(1) The Agreement was violated when the Carrier failed to permit Mr. G. Gonzales to displace junior employe R. Crawford on Gang 04111, Cleveland, Ohio on September 8, 1993 (System Docket MW-3262).
(2) As a consequence of the violation referred to in Part (1) above, Mr. G. Gonzales shall be awarded a B&B mechanic's date of August 30, 1993 and he shall be compensated for all wage loss suffered beginning September 8, 1993 and continuing until the violation ceases."
This claim involves the interpretation of Rule 5, Returning to Duty After Leave of Absence, etc. - Exercise of Seniority, which provides, in pertinent part:
The undisputed facts reveal that the Claimant, a Trackman on the Youngstown Seniority District, was off on disability from June 22, 1993 to September 8, 1993. During the Claimant's medical disability, junior Trackman R. Crawford from the same seniority district bid on, and was awarded pending qualification, a B&B Mechanic's position on Gang 04111 at Cleveland, Ohio. Crawford's new position was at a higher pay rate and was effective August 30, 1993. Upon the Claimant's return from disability leave on September 8, 1993, he attempted to displace Crawford. The Carrier's refusal to permit such displacement led to the filing of the instant claim.
The Organization argues that Rule 5 clearly and unambiguously entitles the Claimant to displace junior employee Crawford from the position he was promoted to during the Claimant's absence due to disability. It notes that the new position was a promotion, and that Crawford was still in his qualification period when the Claimant sought to displace him. The Organization contends that the only modifying exception written in Rule 5(a) is that the displacement is subject to Rule 3, Section 2, which neither party claims is applicable herein. It asserts that the exclusionary principle applies and negates the Carrier's contention that Rule 5(a) does not contemplate acquiring seniority in another class, citing Second Division Award 12025 and Third Division Award 29852.
The Carrier contends that Rule 5(a) was never intended to give employees seniority in classifications in which they are not qualified. It asserts that Crawford obtained B&B seniority under Rule 4 on August 30,1993, and that the Claimant had no B&B seniority which would enable him to displace Crawford on September 8,1993. The Carrier argues that on-property Third Division Award 25935 is controlling and holds that a similar Rule did not allow an increase in seniority in other classes. The Carrier asserts that a rule of reason should apply, citing Third Division Awards 20650, 14240; Second Division Award 11250, and avers that the absurd result of granting the Claimant
seniority in a classification he never worked retroactive to a time he was still on disability leave would result from a sustaining award.
After careful consideration of the record, the Board finds that Third Division Award 25935 involving the former Penn Central Railroad is distinguishable based upon the language of the applicable Rule. In that case, the operative language was that an employee returning from leave shall "return to his former position or exercise seniority to any position advertised during his absence." There was no language in Rule 3-D-5 giving the returning employee the right to displace any junior employee promoted during his absence as there is in Rule 5(a). While the use of the term "junior employee" does imply that the employee being dispatched is on the same seniority roster as the returning employee, the Claimant was senior to Crawford on the Trackman Roster at the time of the B&B Mechanic job posting and award. That is the seniority the Carrier considered in awarding the position to Crawford. The fact that Crawford had obtained B&B Mechanic seniority between August 30 and September 8,1993 while qualifying for the position cannot defeat this claim. There is no express limitation within Rule 5(a) concerning where the promotion could take place, although it does state a modifying exception, which it is agreed does not apply in this case.
This case must be governed by the principle - Expressio unius est exclusio alterius, see Second division Award 12025, Third Division Award 29852. The inclusion of a proviso to the ability of a returning employee to displace a junior employee promoted in his absence must be interpreted to infer that the parties did not intend any other limitation. The Carrier's interpretation would place a further limitation on this displacement right to include the fact that the displacement can only occur within the same class of seniority, and would effectively exclude promotions outside the seniority roster from its terms. Had the parties intended such a narrow construction, they certainly would have used less broad contractual language. Under such circumstances, we are inclined to find that the Carrier violated Rule 5(a) when it failed to permit the Claimant to displace Crawford upon his return from medical disability leave.
Having so found, we are in agreement with the Carrier that the application of Rule 5(a) to the facts of this case would not permit the Claimant to attain seniority within the B&B Mechanic Roster at a time previous to when he was medically qualified to return to work. The Claimant should be permitted to qualify on the B&B Mechanic position and have his seniority on that roster begin on September 8, 1993 should he Form 1 Page 4
Carrier Members' Dissent
to Third Division Award 33632 (docket MW-32302)
Referee Newman