NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25072
John E. Cloney, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(Z) The Carrier violated the Agreement when it failed and refused to
compensate Trackman V. L. Drew at 100% of the trackman's rate during the period
December 8, 1980 to February 15, 1981 (System File 100-400.A16-811/11-1780-200-3).
(2) Because of the aforesaid violation, the claimant shall be allowed
the difference between what he was paid at 90% of the trackman's rate and what
he should have been paid at 100% of the trackman's rate during the period December 8,
1980 to February 15, 1981.
OPINION OF BOARD: Claimant V. L. Drew entered service as a Trackman on November
13, 1979. His compensation was controlled by Article VIII,
Section 1 of the October 30, 1978 Mediation Agreement which states in pertinent
part:
"ARTICLE VIII - Entry Rates
Section 1 - Service First 12 - Months
Except as otherwise provided in this Article VIII, employees entering
service on and after the effective date of this Article shall be paid
as follows for all service performed within the first twelve (12)
calendar months of service:
(a) For the first twelve (12) calendar months of employment,
new employees shall be paid 90%-of the applicable rates
of pay (including COLA) for the class and craft in which
service is rendered. However, an employee promoted to a
higher class shall not be paid at a rate of pay lower than
the rate he would have been paid had he remained in the'
lower class.
(b) When an employee has completed a total of twelve (12)
calendar months of employment in any maintenance of way
position (or combination thereof) the provisions of
subparagraph (a) above will no longer 1e applicable.
Employees who have had a maintenance of way employment
relationship with the carrier and are rehired in a
maintenance of way position will be paid at the full
applicable rate after completion of a total of twelve
(12) calendar months combined emalovment.
(c) Any calendar month in which an employee does not render
compensated service due to voluntary absence, sus_aension,
or dismissal shall not count toward completion of the
twelve month period."
Award Number 24857
Docket Number MP7-25072 Page 2
Claimant suffered a personal injury on June 17, 1980 which was not
work related. As a result he was on medical leave for the following periods in
1980:
June 18 through September 23
September 30 through October 10
October 31 through November 28
Upon his return to work in December the Carrier continued to compensate Claimant
at 90% of the applicable rate, and did so until February 15, 1981.
Organization contends the only calendar months which do not count
toward the completion of the twelve month period are those specifically noted
in Section 1(c). He futher contends he did not fail to render compensated
service in any calendar month due to voluntary absence, suspension or dismissal
and accordingly was entitled to be compensated at the 100% level after November
13, 1980.
The Carrier agrees it did not compensate Claimant at the 100% rate
upon his return, pointing out he did not render any compensated services for
the months of July, August and November. The Carrier argues Claimant's absence
from work during those months was not "Carrier imposed" and therefore must be
considered voluntary. This is the ordinarily accepted meaning of the term
"voluntary absence" in the railroad industry according to the Carrier. In
support Carrier cites tcu
1
awards which involved absences caused by observance
of picket lines.
Organization contends the language of the 1978 Agreement is clear and
directs the Board's attention to numerous Awards holding an Agreement must be
applied and interpreted as written.
This Board cannot agree with the Carrier that any absence which it
does not impose is necessarily a "voluntary absence" within the meaning of
Article VIII, Section 1(c), nor does it believe the precedent cited supports
such a proposition. Giving words their ordinary and accepted meaning this
Board is unable to conclude absence due to legitimate injury or illness is a
voluntary absence for purposes of the cited section. Accordingly, Claimant had
completed the twelve month period when he returned to work in December and
should have been paid at the 100% rate thereafter. The Carrier shall make
Claimant whole for losses he suffered by its failure to compensate him at the
proper rate.
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;
1. Third Division Award 19869 and Third Division Award 16746
Award Number 24857
Docket Number MW-25072 Page 3
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.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: . _ _
Nancy J D i - Executive Secretary
Dated at Chicago, Illinois, this 28th day of June, 1984
