Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33162
Docket No. MW-32261
99-3-95-3-74
The Third Division consisted
of
the regular members and in addition Referee
Robert Perkovich when award was rendered.
(Brotherhood
of
Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and refused to
pay Mr. J. W. Jones the lump sum payment
of
$4,000.00 to which
he was entitled under the provisions
of
Article I, Section 1
of
the
July 28, 1992 Agreement (System Docket MW-3239.)
(2) As a consequence
of
the violation referred to in Part (1) above, the
Carrier shall pay Mr. J. W. Jones the lump sum payment
of
$4,000.00"
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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.
Form 1
Page 2
Award No. 33162
Docket No. MW-32261
99-3-95-3-74
Subsequent to the Claimant's dismissal of May 26, 1992 the Carrier and the
Organization entered into an agreement by which employees who qualified for an annual
vacation in calendar year 1991 would receive $4,000.00 provided that those employees
had an employment relationship as of the date of the Agreement. In a separate
agreement the parties further agreed that those employees who were dismissed as of the
date of the Agreement would have their entitlement to the payment determined ". . .
upon the final outcome ofthedismissed employee's claim for reinstatement." On August
9, 1993 the Organization, the Carrier, and the Claimant agreed that he would be
reinstated on a leniency basis. They further agreed that the agreement was ". . . in full,
final and complete settlement of any and all claims J. W. Jones and the Union has, or
may have, arising from the dismissal ... ." When the Carrier failed to pay the Claimant
the $4,000.00 payment in question the Organization pursued the matter until it is now
before this Board for resolution.
We find that the parties' agreements as set forth above require that the claim be
denied. Although one might argue that the Claimant had an "employment relationship"
.rI
despite the fact that he was dismissed as of the date of the Agreement to pay the
$4,000.00 payment to those employees who were otherwise eligible, the parties
themselves agreed that in those cases the employee's eligibility would be governed by the
disposition of the challenge to the dismissal. Thus, we are constrained to look at the way
in which the Claimant's challenge to his dismissal was resolved. When we do so we find
that in return for reinstatement the Claimant agreed that reinstatement would be in
"full, final and complete settlement of any and all claims . . . arising from his dismissal."
Thus, the only question is whether the claim to the $4,000.00 payment arises from his
dismissal. We find that it does. Clearly had the Claimant not been dismissed he would
have been entitled to the payment. Thus, his dismissal placed the entitlement into
dispute and the claim for the payment therefore arose from his dismissal. Because it
does, and because the Claimant accepted reinstatement in lieu of this and other claims,
the instant matter must be denied.
AWARD
Claim denied.
Form 1
Page 3
Award No. 33162
Docket No. MW-32261
99-3-95-3-74
ORDER
This Board, after consideration ofthe dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 25th day of March 1999.