Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27675
THIRD DIVISION Docket No. SG-26877
89-3-85-3-652
The Third Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Oklahoma, Kansas and Texas Railroad Company
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the Brother
hood of Railroad Signalmen on the Oklahoma, Kansas and
Texas Railroad Co.:
Claim on behalf of Brother J. C. Gatz for 120 hours pay at his
straight time rate of pay account of the Carrier's violation of the Signalmen's Agreement, particula
(dated 11-16-71) when it did not grant him a five week vacation for the year
1985. Carrier file: 2619-OKT."
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.
This is a dispute over vacation entitlements. The Claimant had been
employed by the former Rock Island Railroad as a Diesel Electrician from
February, 1952 until March 31, 1980. On June 4, 1980, the Oklahoma, Kansas
and Texas Railroad Company (OKT) began interim operations over the St. Joseph,
Missouri-Dallas, Texas track of the former Rock Island Railroad. On January
31, 1981, he was hired by the OKT in the position of Assistant Signalman.
When the OKT ceased operations on this line, the Claimant was terminated,
effective December 31, 1981. He was again employed by the OKT on November 1,
1982, at the time that the OKT commenced operations again over former Rock
Island track, and he was assigned as a Signalman on February 24, 1983. On
July 19, 1984, the Claimant retired from the OKT and received two weeks vacation pay. The controllin
was hired under the March 4, 1980 Agreement ("Miami Accord") and would be
entitled to have former years of service used in calculating vacation days.
Form 1 Award No. 27675
Page 2 Docket No. SG-26877
89-3-85-3-652
The "Miami Accord" to which the Carrier and the Organization were
parties is a Labor Protective Agreement that provided for the orderly hiring
of former Rock Island employees. In the matter before us, the following
provisions of that Agreement are pertinent:
"Article II. Hiring and Work Rules
1. Eligibility for Hiring - All employees
of the Rock Island or Milwaukee who held seniority on the effective date of this agreement in a
craft represented by one of the labor organizations signatory hereto shall be eligible for
participation in the hiring procedures described
in this Article.
2. Determination of Need for Additional
Employees -- A purchasing carrier shall determine its necessary additional manpower requirements
Island and Milwaukee Lines. Each of the determinations shall be discussed with representatives of th
the Rock Island or Milwaukee with detailed
explanation to them of the basis for each determination prior to serving notice under paragraph
4 hereof, but there shall be no delay in hiring
employees or in commencement of operations. If
a purchasing carrier has employees on furlough,
they will not be subject to recall as a result
of the additional manpower requirements resulting from a transaction, until after bankrupt
carrier employees on appropriate seniority
rosters have exhausted their opportunity to be
hired hereunder.
3. Preferential Hiring -- As a carrier
determines its need for additional employees
under this Article, it shall allow eligible
employees in seniority order on the Rock Island
or Milwaukee the first right of hire respectively, dependent on whose trackage is involved,
and consistent with the purpose of Section 8 of
the Milwaukee Railroad Restructuring Act. Each
carrier, whether acquiring lines or operating
lines on an interim basis, shall independently
make such determination of its needs for additional employees irrespective of any determination of t
Form 1
Page 3
Award No. 27675
Docket No. SG-26877
89-3-85-3-652
In carrying out the purposes of this section,
the purchasing carriers shall first utilize
existing seniority rosters applicable to the
appropriate craft and seniority district for the
lines and territories involved in fulfilling
employment needs in connection therewith.
4. Notification of Hiring -- When a
carrier determines that it needs additional
employees under this Article, such carrier shall
notify the labor organizations representing
employees of the Rock Island or Milwaukee of its
specific needs and advise them exactly where and
how eligible employees of the craft needed from
the Rock Island or Milwaukee should apply for
such vacancies. Eligible employees of the Rock
Island or Milwaukee interested in such vacancies
shall have the responsibility of applying to the
carrier for vacancies in the manner described by
the carrier. An employee shall have 7 days to
apply after receipt of notice from the carrier
or the organization or 20 days after the labor
organization has received notice from the
carrier, whichever occurs first, subject to
paragraph 9 hereof. To the extent that the
carrier has determined a need for additional
employees under this Article, applicants will
be required to meet those physical and rules
standards which the carrier applies to its own
employees on reexamination. The applicant's
seniority in the appropriate craft and seniority
district on the bankrupt carrier will prevail if
the number of qualified applicants exceeds the
carrier's determined need for additional employees. Bankrupt carrier employees who are in
service with a bankrupt carrier at the time of
interim operation or purchase and who are hired
on the commencement of operations by a purchasing carrier pursuant to this Agreement will be
presumed qualified physically and purchasing
carrier will have the burden of proof if it
wishes to challenge such qualifications.
Those employees who are subject to examination on purchasing carrier's operating book
of rules may be required to pass a re-examination on those rules.
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5. Duration of Preferential Hiring -- The
procedures established in this Article shall
continue in full force and effect for not less
than one year from the effective date from the
commencement of operations or as otherwise
provided for by law, but in no event beyond
April 1, 1984.
* * * * *
Article IV. Miscellaneous
1.
2.
3. Milwaukee or Rock Island employees
accepting employment with a purchasing carrier
pursuant to this agreement will be given credit
for service with the former employer in computing vacation qualification, entry rates and
sick leave.
4.
Signed at Washington, D. C. this _4th
day of March, 1980."
Prior to the Claimant's reemployment with the OKT on November 1,
1982, the various Organizations, including the Brotherhood of Railroad
Signalmen (BRS) entered into a Memorandum of Understanding on October 26,
1982, modifying the application of the "Miami Accord" to OKT operations.
Relevant to our deliberations in this matter is Section (2) of the October 26,
1982 Memorandum which reads:
"Article IV, Section 3, of the March 4, 1980
Hiring Agreement is modified so that for the
first two (2) calendar years of operations
(i.e., 1983 and 1984), former eligible Rock
Island employes hired under the March 4, 1980
Hiring Agreement will be treated as new hires
under the National Vacation Agreement; thereafter, they will be eligible for vacation
allowances based on their former Rock Island
service and accrued vacation rights on the OKT."
On November 3, 1982 the OKT and BRS signed an Agreement (No. DP-30OKT). Particularly relevant to
III and IV:
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89-3-85-3-652
'II.
The Oklahoma, Kansas and Texas Railroad Company
is the territory of former Rock Island trackage
extending from Fort Worth, Texas, Northward to
and including Salina, Kansas.
III.
Consistent with the Carrier's legal requirements
the Carrier will use as a source of 'first right
of hire' a list of eligible employees who were
employed by the former OKT Railroad Company on
December 31, 1981. Positions not filled by
former OKT employees will be bulletined to list
of employees furnished by the Rock Island
General Chairman.
IV.
Effective with assignment to a position by
bulletin, and first day worked thereon, Rock
Island employees hired pursuant to the March 4,
1980 Agreement will be considered as having
severed their employment relationship with the
Rock Island Railroad."
The Board has carefully reviewed and considered the various contentions, submissions and awards
review that certain contentions and materials have been presented that were
not submitted or discussed on the property. Therefore, these may not be considered by this Board. Wi
the parties' grounds for disagreeing are understandable in view of the multiple agreements that, in
dispute. In its simplest terms, had the question only been whether the "Miami
Accord" was applicable to the claim, the organization's claim likely would
have been sustained. However, such is not the case.
We find ourselves in agreement with the Carrier on the substance of
this matter. The Claimant had been employed by the former Rock Island Railroad Company until March 3
the OKT, it was in the status of an new employee in the Signalman craft. The
record shows that he was hired only after there were no former Rock Island
Signalman available with first right-of-hire under the "Miami Accord." We
find that the "Miami Accord" covered individuals with seniority in the appropriate crafts and senior
Accordingly, employees, such as the Claimant, hired outside of the appropriate
craft, did not benefit from the "Miami Accord" provision.
Form 1 Award No. 27675
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89-3-85-3-652
When the Claimant was again hired in November 1982, it was pursuant
to the terms of the Memorandum of Understanding between the OKT and the various organizations execut
For all of the foregoing, we must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
fancy J. D
eyes
Executive Secretary
Dated at Chicago, Illinois, this 17th day of January 1989.