The Third Division consisted of the regular members and in addition Referee Robert L. Hicks when award was rendered.
The Claimant was the Foreman on Specialized Surfacing Gang 27403 from May 1 to November 3, 1995. On November 2 the Claimant was advised that effective with the close of business on November 3 he was disqualified as a Foreman and he was, as of November 6, 1995, to exercise his seniority.
On November 20, 1995, the Claimant allegedly faxed a request to a R. Jonto requesting an Investigation. Supposedly, the Claimant also sent one copy of the fax to a Tom Jones by Registered Mail, but there never was any evidence of this.
When the Claimant heard nothing about his request for an Investigation, the Organization filed a claim contending the time had passed under the Rule to grant the Claimant's request for an Investigation, thus the Carrier had no alternative but to return the Claimant to his Foreman's position and pay him the difference from what he was earning on the lower paid job and what he would have earned had he not been disqualified.
The above facts thus became an unresolved claim that has been advanced to the Board for adjudication.
The Specialized Surface Gang is governed by a Special Agreement which clearly states that:
In dispute is the following language of the Special Agreement applicable to the Special Surfacing Gang:
Rule 8 is the "Promotions, Assignments and Displacement" Rule and does provide that employees disqualified after a specific number of days may request an Investigation. Form 1 Page 3
As is evident, Rule 8 comes into play only when an individual is disqualified after working 120 days.
As is obvious, May 1 through November 3, 1995, is a period in excess of 120 working days. However, during this period the Claimant was off on vacation for 56 hours and was authorized two days paid bereavement leave, plus there were five travel days.
The Organization argued that the 1.25 multiplier should be used in computing working days because the Claimant's workweek was compressed to four ten hour days, and thus cited Rule 15(m) in support.
Rule 15(m), however, confers only accreditation for vacation purposes. Specifically, it reads as follows:
The Carrier's position is that "working days" means days the Claimant actually worked as a Foreman. It was not intended to relate to days the Claimant was paid for not working, such as vacation and bereavement days.
The Board believes the Carrier's position regarding "working days" is better reasoned because an employee cannot gain experience or display his expertise while off on vacation or bereavement leave. This can only be done while on the job.
Thus, pursuant to the explicit provisions of the Agreement pertaining to Specialized Surfacing Gangs, the Carrier can disqualify an employee from a position in the Specialized Surfacing Gang for any reason prior to 120 working days without that individual having recourse to the Investigation procedures. This is a harsh and compassion less application of the Rules. The Board has consistently stated that arbitrators are bound by the Railway Labor Act to interpret and apply contract language. The Act does not permit an arbitrator to indulge by going beyond that Form 1 Page 4