SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Express and Station Employees
DISPUTE ) and
Atchison, Topeka and Santa Fe Railway Company
QUESTION
AT ISSUE: Did Vera F. Hackelman cease to be a protected employe
under the terms of Article II, Section 2 of the February 7,
1965 Mediation Agreement No. A-7128, when under the terms
of an Implementing Agreement dated July 25, 1969, made
pursuant to Article III of the February 7, 1965 Agreement,
she elected to exercise her seniority to a position held
by a junior employe in her seniority district rather than
transfer to a position at Argentine, Kansas and/or Amarillo,
Texas or resign and accept a separation allowance?
OPINION
OF BOARD: On July 25, 1969, the parties executed an Implementing
Agreement providing for the discontinuance of Centralized
Accounting Bureaus at a number of locations and to transfer
certain other accounting functions to different locations.
Section 3 of the Implementing Agreement, states as follows:
The protected employes referred to in Section 1
hereof, are hereby requested by the Carrier to
transfer under this implementing agreement to
Kansas City (Argentine), Kansas and Amarillo,
Texas effective September 1, 1969 except those
protected employes at Chicago (Corwith), Illinois
who will transfer October 1, 1969. The protected
employes herein involved shall notify their
respective agents at Wichita, Fort Worth and
Corwith in writing, in duplicate, which must be
received by no later than 5:00 p.m. August 11, 1969
5:00 p.m. September 2, 1969 for employes at
Corwith) of their election to:
(1) Transfer to Kansas City (Argentine), Kansas
or Amarillo, Texas respectively.
(2) Exercise seniority to a position held by a
junior employe in their respective station seniority
districts.
(3) Resign and accept the separation allowance,
if qualified therefor, under provisions of Article V
of Mediation Agreement No. A-7128.
Carrier will furnish a copy of each employe's
election to the Vice General Chairman of the
Organization, and it is understood such election
shall become effective at the close of work
August 31, 1969 (September 30, 1969 for employes
at Corwith).
The parties are in agreement that during the negotiations
they failed to resolve their dispute as to whether a qualified protected
employee who was requested by the Carrier to transfer, would lose his
protected status if he exercised seniority on a position held by a junior
employee in his seniority district and did not transfer as requested. The
Carrier concedes that, "(A)lthough the parties adopted opposite positions
on this point in their discussions, the Implementing Agreement was nevertheless
signed by both parties calling for identified employes who were to be requested by the Carrier to transfer to the new work locations."
On this point, we would merely voice our misgivings as to the
efficacy of such negotiations. Thus, it is evident that the parties were
loathe to come to grips with their disagreement and, instead, preferred to
cast the burden upon some other forum. In view of their awareness of contrary
positions, the matter should have been resolved at the time of negotiations
leading to the execution of the Implementing Agreement.
Nevertheless, the issue before us is whether the Claimant
and eight other employees lost their protected status when they exercised
their seniority under option No. 2 of Section 3, of the Implementing Agreement,
instead of transferring as requested by the Carrier?
Involved herein is Section 2 of Article II, of the
February 7, 1965 National Agreement, hereinafter quoted:
An employee shall cease to be a protected employee
in the event of his failure to accept employment in
his craft offered to him by the carrier in any
seniority district or on any seniority roster
throughout the carrier's railroad system as provided in implementing agreements made pursuant to
Article III hereof,---."
Under Section 3 of the Implementing Agreement, three options
were granted the affected employees. Option No. 1, transfer to Kansas City
(Argentine), Kansas or Amarillo, Texas respectively; Option No. 2, exercise
seniority to a position held by a junior employee in their respective station
seniority district; Option No. 3, resign and accept a separation allowance,
if qualified. Thus, we need to examine the organization's argument, whether
an affected employee who was specifically requested to transfer under the
Implementing Agreement, could then be penalized if Option No. 2 was elected,
rather then transfer.
Unquestionably, the Implementing Agreement granted three
options to the affected employees. Thus, the choice was the employees'.
However, were these options in the Implementing Agreement negotiated in a
vacuum or within the context of the February 7, 1965 National Agreement?
Article III, Section 1, of the February 7, 1965 Agreement, mandates the
Organization to enter into an Implementing Agreement for transfer of
employees throughout the system. Further, Article II, Section 2, of the
February 7, 1965 Agreement, provides that a protected employee shall lose
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such protection,"---failure to accept employment--offered to him by the
Carrier--on any seniority roster throughout the carrier's railroad system
as provided in implementing agreements made pursuant to Article III---."
We are cognizant of the Organization's contention that the Implementing
Agreement offered three options and omitted any mention of a specific
penalty. It also argues that the affected employees fully complied with
the provisions of the Implementing Agreement by selecting a choice which
was proffered.
In addition, concurrent with the execution of the Implementing
Agreement on July 25, 1969, a Letter of Understanding was signed, which
provided that in the event positions remained unfilled, such vacant positions
would be offered to qualified employees on the respective Division Station
Employees' seniority districts to which the unfilled positions were allocated.
At the outset, we frankly admit that the
instant dispute
has caused us great concern. We are requested to interpret an Implementing
Agreement which at the time of execution, the parties knew they disagreed
as to certain aspects. This invites disputes and makes a mockery of
collective bargaining. Nonetheless, we shall apply ourselves to the task.
In this posture, was it the intent of this Implementing
Agreement merely to grant the affected employees a choice of options? Or,
was it the intent of the Implementing Agreement to protect the affected
employees from the penalty contained in Article II, Section 2, of the
February 7, 1965 National Agreement? In order to overcome this apparent
loophole, the Carrier persisted by contacting each affected employee and
alerting them to the consequences. Again, we ask, does this cure the
problem? Admittedly, without the Implementing Agreement granting the
affected employees a choice of options, Article II, Section 2, of the
February 7, 1965 Agreement, would be the controlling document. Thereafter,
having granted the options to the employees, without including any penalty
proviso or reference to Article II, Section 2 therein, can it truly be said
that the Carrier is justified in revoking the protection to the nine employees
who elected option No. 2?
Although it may not be evident, we have sought to resolve the
instant dispute in a judicious manner. However, no matter how hard we strive,
we cannot escape the fact that the Implementing Agreement granted the affected
employees a choice of options. Nowhere within that document is there contained a penalty in the event option No. 2 was elected. It is, therefore,
our view that these nine employees having made their election under the
Implementing Agreement, are entitled to have their protection continued.
AWARD:
The answer to the Question At Issue is in the negative.
Murr M. Rohman
Neut 1 Member
Dated: Washington, D.C.
July 24, 1970