Award No. 33647 Docket No. CL-33922 99-3-97-3-416
The Third Division consisted of the regular members and in addition Referee Robert Perkovich when award was rendered.
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.
Claimant and other employees of the Carrier were notified that their positions were going to be transferred from Denver, Colorado, to Ft. Worth, Texas, but that it was not anticipated that any of the positions in question would be abolished. While the transfer process was pending, the Claimant submitted a request on January 30, 1995, for sick days under Rule SSG. Subsequently, the Carrier and the Organization met and claim ensued.
reached an Agreement with regard to those positions, including that of the Claimant, that provided that certain positions would be abolished, but that employees in those positions could obtain a separation allowance.
So notified, the Claimant chose the separation allowance and, on February 27, 1995 executed a document whereby she released the Carrier from "...any and all ...claims arising out of or pertaining to my employment with and by..." the Carrier. However, in doing so, the Claimant amended the document by inserting the following language: "Was assured by Ernie Rangel before signing that ...specifically buy-back days would be paid separately from separation allowance." With that notation, Range[ also signed the document.
The Carrier would be correct in all regards, but for one important consideration. The Claimant chose another route, that is, she chose to amend the release to preserve her claim to the sick days. More importantly, Rangel, a Carrier representative with apparent authority, joined in that amendment. Thus, the release must operate by its express, bilateral terms, and those terms did not release the Carrier from the Rule SSG sick day claim.
We are mindful that Range] provided a statement during the handling of the case on the property that, contrary to the Claimant's assertion, he did not make any verbal assurances to the Claimant with regard to her request for Rule SSG sick days and that the Board is not necessarily empowered to make credibility assessments as other tribunals might. However, there is no question that the Claimant amended the terms of the release to put Rangel, and therefore the Carrier, on notice that she did not waive her claim to Rule SSG sick days and that Rangel agreed with those terms. Thus, it is of no consequence whether or not Rangel made any assurances as alleged by the Claimant. Form 1 Page 3
Carrier Members' Dissent
to Third Division Award 33647 (docket CL-33921)
(Referee Perkovich)
On January 10, 1995, Carrier advised the Organization of the Implementation of Phase IV of the consolidation of forces into the Customer Support Center (CSC) at Ft. Worth, Texas. Claimant was one of the individuals to be transferred to the CSC.
On January 30, 1995, Claimant initiated a claim seeking to buy back her accumulated sick days under the provision of Rule 55G.
On February 27,1995 Claimant signed a voluntary separation release agreement in which, for s sum certain, she released the Carrier from, ". . .any and all claims arising out of or pertaining to my employment with and by BN. . . :" She added at the bottom of the release the following: