Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27103
THIRD DIVISION Docket No. MW-26627
88-3-85-3-372
The Third Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood if Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the February 7, 1965 Agreement when it
removed the protected status from Mr. R. D. Ojala, a machine operator and
trackman (System File NMA 020765/800-22-64).
(2) Claimant R. D. Ojala's protected status shall be reinstated and
he shall be paid all compensation due him beginning January 12, 1984 and
continuing until the Carrier complies with the provisions of the February 7,
1965 Agreement."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
In this dispute, Claimant has asserted protective rights under the
Job Stabilization Agreement of February 7, 1965. He had performed compensated
service for Carrier in 1962, 1963 and 1964 and fulfilled the basic requirements for coverage under t
Claimant began working as a Section Foreman and continued in this position
until he left it on October 1, 1981. He then obtained a position as a Group
III Machine Operator which, in effect, was a seasonal position, and remained
until the early part of 1984. According to the Organization, Claimant was
unable to hold his position, and in accordance with his status as a covered
employee, the General Chairman applied for protective benefits on his behalf
on March 9, 1984. This request was denied by Carrier on the grounds that his
resignation from the Section Foreman's position on October 1, 1984, removed
him from the protective coverage of the February 7, 1965 Agreement.
Form 1 Award No. 27103
Page 2 Docket No. MW-26627
88-3-85-3-372
In defense of the Claim, the Organization argued that Claimant had
not forfeited his protective status, since he obtained a position as a Group
III Machine Operator and thus continuity was maintained under the protective
Agreemeat. In essence, his resignation did not by extension invalidate his
protective status.
Carrier contended that when Claimant left a permanent position to
accept a seasonal (intermittent work) position, he forfeited his rights under
Section 1 of Article II of the February 7, 1965 Agreement. It noted that he
could have obtained anther Foreman's position in October, 1981, and consequently, any subsequent dep
solely from his voluntary actions. In considering this case, the Board takes
judicial notice of Article VII of the February 7, 1965 Agreement. This
portion of the protective Agreement provides a well defined dispute settlement
mechanism, which was specifically designed by the contracting parties to
handle questions of interpretation or application arising under the Agreement.
As such, and consistent with our past decisional holdings, we must disclaim
jurisdictional authority to adjudicate this dispute, since the parties purposely and explicitly prov
resolve disputed positions. (See Third Division Awards 18925, 17988, 19829,
19372, 26006, et al). It would ill-behoove the Board to usurp this authority
when the parties provided their specialized tribunal to hear and decide
disputed interpretative questions. For these reasons, we will dismiss the
claim without prejudice.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. SVer - Executive Secretary
Dated at Chicago, Illinois, this 17th day of May 1988.