p
\- s
AWARD NO.
a
LID
Case No. MW-12-E
SPECIAL BOARD OF ADJUSTMENT NO. 605
PARTIES ) Erie Lackawanna Railway Company
TO THE ) and
DISPUTE ) Brotherhood of Maintenance of Way Employes
QUESTION
AT ISSUE: Are Crossing Watchmen W. P. McCormick,
J. R. Forgie, G. J. Logan, W. B. Bittles
and Herbert Harrington entitled to reim
bursement for the loss of earnings suf
fered during 1966 as a result of their
furloughs in February or March, 1966?
OPINION
OF BOARD: These claims of five Crossing Watchmen are for 1966.
With respect to Claimants Forgie and McCormick, Carrier
alleges that their protected status was lost as a result
of their failure to accept offers of employment in 1967 What
occurred in 1967 cannot determine-whether or not employAep are
entitled to compensation as protected employees in 1966., The
Forgie and McCormick claims accordingly must be sustained.
Carrier maintains that each of the other Claimants
declined offers of work as Trackmen in 1966 and therefore, pursuant to Article II of the February 7, 1965, Agreement, ceased
to be protected employees.
Claimant Logan swore on September 2, 1969, that while
he "could not have qualified for track work had it been offered...
to the best of my knowledge, I have never been requested to take
track work nor have I ever received any notification to this
effect..." Claimant Bittles swore on September 3, 1969 that he
"did not, at any time, refuse work as a trackman, after being
furloughed as a crossing watchman."
AWARD NO.
a
yZ~
Case No. MW-12-E
The then Assistant Chief Clerk in the Division Engineer's Office, Youngstown, Ohio, swore on April 8, 1970 that he
had contacted Claimant Logan by telephone "on or about September 27, 1966, and asked him if he would accept work as a Trackman. Mr. Logan advised ;hat he did not desire such work." A
similar affidavit was dated April 9, 1970 concerning Mr. Bittles,
who allegedly declined "due to his age
(62) and
not being
accus
tomed to such 5,=ork.," I-Phesa a=ffidavits are the reasons given by
Carrier that the protected status of the. two Claimants was lost.
ObJectide evidence supporting the C;==ier's conten
tion that Mr. Bittlvs and Mr. Loges. ~clirwd ?'YCrh as Trackmen
is 3 -t.k rig, mild
there
is no h-'a_vi
3
for
giving
g;.':^-z.-.ar credence
to either
-~Ct
o-the conflict-ire afftdavitd.
T5nn
burden rests
with
USG
Ctxris_° '::o sst-,f:A.:Lzh
the
Of-c-_C
and
1C
a_~
refusal o¢ an
ausjCjr. ":~-,:>t.:
ai?a
that
hll:we.an h--S
Slot
b=en Se?u'i.-'..i ~Wd.
l_`qere
_j-_ no
,^0??'.ssput^ %hat
.`3,
lettor
t9=.5
written to
Ciai~,an'c i.r;.ng·..dn on -gust 9, 1966, which stated, as fol leas:
DL-e^
to elimin-n>,-ttiola of crossings, your
fC~ -::~?
?D`; it
'L oa
1.
crossing watCi nan was
abolished.
We have positions open as trac%men at
Leavittsourg, Ohio,, and
Greenville,
Pennsylvania. Will you please advise
if you are interested in any of t'lisse
positions so that: necessary arrangements can be made.
The General Chairman replied to that letter on
August 31, advising that not only was Mr. Harrington unable to
do.Trackman's work, but an implementing agreement would be
required for such an
assignment.
Article II, Section 3 requires a protected employee
to accept temporary assignments which do not require crossing
craft lines. Section 2 requires him "to accept employment in
-2-
AWARD NO.
zoo
his craft offered to him by the carrier in any seniority district ...as provided in implementing agreements..." Was the
letter of August 9, 1966, a request that Claimant Harrington
take a temporary assignment, or was it advice to him that
permanent Trac?:man position: E.°'-re available for which there
must be an implementing agreement? The General Chairman's
reply indicated that he regardsd
it
as a permanent assignment
requiring an implementing agreement. Carrier did not respond
that the offer was for a temporary assignment. In any event,
its letter was
SO
c5:l:.gn'aous on
'::h.'. Subject that it cannot
he
coastruad as
G
direction to t~a,re a temporary assignment pursuant to Article i'l, Section 3,
which C
laal:lant declined.
Fine l ly, Carr:ws_- sta'_ed th='.
L
T f'ackS;iar
S'iOY}s :':-i3
aV`'ilc!ble 19606 for all
Clallll-_--~Aitp.
as
e:vi,;jt~':','.~°d
~i7
G..
th-e
nLTt~r
of perin~nenY
I°·2?a'
emp'Cyaa·'s -h') i.'..-~ hired. F's,.-.~-
Pnd
.'_1rossj.,k4 t
Only
SGeniC.city
route"a ~i:Y
LSleV .°-'_.'F.
covered by repa-_-ate
·-®~,i:<'.a~e~.:v...~'...
The
fact thaat TraC-:mcan
?:'._.r... :1~.'t_"°!a
doe=
n?3''.
mean. that C1oiman~S
auta>E:aticully lost their`protecied sts,~us. urles,~ it was lay
virtue of %h^ Cp^retion of- k,'s't2.cla
_ia
daactivn ), whiC.:h
p_9
vide9 !''.Pat
employnaaas
:-,,-_,,·J.·,c,~ t0 ~ Pr"3dDctZ_sd
only 2.'F thoy 't'.-aa:.1.C,
to retain
or
cbtain a pa-ition available in tile exercise of
their "seniority rights." Because the rules enable man,g:;u:enL
to fill Trackman vacancies with furloughec employees from ether
departments dces not ia!pose an obligation on Crodaing !'iate'>·s:en
t0
seek out th: vacan-^_l°_s on such oth·^r rosters, or
el=9
lose
protected status. Carrier may rake temporary
asci.grL~yn'~s of
CroS-:.ng Tlatchr:?en
t0
Track=:en's vacancies, and
ttle-Y3
unjuOtifieG
refusal to accept the assignments wou7.d cause loss of protected
status, in accordance wi;h Award No. 66.
Consequently, the other three claims also must he
upheld.
A W A R D
The answer to the Question is Yes.
Milton Fridd man
Neutral Member
May ~ , 19-It
Washington,
D. C.
-3-