VT TO

              AWARD 2067.4 (Docket CL-20529)


Award 2C614 (Referee 7,ierrny) is in palpable error. The third paragraph of the Opinion of Board correctly sets forth the issue:

    "The Organization contends that the Carrier either violated the letter a,; eement of April 9, 1964 (sometir^.es referred to in the record by the Organi the 'Stri':~ Stari'oy A,-reerrent'), vrhich requires that when the C -=ier reduces forces because of a strike, all employees r::cse positions are terrporarily suspended will return to ~ei_r re ular positions at the start of the first full tour of duty following termination of the strike; or, the Or7anization contends, if the Aoril 9, 1964 Agree-,Mr is not now in effect, then no as7eement existed per.:ittingg the Carrier to return errrployes to their for.^er positions, and therefor the Carrier violated the provisions of the Schedule Agreement, specifically Rules 17 and 1p."


After correctly and precisely setting out the issue, one would think that the issue r.rculd :hen be decided. Instead, however, the Award avoids the issue and sets cut a litany of gratuitous statements of such profound findinr-.s as: "-.:e find that the claimants' positions were properly and legally abolished under the provisions of Article VII of the National Agrce^ent of F:::,=nary 25, 1971' and "'There is no evidence of vindictiveness on the part of the Ca
Never was it argued that the abolishment of Clai-ants' positions was improper or illegal. Nor eras a contention made that vindictiveness occurred on the part of the Carrier. The Organization recognized that Claimants' jobs ':;ere properly abolished and never claimed that the abolishments vrere not legal. The Referee recognized this, because immediately following his "profound" conclusion that the positions "were properly and le-gaily aoolished," he writes: "The Organization clearly does not dispute the propriety of the abolishment of the claimants' positions."

 Perhaps the majority intentionally dwelt on issues that were not in dispute to avoid correct consideration of the real dispute, which was the method of recall of employes following the term=.nation of the strike. It is universally reco~zized that an employe affected by force reduction and unable to disnlace a junior employe reverts to the furlough list from ..,hich recall in seniority order occurs when work next becomes available. Absent a special agreement or understanding, the senior

 i
 employe of the furlough list is called first. In the instant case, Rule 18 of the parties' Agreement is the controllirZ rule. Paragraph (c) provides:

    "When a bulletined new position or vacancy is not filled by an employe in service senior to a qualified furloug_heri employe who has protected his seniority, as provided in that rule, the senior qualified furloughed employe will be called to fill the position.


    "Furloughed employes failing to return to service within seven (;) days after 'oein_; notified (by registered or certified U. S. Mail or telegram sent to last address on file), er E;ive satisfactory reason for not doing so, will forfeit all service and seniority rights."


It is obvious that the Carrier did not follow the recall provisions of the Agreermnz :when forces :were increased fcllov-!i!g the strike. Instead, Carrier called employ positions, even thouzh such positicns had been abolished and had not been bulletined. It is clear that Rule 18 was not followed, an obvious violation that the -ajority should have recognized.

 In-toad of following Fule 18, the Carrier returned employes to ser- icy on their fo=.e-= ,;cbs without rejard to seniority. In doing this, Car:_°_^ either had to suffer the consequences of arty seniority violations that occurred, e.g., pay the claims, or have a special agreement permitting variation from the rule. One such special agreement was the Strike Standby Agreetent of April 9, 1964. 7his Carrier failed to follow, ari now the majority have held that the Agreement was superseded, even thc. there is not one item of evidence to this point subrdtted in the record.

    The purpose of entering into a strike standby agreement is to

eliminate the tedious issuing of bulletins, often in serial order, and
 to achieve the resulting reduction in the movement of employes from
 position to position while the bulletining process is running its course.
 The quid pro coo is usually that all employes will be returned s'urultar_e
 ously to their fcrmzr positions when the emergency is terminated. At t: __
 comrtencement of the UTU strike on July 15, 1971, the employes believed
 that the 1964 Strike Standby Agreement was in full force and effect; t:: ;s,
 Carrier breached that Agreement at the termination of the strike. Ass,w ir.
 arFuendo that the Agreement was not in effect, then Carrier breached th°
 basic rules agreement when employes were recalled to work outside of sen
 iority date. -cth breaches were fully and completely discussed and we-e
 fully 2nd comletely laid out before Referee TWomey. And yet, rather
 than dealing with the breaches, he instead choose to avoid his obligat_cn
 and deal with the abolishnents, en item never disputed.

                      - 2 - (Dissent to 2061-)

Award 20614 is in palpable error and requires dissent.

 March 7, 1975

i L


J . FLEi^ChMER Lab r I,:e-ber

 (Dissent to 20614)