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G. E. Leighty · Chairman John J. Mcrlamm > Treasurer
 Railway Labor Building · Suite 804 Fifth Floor, VFW Building
 400 First Street, N.W. . Washington, D. C. 20001 200 Maryland Ave., N.E. o Washington, D. C. 20002
 Code 202 RE -1541 Code 202 547-7540

Mr. C. L. I)cririis
 Mr. Ii. C. Cro~ttty
 1Vir. /\. R, l.owry
 Mr.' C. J. Chamberlain
 Mr. R. W. Smith

                      SUBJECT: Disputes Committee ;505

                      Awards 1/149 through 154

                      (Signalmen Casc:s)


Dear Sirs and Brothers:

 I am enclosing herewith copies of Awards #149 through 154 .signed by Referee Zumas on November 12, 1969. We reserve the right to dissent on Award #152 and may write a dissent in connection with that Award because it attempts to interpret the Schedule Agreement rather than the February 7, 1965 Agreement.

                                Fraterna ly yours,


                                Chai I an, Five Cooperating Rlway~l

                                                abor Organiratioi


cc: L. P. Schoene
 Frank T. Lynch

 wed-m~<.
                                        As;ard :70. 1r:9 C&,

                                          ;e r;e. s~-i=~-


                SPCI AL Bo!,mD OF ADJUSTMENT No. 605


PA;;TIES ) Brotherhood of Railroad Signalmen
 T17 )
 and
 DISME ) Baltimore and Ohio Railroad Company
 QULSTIO?S
 AT ISSUE: Dial Carrier violate and does it continue to violate
 the February 7, 1965 M=ediation Agreen;ent inasmuch a.
 Mr. C. 0. Fowble, Assistant Signalman, was furloughed
 on March 15, 1965?
 Should :ir. Fowble now be recalled to service?
 Should Mr. Fowble now be allowed eight (S) hours' pay
 at his applicable rate for each day commencing 1-.arch 16, 1965,
 and continuing so long as this violation exists?"

 OPTIQION
 OF BOARD: The facts are not in dispute. Clainaant held a i-iay g, 1943
 date as a Signalrian/Signal Maintainer. In May 1957, while
 working as a Signal Maintainer, Claimant became disabled
 because of a heart condition. Later that year ha was permitted
 to resume work as a Signal Maintainer on a restricted basis (primarily because,
 as Carrier contends, there were two Signal Maintainers in adjoining districts
 to help him). In October, 1959, due to a reorganization of Si.,::al forces, the
 two adjacent Signal Maintainers were not available to assist Claim,nt. Because
 of this and the fact that Claimant's physical condition remained unchanged, he
 was allowed to obtain a position as Assistant Signalman in a gang. 1,e held the
 position of Assistant Signalman on October 1, 1964. and hence qualified as a
 protected eriploye under the February 7 Agreement.

 On March 16, 1965 Claimant's position as Assistant Signalraan was abolished due to a force reduction. Despite Claimant's seniority, there were no positions available because of his physical restriction. On i1ay 25, 1965 he returned to work as an Assistant Signal Maintainer when the Signal force was again increased. The claim in this dispute covers the period from ?:arch 16, 1965 to May 25, 1965.

 Carrier, in denying the claim, takes the position that before Claimant can continue to be "protected" he must have the capacity to exercise seniority; and Carrier is not required to maintain positions in order to continue protected benefits where an employe is unable to ehercise seniority due to disability. Since Claimant's loss of time between march 16, 1965 and t:ay 25, 1965 was due solely to his physical disability under Article IV, Section 5, of the February 7 Agreement, Carrier concludes that there is no basis for the claim.
 . !'.~·a;~l 120. 7 l'i

 ' car;c i:o, ,<,G_j~l_y._ -

 The Organization's rejoinder to Carrier's position is taken from its Submission:

            "Carrier relies on f:rticlc IV, Scction 5; l:oW:~ver, it can readily be seen this rule has no applicati-or; in the instant situation. It provides, 'A protccted crxnloye shall not be entitled to the benefits of. this Article during any period in which he fails to work


            due to Carrier's

                  disability.'


            "T. . ~.:-;;i

              mis situation was brought about by

            trarily taking Mr. Fo;able out of service; it wc,s caused by his failure to work. 112 was ready, willin;, and able to work; Carrier denied him the riglxt to do so. It cannot, therefore, rely on Article IV, Section S in support of its actions." (Underscoring included.)


As we interpret the February 7 Agreement, C1ain:ant is not deprived of his protected status because his physical lir:dtaLions prevent him from obtaining,anothar position in the ererci-s_ of seniority. Ye was apparently qualified at all ti-:es to hold the position of Assistant Signalrnan despite all physical itcpedii::ant. Stated another way, his heart condition did not prevent him from maintaining the position of Assistant Signalman, his protected position as of October 1, 1954; he was prevented front maintaining that position because it was abolished by Carrier. This rationale is consistent with that in Ac,=and 'No. 136 of this hoard which stated:

            "Claimant's failure to work as a watchman certainly was not due to his physical condition, but to a reduction in force."


Award No. 136 further held that physical incapacity to perform the work of another position is not grounds for loss of protected status or of compensation. due protected employes. While thane were separate contracts with the Carrier in that dispute, the effect is the sans.
 C^:;:. :.:o. ;:G-11-I-_

              p.,t PD


i. The answ.-r to question (a) is in tt:c c~f~ir,_.ti:~.

    2. Tine answer to question (b) is root since C1ai:..~nt toss recalled to servicc on Xay 25, 1965.


3. The answer to question (c) is in the affirmative.

          llV ~ir~~ ~;~., L(~,~~·7i.; r!,j~i

            Nicholas 1:, 2ul 7 1 ~~s

            Neutral Me mber


_Dated: Washin;ton, D. C.
      November 12, 1969