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G. E. Lcipioy . Chairman Jn"n J. NcN,:r:~er,: · ., :.r.mc·
Ra;lway Lnl:or Builclin0 · Suite 804 Fifth wlocr, VFNJ
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400 Fust Street, N.W. . Washington, D. C. 20001 200 Maryie.;c; F.vc., f\.'L. · 'JJa~hiy;.cn, G. C, 20UC2
Code 202 RE 7-1541 Code 202 547-75.;0
Apri 1 25, 1969
Mr. C. L. Dennis
Mr. H. C. Crotty
Mr. A. R. Lowry
Mr. C. J. Chamberlain
Mr. R. W. Smith
SUBJECT: Awards Nos. 51 through 60
Disputes Committee
February 7, 1965 Agreement
(Signalmen's Cases)
Dear Sirs and Brothers:
We met with Referee Zumas on April 21, 22 and 23 during which period we discussed
the last of the cases in the current Signalmen's docket and received his decisions on the
cases which he heard on February 5, b and 7.
I am enclosing herewith a copy of Awards Nos. 51 through 60, signed by Referee
Zumas, which are binding on all parties.
We believe that Award No. 51 as well as Award No. 52 do violence to the interpretations
which were agreed upon on November 24, 1965 and we will file a Dissent to that Award.
The Carrier Representatives and Mr. Rohman were so advised and copies will be furnished
you when they are completed.
Mr. Zumas is scheduled to meet with us' again on May 26, 27 and 28 to begin hearings
on another docket on Signalmen's Cases. You will be advised as these hearings progress.
Fratern ly yours,
t ~r
C ha' . ('
Five Coopers ing R ' way L~or Organizations
Award No. 51
Case No. SG-3-E
SPECIAL BOARD OF P.DJUSretENT N0. 605
PARTIES ) Brotherhood of Railroad Signalmen TO ) and DISPUTE ) New York Central Railroad Company (Lines West) QUESTION AT ISSUE: (1) Is D. A. Caruso a "protected" employe within the moaning and intent of Section 1 of Article I of the February 7, 1965
Agreement? (2) If so, should Carrier be required to compensate him from January 5, 1966, until it reinstates him to full employment? OPINION OF BOARD: Claimant entered service on December 2, 1955. During 1964 he had more than 15 days of compensated service. He worked on October 1, 1964. Based on the above the Organization contends that Claimant was a "protected" employee within the meaning and intent of Section 1 of Article I of the February 7, 1965 Agreement.
Carrier asserts that even though he worked on October 1,
1964, Claimant's status was that of a furloughed employee; and as
such, failed to qualify because he did not average 7 days of work
per month for each month furloughed.
Section 1 of Article I of the February 7, 1965 Agreement
provides:
"All employees, other than seasonal employees, who
were in active service as of October 1, 1964, or
who after October 1, 1964, and prior to the date of
this Agreement have been restored to active service,
and who had two years or more of employment relationship as of October 1, 1964, and had fifteen or more
days of compensated service during 1964, will be retained in service subject to compensation as hereinafter provided unless or until retired, discharged
for cause, or otherwise removed by natural attrition.
Any such employees who are on furlough aB of the date
of this Agreement will be returned to active service
before March 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, provided that no back pay will be due
to such employees by reason of this Agreement. For
the purpose of this Agreement, the term 'active service' is defined to include all employees working, or
Award
:,0.
~i
Case No. SC-3-3
_ _ 2 _
holding an assignment, or in the process of transferring from one assignment to another (whether or
not October 1, 1964 was a work day), all extra employees
on extra lists pursuant to agreements or practice who
are working or are available for calls for service and
are expected to respond when called, and cohere extra
boards are not maintained, furloughed employees who
respond to extra work when called, and have averaged
at least 7 days work for each month furloughed during
the year 1964."
An analysis of the language quoted above and the November 24, .
1965 Interpretations compels the conclusion the parties did not intend
to give a furloughed employee protected rights by virtue of the fact
that such employee happened to perform service on October 1, 1964.
AWARD
The answer to the question submitted is in the negative.
w ~-u~ c
Nicholas 11. umab,
Neutral Membe
Dated: Washington, D. C.
April 23, 1969
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COOPERATING RAILWAY LASu.~.1
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G. E. Leighty · Chairman John J. McNamara . Treasurer
Railway Labor Building · Suite 804 Filth Floor, VFW Building
400 First Street, N.W. · Washington, D. C. 20001 200 tvaryland Ave., N.E. . Washington, D. C. 20602
Code 202 RE -1541 Code 202 547-7540
May 23, 1969
Mr. C. L. Dennis /
Mr. H. C. Crotty,/
Mr. A. R. Lowry
Mr. C. J. Chamberlain
Mr. R. W. Smith
SUBJECT: Employees Dissent to Awards No. 51 and 52
(Case Nos. SG-3-E and SG-S-E)
Disputes Committee, February 7, 1965 Agreement
Dear Sirs and Brothers:
I am enclosing hereto our Dissent to Awards No. 51 and 52 (Cases No.
SG-3-E and SG-S-E) of Special Board Adjustment No. 605 established by the
February 7, 1965 Agreement which was signed by Referee Zumas on April
23, 1969. These decisions are so contrary to the Agreement and the Interpretations
that it is necessary to file these Dissents in order to protect our position,
The question at issue in these cases boils down to whether the claimants were in
"active service" on October I, 1954. Admittedly, they m:a the other requira'monts
for being "protected employees"--they were nonscasonai employees who; on
October I, 1964 had had more than two years of employment relationship and had
performed more,than fifteen days of compensated service in 1954.
What could be more "active service" than being actually
of
work an the regular
business of running the railroad for the full working day of October (, 1964? Baar
in mind that any question as to whether the employee's relationship to the railroad was
casual or fortuitous or coincidental was resolved by other tests. As'sc;., from being in
"active service" on October I, 1964, the employee in order to bo "protectc;:" under
the agreement had to have had on October I, 1964 two years of cmploymont relationship
and had to have performed at least fifteen days of compensated serv:co in 1934. Those
were the agreed-upon tests as to continuity of t~o association and ware in addition
to the requirement of active service on the critical data.
The parties, in the last sentence of Article I, Section f, defined "active service".
The first, and most obvious, way to be in "active service," the potties eyrccd, was
to be working. But they also agreed that an employee who did not actually wc-k on
October I might still be in active service: perhaps ha held an assignr;.--nt on which
October I was 'a rest day. Obviously, he had to be c0^Sid::iGd in ccrIva service if
he held an assignment or was in process of transferring from ono assI,0nMCnt to another,
but was not working either because the assignment was not scheduled to work or
because of the transfer, and the parties so agreed. Employees on extra "isi-s, cvc;:c.Dio
for calls and expected to respond, were also in "active service" as of October i, ;i,'-,4,
even though not actually working that day. Finally, it was agreed that whet_ Furlough
_ fists served the same purpose as extra lists, employees on such lists who were used for
this purpose should also be considered in "active service" on October i oven though not
working on that date.
This latter group, however, presented a problem. Mama employees on furlough
lists from which extra men were called from time to time might have discppcarcd,
taken other jobs, lost interest in railroad work or otherwise tcrminat~d their railroad
careers without the records reflecting it. If a parson hod not bean ccllsd for extra
service since his furlough, or not recently, theta was no way of knowing whether he
was holding himself in
readiness to respond to such a call. To eliminate people w~o had,
_2_
in practical effect, loft the railroad from being considered in "activasorvic;:," a
pragmatic and fairly arbitrary test was devised; an individual whose only claim to
being in active service was being on furlough was required to have averaged at
least seven days work for each month furloughed during the year 1954.
Now we ~ are presented with the incredible spectacle of a referee actually
holding that since the parties took pains to protect certain extra and furloughed
employees who were not working on October I, they thereby did these claimants who
wore actually working that day out of protection. Surely there could b: no such
holding if the definition of active service simply said, "For the purpose of this Agreement,
the term 'active service' is defined to include all employees working." Yet the
agreement says exactly this and more. But what is there in the "mono" that could
possibly be construed to diminish the rights
of
any employ;;e who was working? The
agreement says "all employees working," not some of them nor subject to exceptions
or qualifications
The Referee tells us only that an analysis
of
the Agreement end the November 24,
1965 Interpretations "compels the conclusion the parties did not intend to give a
furloughed employee protected rights by virtue of the fact that such ernipioyeo happened
to perform service on October I,'19o4." In those cases the Employee did not "happen"
to perform service on October I; he had the right and obligation to perform it through
having mot the requirements other than "active service" for being a "protected employee."
The reference to the November 24, 1965 Interpretations adds nothing. There is not
a word anywhere in the Interpretations, any mare than in the Agreement itself, that
even suggests a subtraction from the rights otherwise conferred on an employee who
was working on October I, 1964.
The simple and undeniable fact is that the authors of the Agreement and the
Interpretations used words that did not admit of the possibility that an employee could
be at work and at the same time on furlough on the same railroad in ti,o sum;: craft and
pursuant to the same seniority rights. To people with even an alarrantary knowledge
of railroad terms anfuso of wok's that would admit of such a possibility would be a
contradiction in terms.
Of course, the power to decide ~disputasconforr.:d by Article Vil of the
Agreement includes the power to make dacisicnswe think are wrung as will as
decisions we think are right. It does not, however, include power to rc,rak4:., the
agreement of the parties. We cannot help concluding that in these ceses the Referee
has substituted his notions of the terms the parties might logically have agreed upon for
those the parties did in fact agree upon.
Accordingly, we must regard the decisions of the Referee in these cases as beyond
the scope of the authority conferred upon him.