` Case
r;o.
CL-S-E
SPECIAL BOARD OF ADJUSTMENT 1\10. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Express and Station Employees
DISPUTE ) and
Grand Trunk Western Railroad
QUESTION
AT
ISSUE:
(1) Is Chicago Mail Handler A. C. Baxter entitled to be paid
in accordance with Article IV, Section 1, of the February 7,
1965 Agreement commencing March 1, 1965?
OPINION On October 1, 1964, the Claimant held a regular assignment as
OF BOARD: Mail Sorter. On October 29, 1964, he was displaced as a result
of a senior employee returning to active service from leave of
absence due to illness. Thereafter, the Claimant was reduced
to a furloughed status until returned to active service on February 27, 1965.
Until assigned to a position of Relief Caller-Vacations on August 13, 1965,
he worked intermittently performing extra and relief work. He also worked
as Mail Sorter in November and December; and on December 15, 1965, Claimant
was awarded a regular position of Storekeeper Helper. In the instant claim,
the Organization seeks the additional compensation for this period of time
as provided by Article IV, Section 1 of the February 7, 1965 National
Agreement.
The parties are in agreement that the Claimant met the qualifications for a protected employee, pursuant to Article I,,Section 1. They
disagree, however, as to whether he is entitled to have his rate of compensation preserved as of October 1, 1964. In essence, Article IV, Section 1,
provides that protected employees shall not be placed in a worse position
with respect to compensation than as of October 1, 1964, subject to the provisions of Section 3.
Section 3 of Article IV, in essence, provides that a protected
employee who is bumped in the normal exercise of seniority will not have
his compensation preserved, but will be compensated at the rate of pay and
conditions of the job he bids in. Hence, in the instant dispute, the Claimant, having been bumped by a senior employee, was relegated to the compensation at the rate of the job he bids in. At this juncture, the critical point
in controversy herein is exposed. What if the bumped employee has no job
available for him to bid in? The Organization argues that in such an event,
Section 3 of Article IV has no application. Under these circumstances, only
Section 1 is applicable, which provides that he shall not be placed in a
worse position with respect to compensation as of October 1, 1964. In fact,
the Organization recognizes that if the Claimant had been able to bid in on
a lower rated position, under the facts presented herein, he would have received only the compensation as provided on the job which he bid in. However,
in view of the fact that he was unable to bid in on any job until December 15,
1965, he was entitled to the protective provisions of Section 1.
1
..
' Award No. 44
Case No. CL-S-E
- 2 -
' What is the significance of the February 7, 1965 National Agree
ment, as applied to the instant dispute? Without a job stabilization agree
s went, an employee who is furloughed does not have any guarantee. Therefore,
under the said Agreement, where a job is not available for him to bid in and
he is furloughed, in our view, it would appear that he is protected by
Section 1 of Article IV.
We recognize that this relationship may place such an employee
in a better light than one who does bid in to a lower rated job, and is com
pensated at the rate of that position. Nevertheless, we are required to
interpret the provisions of the National Agreement as written. 41e would be
transcending our responsibilities were we to add, amend, alter or subtract
from the language contained therein. In this regard, we would indicate that,
in our view, the conclusion arrived at is consonant with the language as
expressed in Sections 1 and 3 of Article IV.
Award
Answer to question 1 is in the affirmative.
d.u
~_.. , ,.
V
Murr M. Rohman -
Ne tral Member
Dated: Washington, D. C.
April 18, 1969
~X
bISSI:V'I' OP CA!t??IJ:J; r,p ]My3Lf,S OP SPECIAL
BOARD OF A1>`JUSI:M_L\I'
N0. 605 `1'0 MUM \0. 44 (CASE I\0. CL-S-I;) - AOfTi·EV`l' 0f
^_--___-- Flilil;Ll-1Rl-_'/ L1.9G5
The Carrier 1.!emb,rs of this f.oard a1;c of the vies; that Award No. 44
by Neutral P.l:~nber, Loctor ~i.~urray 1,1, hohwan, constitutes a gross Misinterpretation
of Article IV of the I'ebruary 7, 1965 .Agreement.
When tho February 7th Anree:::cnt was, being negotiated, and certain
compensation guarantees were provided for protected employees, the carriers made
it clear that they ware not willing to provide such comhcnsation guarantees in
situations where the employees were the moving parties and voluntarily created
certain conditions over which the carriers had no control. Thus, they said, that
where
a carrier abolished positions, and protected euililoyces vrerc forced to
exercise their seniority, the carriers would maintain the compensation guaranteed
by Sections ). and 2 of Article IV to protected employees adversely affected,
regardless of the nu;:ber of displacements resulting from tire bidding and
bumping processes initiated by the job aholishm.nts, and regardless of whether
or not any of such employees were i=urlouyhc.d in the process because no work was
available for them.
On the other hand, they said that they were not willing to apply such
guarantees to employees displaced as a result of employees Voluntarily exercising
their seniority, over which managgom;nit has no control.
Accordingly, Section 3 of Article IV vas adopted which provided
specifically that any protected employee who bids in a. job or is bwnped as a
result of a voluntary exercise of seniority vain not be entitled to have his
compensation preserved as provided in Sections 1 and 2 of Article IV. The
Section goes on to say that such an employee vain be compensated at the rate of
pay and conditions of the job he bids in. It does not, at this point, mention
anything about employees who are furloughed or go onto extra lists as a result
of such voluntary exercise of seniority, nor indicate what their compensation
will be. This appears to have caused some dilemma in the mind of the neutral
member of the Board, and he arrived at the completely erroneous conclusion that
such
employees
were covered by Section 1 of Article IV despite the clear and
specific provision in Section 3 that any protected employee who is bumped as a
result of an employee exercising his seniority in a normal way by reason of a
voluntary action trill not be entitled to have his compensation preserved as
provided in Sections 1 and 2 of Article IV.
The neutral made two statements in an effort to extricate himself
from what appeared to him to be a dilemuna.
The first one is a complete non sequitur. We quote.:
'9trithout a job stabilization agreement, an employee who is
furloughed does not have an?· guarantee. Therefore, under the
said Agreement, where a job is not available for him to bid in and
he is furloughed, in our view, it would appear that he is protected
by Section 1 of Article IV.".
_ z. _
The conclusion that an e;npJ.oycc who is ful"louc~ho(1 as a result of a
voluntary exercise of seniority is protected by Section ~l of Article 1V Boos
not follow from the prcnisc that "without a job stabilization ag rc:erlcnt, an
employee who is Furloughed does not have any gu:uantce." It depends on what
the agl"CCr1iC11t provides, and the EugI"CCiil:alt clearly
p1"O\')C'')S
that in the case
of a voluntary exercise of seniority Section 1. of Article IV does not apply.
Keep in mind that tile carriers arc not contending that Section 1 does not
apply t:hrnre some action by the carrier miles the exercise of seniority
necessary.
The second stateillcnt of the neutral mrlbcr is made after he observes
that the conclusion would lead to the rather incongruous result that the
furloughed ei:,ployee would be placed in a better light than the employee senior
t0 him who was able t0 bid in t0 a IOwCi-rated job. Tile statement is as
f011OS':S
"Nevertheless, we arc required to interpret the
provisions of the National Agret:nent as written. We would be
transcending our responsibilities mere we to add, amend, alter or
subtract from the language contained therein. In this regard, tae
would indicate that,
111 0:11'
view, the conclusion arrived at is
consonant with the lan g uage as expressed in Sections 1 and 3 of
Article IV."
It71at the neutral nlcinber has done in this instance is to ignore the
specific language of the agreement which provides in Section 3 of Article IV
that Sections 1. and ?. are not applicable in the case of a voluntary exercise
of seniority - and then reached a conclusion that did in fact amend and alter
the language of tile agreement.
r
During the argument of this case before the Board, a representative
of the employees referred to Question and Answer No. 1 of Section 3 of Article IV
on page 14 of the Agreed-Upon Interpretations of November 24, 1965. This Question
and Answer reads as follo:a:
"Question No. 1: If a 'protected employe' for one
reason or ano ler considers another job more desirable than the one
he is holding, and he therefore bids in that job even though it may
carry a louver rate of pay than the job he is holding, what is the
rate of his guaranteed compensation thereafter?
"Answer
to Question No. 1: The rate of the job he
voluntarily fibs in." "
The argument made was that
somehow
this proved that Srcti.on 3 had no
application to an employee who is furloughed at the end of the bumping process, and
that, therefore, Section 1 of Article IV applied. All that this agreed-upon
interpretation does is provide that in the simple case where a protected employee
voluntarily bids in a job that he considers more desirable, even though it may carry
a lower rate, he will be guaranteed tile rate of the lower paying job. The
significant fact is that there is no agreed-upon interpretation creating any
guarantee for employees v:ilo are furloughed as a result of a voluntary exercise
of seniority. It tool: a special agreement to create a guarantee for the employee
who bids in another job, and it obviously would require n special agreement to
create a guarantee fQr,the employee who is furloughed, particularly since Section 3
provides that the guarantees under Sections 1 and ~~2 are not applicable. There is
no such agreement.
. , _ 3 _
'1'hc pos ition tal en by the organizatiolt. in this case is another step
in its efforts to take away from the carriers the fern protective benefits the
carriers secured in the February 7th P.~reewent in granting unprecedented.
protective benefits to the employees. ~ If the awar<1 in this case we re to
prevail, it voul.d produce an uninte;ld~d and unfair result.
For these reasons, v:e dissent.
r.
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~___.___.
Carrier `emhr
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