NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22481
(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
(GIt8535) that:
1) Carrier violated the Clerks' Rules Agreement at Chicago,
Illinois when it unjustly treated employe T. W. Ortman by arbitrarily
and unilaterally dismissing him prior to preferring charges and holding
an investigation.
2) Carrier shall now be required to reinstate T. W. Ortman
to its service with seniority and all other rights unimpaired, clear
his record, and compensate him at the established rate of pay of.
Second A.C.O. Position No. 73020, plus all overtime accruing to that
position beginning on
September 2,
1976 and continuing until he is
restored to
service.
OPINION OF BOARD: Prior to September 2, 1976, claimant was the
regularly assigned occupant of Position No. 73020,
Assistant Chief Operator-Communications, with assigned hours 12:00
midnight to 8:00 A.M., Sunday through Thursday.
At about 10:30 P.M., September 2, 1976, the claimant
notified the Wire Chief on duty that due to breakdown of his car,
he would not be able to work that night. When the Relay Office
Manager, claimant's superior, was informed of the situation, he
called the claimant, asking about other means that may be available
for claimant to get to work. The claimant told the Relay Office
Manager that other means of transportation were not available. Some
rather heated discussion ensued, with the Relay Office Manager telling
claimant that he expected him to protect his assignment, and claimant
replying that he would not be able to be at work.
Award Plumber 2247a Page 2
Docket Number CL-22481
On September 2, 1976, claimant was advised:
"Please be advised that as a result of accepting
leave of absence on September 2, 1976, other than as
defined in the Clerks Rules Agreement, you have forfeited all seniority under Rule 23(g) of said Agr
Rule 23 (g) of the applicable Agreement reads:
"(g) Employes accepting leave of absence
other than as defined in these rules shall
forfeit all seniority."
The Petitioner contends that the Carrier's action was in
violation of Rule 22 (a) of the Agreement, in that claimant was removed
from the service without the benefits of an investigation under that
rule.
It is the Carrier's position that the language of Rule 23(g)
is unambiguous, the rule is self-executing, and is the controlling
rule,
The question to be resolved is whether, under the circumstances that existed, Rule 23(g) was app
The Carrier cites Award 21463, involving a somewhat similar
situation, which dispute was progressed to the Board by an individual,
and which Award held that Rule 23 (g) was applicable. This Referee has
carefully reviewed Award 21463, but, with due regard to the ability
o= the Referee who authored that award, we cannot agree that it
represents a proper interpretation or application of the Agreement.
It is well settled that language used in an agreement must
be given its ordinary and customary meaning, unless some other intent
is clearly indicated. The commonly accepted meaning of the term
"leave of absence" is absence with permission. The word "accepting"
ordinarily and customarily means taking or receiving something that
is offered. The failure of claimant to protect his assignment on
September 2, 1976, especially after being instructed to do so by his
superior officer, cannot properly be construed as "accepting leave of
absence other than as defined in these niles," as referred to in
Award Number 22479 Page 3
Docket Number CL-22481
Rule 23(g). It follows, therefore, that it is our considered opinion
that Rule 23 (g) was not applicable. We would agree with the contention
that the provisions of rule 23 (g) would be self-executing if the rule
were applicable.
Numerous awards have been issued by this Board treating
cases of unauthorized absences, or failure to comply with instructions,
as disciplinary matters, subject to handling under the applicable
disciplinary rules. We have been referred to several awards involving
disputes between the same parties as involved herein, where failures
to protect assignments, or unauthorized absences, have been considered
as disciplinary matters, and handled under the discipline procedure
provided for in the Agreement. See Awards 22265, 21591, 20227, 21335,
19843, and 9677. The cited awards are evidence that it was the intent
of the parties to treat offenses such as the one involved in our present
dispute, as disciplinary matters to be handled under the discipline rule.
It is the conclusion of the Board that Carrier violated
Rule 22 (a) of the Agreement in not preferring charges against claimant
and conducting investigation as provided therein.
The claim will be sustained.
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;
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was violated.
Award Number 22479 Page 4
Docket Number CL-224$7:
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
'a'W. 6A,
Dated at Chicago, Illinois, this 24th day of August
1979.
Serial No. 302
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION N0. 1 TO AWARD N0. 22479
DOCKET N0. CL-22481
NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employes
NAME OF CARRIER: Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Upon application of the representatives of the Employes involved
in the above Award, that this Division interpret the same in light of the
dispute between the parties as to the meaning and application, as provided
for in Section 3, First (m) of the Railway Labor Act, as approved June 21,
1934, the following interpretation is made:
On August 24, 1979, this Board issued Award No. 22479 in dispute
between the parties in which the Employes' Statement of Claim read:
"Claim of the System Committee of the Brotherhood (GL.-8535)
that:
1) Carrier violated the Clerks' Rules Agreement at Chicago,
Illinois when it unjustly treated employe T. W. Ortman by
arbitrarily and unilaterally dismissing him prior to preferring charges and holding an investigation
2) Carrier shall now be required to reinstate T. W. Ortman to
its service with seniority and all other rights unimpaired,
clear his record, and compensate him at the established rate
of pay of Second A.C.O. Position No. 73020, plus all overtime
accruing to that position beginning on September 2, 1976 and
continuing until he is restored to service."
The issue involved in Award No. 22479 was whether Rule 23 (g) of the
Agreement was applicable, as contended by the Carrier, or whether Rule 22 -
Discipline and Grievances, especially Section (a) thereof, was applicable,
as contended by the Organization. This was the primary issue in the dispute
in the handling on the property and in the submission of the parties to the
Board. The Board found:
"It is the conclusion of the Board that Carrier violated Rule 22 (a)
of the Agreement in not preferring charges against claimant and
conducting investigation as provided therein."
and issued Award - "Claim sustained."
_ 2 _
Following the issuance of Award No. 22479, the parties disagreed
over the Carrier's asserted right to deduct Claimant's outside earnings
from the compensation due him under the Award.
The Carrier asserts its right to deduct Claimant's outside earnings
under the provisions of Rile 22 (e) of the Agreement, which provides:
"(e) If the final decision decrees that charges against the
employe were not sustained the record shall be cleared of the
charge; if suspended or dismissed, the employe shall be
reinstated and paid for all time lost less any amount earned
in other employment."
In progressing the claim to this Board the Petitioner cited Rule 22,
especially Section (a) thereof, which rule is entitled "Discipline and
Grievances."
We agree with and adopt the reasoning set forth in Interpretation
No. 1 to Award 19804, Serial No. 269, issued on August 23, 1974, involving
the same Carrier and another craft wherein the Board held;
"After the Award was transmitted to the property for implementation,
the parties disagreed over the Carrier's. asserted right to deduct
Claimant's outside earnings from the compensation directed to be
paid to Claimant by the Award. The basis for such asserted right,
as stated in Carrier's Reply to the Employes' Request for Interpretation, is (1) that Rule 8(f) of t
authorizes the deduction of outside earnings in the instant case,
and (2) that court decisions (federal and state) and Board Awards,
as well as practice on this property, supports the Carrier's
right to deduct outside earnings in appropriate cases. For its
part, the Petitoner says that the Carrier's point (1) above is
not sound because Rule 8, being a discipline rule, cannot apply
here since Award 19804 noted that Carrier's action did not amount
to discipline. The Petitioner also makes objection to the
Carrier's entire Argument on the deduction of outside earnings
(both points (1) and (2)) as being a new issue which is not
properly before the Board. We believe the Petitioner is correct
in labeling Carrier's point (2) a new issue, and, accordingly,
we shall not consider this facet of Carrier's position. However,
we do not agree that Carrier's point (1) involves a new issue
and we shall therefore consider the text of Rule 8(f) which
reads as follows:
l
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'RULE 8. DISCIPLINE AND GRIEVANCES
(f) If the final decision decrees the charges against the
employee are not sustained, the record shall be cleared
of the charge; if suspended or dismissed, the employee
shall be returned to the service and paid for all wages
lost, less amount earned in any other service.'
(Underlining added)
"The Carrier is entitled to make deductions from the compensation
allowed in Award 19804 in accordance with the underlined portion
of Rule 8(f). In processing the claim to this Board the Petitioner
cited paragraph (a) of Rule 8, entitled 'Discipline and Grievances'.
This rule, paragraph (a) through (g), sets out a body of procedures
which
become applicable
when an employee is alleged to have been
wrongfully disciplined or dismissed. Once the Petitioner took
the position that the Claimant was wrongfully dismissed under
paragraph (a) of Rule 8, the
relief being
sought automatically
became subject
to paragraph (f) of the same rule. And since the
effect of Award 19804 was that the Carrier's action became a
wrongful dismissal of Claimant on September 28, 1971, the Award
is subject to paragraph (f) of Rule 8."
Rule 22 (e) in the present case is comparable to Rule 8(f) referred
to in Interpretation No. 1 to Award 19804, Serial No. 269, and we agree that
the Carrier's contention concerning its application does not constitute a
new issue. See also Interpretation No. 1 to Award 12242, Serial No. 210,
issued October 9, 1970; Interpretation No. 1 to Award No. 20033, Serial
No. 283, issued on February 13, 1976; Interpretation No. 1 to Award No. 8
of Public Law Board No. 1844, and
Second Division
Award No. 1638.
The rules and circumstances involved in Award No. 14162 were not
comparable to the rules and circumstances involved in Award No. 22479.
We hold that Award No. 22479 is subject to Section (a) of Rule 22.
1
- 4 -
Referee Paul C. Carter, who sat with the Division as a neutral
member when Award No. 22479 was adopted, also participated with the Division
in making this interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST;
&44095-?~
Dated at Chicago, Illinois, this 18th day of April 1980.