FINDINGS: The Board finds that the Carriers and Organization are, respectively, Carriers and Organization, and Claimant(s) employees within the meaning of the Railway Labor Act, as amended;
that the Board is duly constituted and has jurisdiction over the parties, claim and subject matter herein, and that the parties were given due notice of the hearing, which was held on June 8, 1999. The Board makes the following additional findings:
bargaining agreement which has been in effect at all times relevant to this dispute, covering the Carriers' employees in the Maintenance of Way craft.
2. Claimants are employees of the Burlington Northern Sante Fe Railway Company, subject to protection under amended Section 1 of Article I and were in active service on September 26, 1996. The Organization asserts that Claimant Gonzales' claim is representative of all Claimants' claims. The record indicates that the Carriers furloughed Claimants in January 1997 after certain positions were abolished. The Parties do not dispute that Claimants were protected employees under Section 1 and that the Carriers agreed to compensate Claimants under the protected rate for the regular work days on which they were furloughed. In its claim, the Organization seeks Claimants' recall to service. The organization argues that the Carriers are required, by Article I, Section 1, to restore Claimants to service.
3. The Parties subsequently discussed Mr. Gonzalez's claim, and the Carriers, in a letter dated July 17, 1997, declined to return Claimant Gonzalez to service, stating:
5. On February 7, 1965, HMWE and four other Unions entered into an agreement with the National Railway Labor Conference ("NRLC") and the Eastern, Western, and Southeastern Carriers' Conference Committees. The Agreement provided employment and income stabilization for employees with two or more years of employment with a signatory Carrier, as of October 1, 1964. Article 1, Section 1 of the Agreement provides, in pertinent part:
7. The Organization asserts that the plain language of Article 1, Section 1 prohibits the Carriers from furloughing Claimants absent other authority provided in the February 7°^ Agreement. It asserts that the language "retained in service subject to compensation" is clear: An employee cannot be furloughed unless such action is taken pursuant to authority contained in other Sections of the Agreement.
8. The Organization argues that under the 1996 Amended Agreement, employees are either full-time, protected employees who hold the regularly assigned positions protected by Article I, Section 1, or "seasonal" employees protected under Section 2 of the same article.
9. The organization asserts that "active service" means employees holding an assignment and "all extra employees on extra lists pursuant to agreements or practice who are working or available for calls for service and are expected to respond when called" and furloughed employees who worked, on average, seven days during each full month furloughed in 1964. The Organization claims that any employee falling into these classes was to be "retained in service subject to compensation".
10. The Organization contends that under the Carriers's interpretation of Article I, Section 1, there would have been no need to recall protected employees to service as long as they were compensated at their protected rates after March 1, 1965. The Organization argues that that is not what the section required. The Organization contends that Section 1 required employees protected under it to be recalled to active service, retained in service, and compensated. The Organization further contends that the 1996 amendments, as explained by this Hoard, simplified the protective scheme contained in the February 7 Agreement: Employees are either full-time protected employees who hold regularly assigned positions protected by Article I, Section 1 or "seasonal" employees protected under Article I, section 2. The organization claims that the Amendments do not contemplate "extra employees" or any other classes of employee except regularly assigned and seasonal.
11. The Organization further claims that the Carriers' view of Section 1 protection as it applies to multi-rate employees - that it has the right to furlough such employees for any length of time during the calendar year so long as they pay the employee in the following calendar year for any loss in guaranteed compensation - is contrary to one of the purposes of the February 7°" Agreement: to provide income and employment stability to long-service employees. The Organization submits that this example provides further "internal support" within the February 7°" Agreement that the Carriers had no authority to furlough Claimants.
12. The Organization contends that the February 7 Agreement permits reductions in force of protected employees under only two circumstances: when a Carrier suffers a decline in business in accordance with the formula contained in Section 3: or when, under Section 4, an "emergency" exists which forces a reduction. The Organization points out that, in furloughing Claimants, the Carriers did not rely on either Section for authority.
13. Citing authority, the Organization argues that the Board has previously determined that employees protected under Article I, Section 1 must be retained in service subject to compensation until removed by natural attrition. Citing further authority, the organization asserts that the Board has concluded that the Carrier's furlough of employees without evidence of either a business decline or an emergency is without contractual authority.
14. The Organization further claims that contemporaneous explanations of the February 7" Agreement given by the Carrier's Chairman, at the time the Agreement was executed, demonstrate that the Carriers understood protected employees could not be furloughed. The Organization points out that in response to questions, the Chairman stated that once an employee is protected, the Carriers are "stuck with him". In so stating, the organization contends, the Carriers' representatives understood that employees are to be retained in service subject to compensation and that a carrier may not furlough an employee protected under Section 1 unless Section 3 and 4 exceptions are present. The organization asserts that since Sections 3 and 4 were not relied upon by the Carriers, it had no right to furlough Claimants. For these reasons, the Organization contends that the claims should be
15. The Carriers assert that Article I, Section 1 must be read in toto. The Carriers point out that in the provision, the Parties used three different phrases to address how protected employees would be handled: (1) retained in service subject to compensation; (2) returned to active service: and (3) Retained in compensated service. The Carriers assert that the phrase "retained in service" means that a protected employee retains his employment relationship with his employing Carrier whether he is holding a regularly assigned position, on an extra board or extra list, furloughed, on a leave of absence, or unable to work due to personal injury or illness. The Carriers argue that by the Agreement, the Parties agreed that protected employees would retain their employment relationship "unless or until retired, discharged for cause, or otherwise removed by natural attrition."
16. The Carriers point out that the February 7 Agreement provides that employees who were furloughed on the date of the Agreement would be returned to "active service" and "before March 1, 1965." The Carriers assert that the Parties use the phrase "returned to active service" when they intend to change the status of an employee from furloughed to active service; the Parties did not use the phrase "retained in active service" in the first sentence of Article I, Section 1, and asserts they would have done so if it had been their intent that protected employees could never be furloughed in the future. The Carriers point out that, instead, the Parties used the phrases "retained in compensated service" and "retained in service subject to compensation". The Carriers argue that if the experienced negotiators and drafters of the Agreement had intended that all employees would forever be "retained in active service" they would have used that phrase, just as they did elsewhere in the very same section of the Agreement. The Carriers contend that the fact that the Parties did not do so is direct evidence of the Parties' intention that Article 1, Section 1 guaranteed covered employees two things: retention of employment status, and, if furloughed, compensation protection.
17. The Carriers assert that under Article 11, Section 1, entitled "Use and Assignment of Employees and Loss of Protection", 6
the Parties understood and expected that employees would be furloughed from time to time. The Carriers point out that the provision states: "A protected furloughed employee who fails to respond to extra work when called shall cease to be a protected employee."
18. The Carriers further point out that there is evidence contemporaneous with the adoption of the Agreement that protected employees were furloughed immediately following the implementation of the agreement beginning as early as March 1, 1965. The Carriers point out that the Organization never filed a claim or contended at that time that the Carriers were contractually barred from furloughing these protected employees.
19. Citing authority, the Carriers contend that the Board has previously addressed this very issue, in 1967; the Board found no bar in the Agreement to the furloughing of protected employees under the provisions of the February 7°° Agreement. In one decision, the Carriers point out, the Board specifically found that the February 7, 1965 Agreement "permits the furloughing of an extra-protected employee where there is neither a decline in the Carriers's business nor any emergency conditions as set forth in Sections 3 and 9 of Article 1 of that agreement."
20. Citing further authority, the Carriers assert that the organization has repeatedly filed compensation claims on behalf of protected employees who were furloughed, but never challenged the Carriers' authority to furlough those employees in those instances.
21. Finally, the Carriers argue that the Organization's position would create an absurd result. The Carriers argue that the Organization's position would effectively "freeze" the workforce at the level of all protected employees. The Carriers assert that it is not obligated to create "make-work" or positions in order not to furlough employees during a time when there is no work. The Carriers argue that the Board has long established the principle that the Parties agreed to maintain a workforce of protected employees, not to maintain unnecessary positions. For these reasons, the Carriers urge that the claims be denied.
OPINION: The facts in this matter are not in dispute. Following an abolishment of certain positions, Claimants had insufficient seniority to hold regularly assigned positions and were furloughed. During the period of their furlough, Claimants were paid protective benefits in accordance with Article IV, Section I. They were subsequently returned to active service in accordance with their seniority rights.
The Organization argues that the Carrier may only furlough employees under the Agreement where there is "a decline in a carrier's business in excess of 5%" (under Article I, Section 3) or "under emergency conditions such as flood, snowstorm, hurricane, earthquake, fire or strike" (under Article I, Section 4). The Carrier responds that it has always possessed the right to determine the size of its active BMWE-representative work force except as expressly limited by the Agreement, and did not violate the February 7 Agreement by furloughing Claimants. For the reasons which follow, the Board is persuaded that the Carrier is not prohibited under Article I, Section 1 from furloughing Claimants and thus did not violate the Agreement in so doing.
Contrary to the Organization's contention, the Agreement neither expressly states nor implies that employees will not be furloughed. The Agreement states that certain employees "will be retained in service subject to compensation as hereinafter provided
unless or until retired, discharged for cause, or otherwise removed by natural attrition." The Agreement does not state that such employees will be retained in active service, as the Organization asserts. Rather, it explicitly states that such employees will be retained in service subject to compensation. The Carrier correctly points out that a furloughed employee is "retained in service subject to compensation".
The Board is persuaded that, in making the Agreement, the Parties specifically chose not to require the Carriers to retain protected employees in "active" service. Article II', Section 1 establishes that the Parties understood that a protected employee could be furloughed, but would lose his or her Article I, Section 1 protection if he or she fails to respond to extra work when called. (See Article II, Section 1)("A protected furloughed employee who fails to respond to extra work when called shall cease to be a protected employee").
The 1996 Amendment to the February 7°" Agreement continued the protection to employees "who are in active service and who have or attain ten (10) or more years' of employment relationship". The protection afforded to those employees is the same in the September 1996 as the February 7" Agreement: "[Such employees] will be retained in service subject to compensation as herein provided unless or until retired, discharged for cause or otherwise removed by natural attrition".
The Board is persuaded that the foregoing interpretation of the February 7" Agreement and its 1996 Amendment is consistent with the Parties' practice and prior Board decisions. Correspondence submitted by the Carrier from the period shortly after the February 71" Agreement was adopted indicates that in 1966, the Carrier furloughed a number of employees on several occasions. (See Carriers' Exa. E-1 through E-6). The organization never contended at that time that the Carrier was acting beyond its rights in furloughing said employees.
The Board is persuaded that the fact that the Organization failed to claim that the Carrier was barred by the February 7t" Agreement from furloughing protected employees indicates that the
organization believed at the time that the Carrier had the right to furlough employees. The Board also notes that the Organization, in several cases decided by SBA No. 605, argued that employees whose positions had been abolished reverted to a furloughed status. (See, e. g., SBA No. 605, Award No. 126; SBA No. 605, Award No. 157).
In rejecting the Organization's position, SBA No. 605 found there was:
SBA No. 605 concluded that the February 7", 1965 Agreement permitted the furloughing of an extra-protected employee where there is neither a decline in the Carrier's business nor any emergency conditions as set forth in Sections 3 and 4 of Article I of the Agreement. The Board is persuaded that the reasoning of SBA No. 605 in Hotel and Restaurant Employees is sound and equally applicable to this dispute.
The cases cited by and relied upon by the Organization are not to the contrary. In Chicago, Rock Island and Pacific Railroad Company and Brotherhood of Maintenance Way Employes, SBA No. 605, Award No. 102, (June 10, 1969), Arbitrator Friedman found that the Carrier's claim that employees on furlough had lost their protected status under the February 7" Agreement lacked merit. The Board found that the Carrier "was obliged pursuant to Article I to return them to active service before March 1, 1965, and thereafter retain them in compensated service". The Board did not state that the Carrier was obligated to retain Claimants in active service, as the Organization argues here.
In New York, Susquehanna and Western Railroad Company and Brotherhood of Railroad Signalmen, SBA No. 605, Award No. 164 (December 8, 1969), Claimants had been furloughed without compensation. The Carrier asserted that they had been so furloughed under Article I, Section 3 on account of a "decline in business and weak financial position". Noting that the Carrier was prohibited from laying off protected employees simply because "business had fallen off", SBA No. 605 found that the Carrier failed to prove that it had suffered a decline in its business in excess of 5$ as required by Article I, Section 3 and thus had no contractual authority to furlough Claimants. The Board did not address the question presented in this dispute, whether the Carrier had contractual authority to furlough employees under Article I, Section 1.