Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27319
THIRD DIVISION Docket No. MS-27312
88-3-86-3-726
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(R. Mark Southard
PARTIES TO DISPUTE:
(Chicago 6 Western Indiana Railroad Company
STATEMENT OF CLAIM:
"Claim for compensation due R. Mark Southard as a protected employe
placed in a worse position with respect to compensation in violation of
Article I, Section 1 and Article IV, Sections 1 and 2, of the Mediation
Agreement of February 7, 1965 between the Chicago 6 Western Indiana Railroad
Company and the Brotherhood of Railway, Airline and Steamship Clerks, as
amended by Memorandum of Agreement dated July 2, 1979."
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 were given due notice of hearing thereon.
Claimant was employed by the Carrier on August 16, 1978. On June 30,
1983, he went on the Extra Board and on June 5, 1984, he was furloughed and
waived his right to return to service for positions of less than 30 days. He
cancelled this waiver on November 5, 1985. On May 9, 1986, the General
Chairman filed Claim on behalf of Claimant. On May 20, 1986, the General
Chairman wrote Claimant as follows:
"This will confirm our recent telephone conversation
at which time I advised that discussions were being
held with the Chicago and Western Indiana Railroad
Company which, if successful would lead to the recall,
at least to an extra position, of all operators currently holding seniority. I also advised that one
of the conditions set by Carrier would be the withdrawal of your claim in Case W-4605-T.
Form 1 Award No. 27319
Page 2 Docket No. MS-27312
88-3-86-3-726
You indicated your concurrence in this arrangement.
If this is still your desire, please so indicate by
signing the enclosed copy of this letter in the space
provided below and returning it to my office.
Because of certain aspects of these discussions, it
is necessary that I act promptly; therefore, your
immediate response is required."
On May 21, 1986, Claimant signed the letter under the portion of it
which read:
"I agreed to the conditions set forth above: and in
the event I am recalled I will withdraw my claim."
Claimant now contends he agreed "...that if he would be recalled to a
regularly assigned position, he would release his Claim for compensation."
On July 7, 1986, the Organization and Carrier agreed to settle all
outstanding Claims, including Claimant's.
On July 18, 1986, Claimant was sent notice to return to service for
extra work. On July 23, 1986, he submitted a waiver of his right to return
for less than 30 days, whereupon Carrier removed him from the seniority list
and placed him out of service.
Thereafter, Claimant retained counsel who on September 18, 1986,
wrote Carrier asserting that Claimant, as a protected employee under the 1965
National Agreement, was entitled to be retained in service. Counsel also contended Claimant had sign
that:
...if he would be recalled, not for a position on the
extra board, but for a regularly assigned position
he would release his claim for compensation. Insofar as Mark has never been recalled for a regularly
assigned position, his claim known as Case Q-4605-T
is still pending and awaiting decision."
Carrier responded the Claim had been withdrawn and the file closed.
Claimant alleges that as a protected employee he is entitled to preservation of employment and o
Carrier argues that proper procedures for processing disputes under
the 1965 National Agreement were not followed. It further contends the Claim
was not progressed in accordance with the Railway Labor Act and is not properly before the Division.
Claim properly brought by, and settled with, the Organization.
Form 1 Award No. 27319
Page 3 Docket No. MS-27312
88-3-86-3-726
We cannot accept Claimant's self-serving statement regarding his
understanding of the May 20, 1986 letter which we find clear and unambiguous.
We consider the matter settled and all other considerations aside, will deny
the present Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attes~ Qi~
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 30th day of August 1988.