This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The instant claim involves a dispute between the parties over the abolishment of a Safety Assistant position held by the Claimant, from July 13, 1998 to September 3, 1999, the effective abolishment date. The Organization contends that pursuant to a December 17, 1997 Memorandum of Understanding, the employees awarded several Safety Assistant positions bulletined on June 1, 1998 were entitled to retain their positions for two years, from the July 13, 1998 effective award date to July 13, 2000. The abolishment of the Claimant's position precluded him from fulfilling his two-year commitment, the Organization argues.
The Organization points out that the record established that the Claimant applied for the position advertised for the territory designated as the Iowa Jct. - Avondale Operating Division, represented by BMWE General Chairman Sanchez. The Organization essentially argues that once the position designated as the Iowa Jct. - Avondale Safety Assistant was advertised and awarded to the Claimant, the Carrier's unilateral abolishment of the position, without referring the matter to the Safety Committee and before the Claimant had served his two years, violated the Memorandum of Understanding.
The Carrier argues that, pursuant to the above Memorandum of Understanding, its obligation only extended to establishing one Safety Assistant per operating division, in this case, the Gulf Operating Division, 180 miles of which consisted of the Iowa Jct. - Avondale line. According to the Carrier, after the Iowa Jct. - Avondale position was abolished, a BMWE-represented Safety Assistant still remained on the Gulf Operating Division, under the jurisdiction of BMWE General Chairman Hemphill. Thus, the Carrier stresses that it did not violate the Memorandum of Understanding when it abolished the position of second Safety Assistant on the Gulf Operating Division once "it became clear very quickly that a Safety Assistant was not needed for the Iowa Junction to Avondale line."
The Board carefully reviewed the entire record as well as the arguments set forth by the parties. The relevant paragraphs of the December 17, 1997 Form 1 Award No. 37464
Initially we note, from our review of the Safety Assistant advertisement bulletin discussed above, that the Iowa Jet. - Avondale position did appear to have been advertised in a manner which perhaps erroneously suggested that it was an operating division of its own. However, despite the confusion that may have been caused by the Iowa Jet. - Avondale line not being identified as part of the Gulf Operating Division, the on-property correspondence exchanged by the parties indicates that the Organization did not contest the abolishment from the standpoint that eliminating the Iowa Jet. - Avondale position left the Gulf Operating Division without a BMWE-represented Safety Assistant. For example, we note that in certain correspondence the Organization referred to the Iowa Jet. - Avondale line as "Prior Rights Seniority Zone 1" and never contended that the Iowa Jet. - Avondale line constituted a Carrier operating division. We understand that the real crux of the Organization's position is that once the two Safety Assistant positions were bulletined and assigned on the Gulf Operating Division, the Carrier could not unilaterally abolish one of those positions.
From our analysis of the facts and circumstances in light of the relevant Memorandum of Understanding provisions quoted above, we agree with the Organization's position. It is clear to the Board that the Carrier's requirement, under paragraph A was to establish at least one full-time maintenance of way Safety Assistant position for each operating division. By the Carrier's own admission, pursuant to the safety bulletin posted on June 1, 1998, it did create two positions for one operating division by establishing one position for the Avon Jet. - Avondale portion of the Gulf Operating Division and a second position for the balance of the Division (1,100 track miles). We also note that the 14 months during which the Claimant held the position was not an insignificant amount of time. That fact undermines the Carrier's position that its decision to abolish the job was made "soon after" its establishment, on the Carrier's premise that it was operationally unnecessary to retain it. "Soon after" in this context cannot mean 14 months, we hold.
Furthermore, from our review of paragraph B, above, we find that the language therein is absolute, and that it unequivocally provides that each Safety Assistant shall serve a two-year term. There is no dispute that the abolishment of Form 1 Award No. 37464
the supposedly duplicative position held by the Claimant resulted in his inability to complete his two-year term. Thus, the Organization's contention that the abolishment prevented the Claimant from fulfilling his two-year commitment as a Safety Assistant, at a higher rate of pay, in violation of paragraph B, is supported by the clear language of the parties' Memorandum of Understanding, we rule.
Additionally, paragraph F, above, the third provision relevant to the Board's resolution of the instant dispute, states that any party wishing to remove an employee before the expiration of his term may refer the matter to the committee. We note that the inclusion of the word "may" as opposed to "shall" does not require either party to raise such issue before the committee, and that the word "abolishment" furthermore does not appear in paragraph F, either, we note. The Carrier urges the Board to interpret this provision in its favor, by ruling that if it had a right to remove, it surely could likewise abolish the duplicative position without any resulting violation of the Agreement, we understand. As numerous Boards have previously held, however, agreement language is to be applied as written. We therefore disagree with the Carrier's interpretation of paragraph F as, essentially, an attempt to add language to that paragraph beyond any reasonable reading of its terms.
The Memorandum of Understanding is therefore devoid of any provision addressing the abolishment of Safety Assistant positions. We have no basis for concluding that "removal" and "abolishment" should be read synonymously under these circumstances. We disagree with the Carrier's reading in that manner.
Again, returning to paragraph A, our interpretation of the words "at least," found in paragraph A, convinces us that the Carrier could establish more than one Safety Assistant position on a particular operating division. The record before us indicates that this was exactly the situation that occurred in the current case, as explained above. Paragraph A did not restrict the Carrier from establishing more than one position per operating division, even though it clearly was not required to do so. Thus, in 1998 this position was properly created and filled, we rule.
Second, applying paragraph B to the facts and circumstances herein, once the Iowa Jct. - Avondale position had been bulletined and filled by the BMWE General Committee representing employees on the covered territory, given what we previously have stated was the clear language of paragraph B, the Claimant was then expected to serve a term not to exceed two years. Thus, as we read paragraphs Form 1 Award No. 37464
A and B together, once the Claimant was selected for what turned out to be one of two Safety Assistant positions on the Gulf Operating Division, the Claimant had an express entitlement, under paragraph B, to serve out his two-year commitment on the higher rated position, we ultimately conclude.
For the reasons set forth above, we rule that the Organization satisfied its burden of proving that the Carrier violated the Memorandum of Understanding when it abolished the Iowa Jet. - Avondale Safety Assistant position held by the Claimant under the circumstances present in this case. Thus, the claim is sustained, and the Claimant is entitled to the monetary relief requested in Part (2) above.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.