PARTIES ) Duluth Missabe and Iron Range Railway Company
 TO THE ) and
 DISPUTE ) Transportation-Communication Employees Union

 QUESTION
 AT ISSUE: Are employees who have seniority in a
 craft or class, and perform service in
 from nine to twelve months each calendar
 year protected employees within the meaning
 of Article I, Section 1 and thus entitled
 to preservation of compensation as provided
 in Article IV, Section 2?
 OPINION
 OF BOARD: Most of Carrier's business is transportation of iron
 ore from mines and processing plants in Northern Minne
 sota to Great Lakes docks. Ice conditions on the Great
 Lakes shut down such operations between December and March of
 each year; Carrier indicates that its "season" usually is from
 April through November.

 The parties agree that this is a seasonal business. They agree that there are seasonal telegrapher positions. They disagree over whether Claimants are "seasonal employees," within the meaning of Article I, Section 2.

 According to the organization, some of the employees involved often work virtually a full year, but in any case they simply return to the extra list at the end of the ore shipping season and therefore, even though they are not called for work or are little used, they cannot be considered seasonal employees. Under the circumstances, the Organization contends, they must receive their guaranteed compensation on a year-round basis.

 Carrier contends that the employees in question are, in fact, seasonal and meet the test of seasonal employees. It appears that many employees did not work at all during several of the winter months and some who worked occasionally limited their activities, apparently with Carrier's acquiescence.
                                    Case No. TCU-56-W


The organization states that where employees are shown to have declined work, no compensation would be due. It seeks to define a seasonal employee in terms of its schedule agreement. However, under the February 7 Agreement a seasonal employee is defined by the answer to Question No. 1 tin Page 5 of the November 24 Interpretations. For the purposes of the February 7 Agreement, the Interpretations' definition is binding. It states:

            An employe is a "seasonal employe" within the meaning of this section if his employment during the years 1962, 1963 and 1964 followed a pattern of layoffs for seasonal reasons.


The test is a factual one, not an academic one. Whether an employee is or is not seasonal is determinable by looking at his employment record in these three consecutive years. To do so the records of the 11 employees in question must be evaluated on an individual basis.

 The organization's approach would give year-round compensation to employees who apparently never receive more than eight or nine months of work because of the nature of the business. The purpose of the February 7 Agreement is to protect employees' compensation and leave them whole, regardless of subsequent events which would otherwise place them in a worse posit=on. It was not designed to provide a windfall to employees by giving them more than they normally earned. If the organization's view were implemented, monthly income in December, January, February and March would go to employees who either never had any work in those months or had only a few scattered days of work.

 The amount of time which employees worked during those four winter months for the three combined years of 19621964 is shown in the following table:

                        -2-

                                    AWARD NO. &Z 7l/

                                    Case No. TCU-56-W


                      December-March Average Days

                      1962-1964 Worked Per

        Employee Total Days Worked Winter Month


Bebee 28 2
 Olson 53 4
 D. W. Carlson 0 0
 Hussey 26 2
 Bradt 221 18
 L. C. Carlson 31 3
 Peterson 143 12
 Johnson 9 1
 Anderson 30 3
 Ronkainen 149 12
 Stroschaen (deceased) 108 9

        Source: Derived from Carrier's Exhibit B (11 pages).


Three employees worked the majority of the days during the winter months. They cannot be classified as seasonal employees. The others worked rarely and infrequently, with the possible exception of Mr. Stroschaen, who averaged nine days a month during the test years, but the bulk of his work was only in December of each year. Their work was so limited in the test years that their pattern of employment was plainly seasonal. Some of them who are shown in the above table to average a few

                          -3-

                                    AWARD No. -x7

                                    Case No. TCU-56-W


days per winter month, like Anderson and Johnr.on,worked not a single day from January through March during the three years.

 Even the three who worked with considerable regularity were described by Carrier as refusing or not desiring to work the "south end." However, Carrier's acceptance of this situation does not detract from the non-seasonal character of their employment, if the employees nevertheless average two or three weeks a month during the winter months as did these men. Their mutually acceptable limitations on certain work cannot be construed as transforming them from regular employees into seasonal employees.

 Consequently Mr. Bradt, Mr. Peterson and Mr. Ronkainen are protected as regular employees, but in view of Carrier's unchallenged statement that they limited their availability, compensation is not due them when they failed to take available south end work. The others are protected as seasonal employees.

                        A W A R D


              The three Claimants who performed substantial service during the entire years 1962-1964--Bradt, Peterson, Ronkainen--are protected under Article I, Section 1, and entitled to preservation of compensation under Article IV, Section 2. The others, who are seasonal employees, are entitled solely to the benefits of Article I, Section 2.


                          Milton Fr iedman

                          Neutral Member


Dated:
        Washington, D. C.


        November 16, 1971 -4-