SPL;CiAh B0.':RD OF l.D,;iiS'i:.".? NO, 60=


PARTIES ) Brotherhood of Railtaay, Airline and Stearnahip Clerks,
 TO ) Freight 't.andlers, Express and Station Employee_
 DISPUTE ) and
 New York Central System
 QUESTIO\S '
 AT ISSUE: (1) Did Carrier. violate Section I, Article I of
 the February 7, 1965 Stabilization Agr,:e^ent
 . on April 1, 1965, when it failed to return
 Mr. James Fershee to active service and re
 tain him in compensated service:
 (2) Shall Carrier now be required to return :r.
              James Fershee to service and co-..Ipa;sate him

              at the rate of Position No. 6 at i:oraine, Ohio,

              daily rate, $21.512 (plus ail subsa;uent general

              wage increases) ;or Thursday, April 1, 1965 and

              the sae for each and every day thereafter for

              five days each week until the Agreement has

              been co.,.plied with?


OPINION
 OF BOARD: The pertinent portion applicable herein of Article I,
 Section 1,of the February 7, 1965 national _Srec.-_,.t
          provides that furloughed employees, " as of the

          date of this agreemjant will be returned to active service

          before March 1, 1965,, in accordance with the normal pro-

cedures provided for in existing agreei-.iantsl 11 Subsequently, the
 parties mutually modified the effective date from .-:arch 1 to April 1,
 1965.
          In the instant matter, the facts indicaz:e that the Claimant

was disqualified from his regular position on November 9, 1954, thus
 causing him to be placed in a furloughed status. It is, therefore, the
 Organization's contention that by the Carrier's failure to return the .
 Claimant to active service before April 1, 1965, Article I, Section 1,
 was violated. The Carrier, however, although conceding ,...at the Claimant
 is a protected employee within the purview of Article I, Section 1, in
 sists tint it has not violated said section. _
This dispute requires us to determine the significance of the following language contained in Article I, Section. 1, to the effect . that:
          " ..in accordance with the normal procedures provided for in existing agreements, ...."


Within the framework of this argument, the Carrier predicates its defense
 s

                                                    ::~:r,.: ~ .;o. 31

                                                    Casc :Co. CL-2b-B


            on the provisions of Rules 2 and 3 of the e=fective agree.-:ent. In order , for the claimant to return to service undor normal proc: durus, ::e could be required to bid and then be assigned on any bu'_letin:d position for which he could qualify.


            It appears to this Board that ac cannot igno-ra this portion of the phrzsaoloSy contained in Article I, section 1. Furtherr:.~-r~, the Carrierss explanation of the method used to imple:.:ent the nor::a1 procedures as provided for in existing agreements, is plans-ibie. Naverth,=less, the Organization argues that acceptance or the Carrier s version would necessitate us adding a clause suparim?osir:g the factors of aSility annd fitness -- ono not conte;;~p1at=d by the negotiators and sidatories to the National Agreeurent. Although tae are cogniza:a of the possibility that such view may potentially have an effect of broadar scop,. than envisioned :rein, nonetheless, we are compelled to ascribe a rational meaning to the words used in said section. The Carrier's interpretation of its version of normal procedures provided for in existing a~rce:;nts, as presumed herein, is consonant with the method whereby. a furloughed employee ray be returned to active service. Hence, it is our considered judg:;ent that tae Carrier did not violate the agree.-.:ent.


                                  Ar,.?c_RD


                    Answer to questions 1 and 2 is in the negative.


                                .-7 - ~ .


                                  rfurra~ M. Ro. man

                                  Neut;al :I-ar.:oer


Dated: Washington, D. C.
 March 7, 1969
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_ ::y%-iW 1 COd2~2J2~647·iu43

                          April 3, 1969


Dr. Murray .Vi. Rohman
 Professor of industrial Relations
 S;:hooi of Business
 ·,exas Christian University
 ort Worth, Texas 76129

                          SUBJECT: Dissent to Award \o. 3:

                          Case No. CL-26-


Dear Doctor Rohman:

 You were advised at the time Award No. 31 (Case No. CL-2o- ) of Special Board of Adjustment No. 605 was signed by you on March 7, 1909, that the Employee Members of the Special Board would file a Dissent to that Award. A copy of that Dissent is attached hereto.

    We have decided that we will not file a Dissent to Award No. 36.


                        Very truly yours,


                                    .,


                        ':' ~. _ ; ,


                        Chair,

                        Five Five Cooperate/g Raihvay Labor Organizations


Attachment

 cc: J. P. Hiltz

    W. S. Macgill

    J. W. Oram

    M. E. Parks


    T. A. Tracy

                                          Dissent Award No. 31 Case No. CL-26-E


SPECIAL BOARD OF ADJUSTMENT N0. 605
 I

                        Dissent of Labor Members


        It has not been our practice to dissent from the Awards of this Board with which we disagree. But this award does such violence to both the plain language and the obvious intent of the February 7, 1965 Agreement that we cannot let it go unchallenged.


        There seems to be no doubt in the mind of anyone, claimant Organization, Carrier or Board, that claimant was, as of October 1, 1964, a regularly assigned employee, who had had more than two years of employment relationship, and had had more roan fifteen days of compensated service during 1964, and was as of February 7, 7965 on furlough. He was accordingly, in the language of the agreement, without any exception or condition or qualification, one who "will be returned to active service before [April 1, 1965,] in accordance with the normal procedures provided for in existing agreements, and will thereafter be retained in compensated service as set out above, ...."


        The sole reason assigned for a denial award is that under the existing rules agreement the right to return from furlough was conditioned upon the employee's bidding upon and assignment to a bulletined position for which he could qualify. Apparently claimant could not qualify for mechanical car reporting which was required on all yard-clerk jobs to which his seniority attached, but he had successfully performed the duties of yard-clerk for nearly eight years before mechanical car reporting was instituted.


                The Neutral Member of the Board says he finds himself under

I compulsion to ascribe a rational meaning to the words "in accordance with
        the normal procedures provided for in existing agreements," and therefore

I must deny the claimant any right to be returned to service at all as the
        February 7, 1965 Agreement plainly commands.


        Rational meaning can be ascribed to the language used--in fact its most natural and normal meaning--without contradicting the unqualified right the February 7, 1965 Agreement gives the claimant to "be returned to active service."


        In writing a national agreement covering five crafts and most of the major railroads of the country providing for definite rights of all employees of a described category to return to active service by a specified date the question naturally arose as to what procedures were to be used in carrying out this program. How and when were t e employees

! to be notified? By posting on bulletin boards? By letter to last known
        address? By both? How, when, and where were recalled employees to report

        for service? What, if any, time was to be allowed between notification

        and reporting for service? For the answers to these and similar questions

i the parties agreed that they would turn to the agreements that each craft
 j had, respectively, with each railroad with respect to the procedures
 applicable to return from furlough. Of course the incorporation of existing procedures placed no limitations of any kind on the absolute substantive right of people in the specified category to be returned to active ervice.

 The action of the Board in this Award of curtailing the substantive rights of a claimant, who admittedly falls within the category to whom the Agreement gives substantive rights, can no more be justified than could an award holding that the existing procedures required a recall only when the carrier's operations demanded additional personnel--thus completely neqativing any obligation of the carrier imposed by the Agreement toward furloughed employees.

 As we understand this Award it hinges on the inability of the claimant to qualify for mechanical car reporting work when the performance of such work was a requisite of any yard clerk job that might now be established at the point where he held seniority. Thus confined it is just as wrong as though it stood for a principle of broader application. But since most railroad employees are qualified for some work currently being performed to which their seniority attaches it will, hopefully, have little applicability as a precedent. So viewed it is another example of the same type of aberration that led other neutral members to cut the compensation to which the claimant was entitled in Award 13.
                                              i


                                    Dennis


                            . , w v

                                      e h ty


April 3, 1969