SPECIAL BOARD OF ADJUSTMENT NO. 605
PARTIES ) MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
TO THE ) and
DISPUTE ) TRANSPORTATION-COUMUNICATION EMPLOYEES UNION
QUESTION
AT ISSUE: Does a protected employee whose preser
vation of compensation is computed under
Article IV, Section 2 sacrifice any com
pensation for the reason that, to retain
his protected employee status, he bid in
a regular position when such became avail
able to him after December 24, 1965?
This dispute involves the preservation of
compensation due to J. F. Miles. (Carrier
File 2563)
OPINION
OF BOARD: This case concerns Carrier's failure to preserve the
compensation of J. F. Miles, an Agent-Telegrapher,
subsequent to January 18, 1967.
In 1965 Claimant was a protected employee on the extra
board whose compensation was preserved under Article IV, Section
2, of the February 7 Agreement. In 1966 he bid and obtained a
temporary position as Telegrapher-Leverman. Subsequently on four
occasions in 1966 Carrier agreed to the organization's request
for a waiver of Claimant's obligation to bid into an available
regular position, and he continued to fill the temporary Teleg
rapher-Leverman vacancy.
For example, in its letter of August 19, 1966, carrier
agreed to waive Claimant's obligation to bid a regular position
stating, in part:
1. Mr. Miles will be permitted to remain on
the position at South Tower, Muskogee,
W
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AWARD NO.
Case No. TCU-77-W
Oklahoma, in accordance with his rights
under the seniority rules, retaining his
protected status under the February 7,
1965 Agreement; this to continue only
until the next regular assignment on
which he can place himself through exercise of his seniority rights becomes
available to him...
3. Any future cases involving requests of
Telegraphers for waiver of the provisions
of the February 7, 1965 Agreement with
respect to their obligation to place themselves on permanent assignments to protect
their protected status will be handled on
their own merits...
In January, 1967, however, a regular position-of AgentTelegrapher at Welch, Oklahoma, was bulletined. Claimant bid
for and was assigned the position. The Welch assignment paid
a lower rate than the temporary vacancy which Claimant had been
filling.
According to Carrier, since Claimant voluntarily
exercised his seniority he was thereafter entitled to have his
compensation preserved only at the lower rate of the position
for which he bid. The Organization contends that Claimant was
required to bid a regular position when one became available
(absent the kind of mutually agreeable waiver which had been
made four times during 1966), or else he would have lost his
protected status.
Article II, Section 1, provides that an employee's
protection ceases if he fails to "obtain a position available
to him in the exercise of his seniority rights in accordance
with existing rules or agreements." Question and Answer No. 3,
on Page 9 of the Interpretations, state:
Question No. 3: What are the obligations of
extra employes with respect to obtaining
or retaining a position in order to remain
a "protected employe"?
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AWARD NO.
Case No. TCU-77-W
Answer to Question No. 3: If an extra
employe fails to obtain a position other
than a temporary position available to
him in the exercise of his seniority
rights in accordance with the existing
rules or agreements, he will lose his
protected status. It should be understood, however, that this does not prohibit the making of local agreements which
will permit an employe to remain an extra
employe if there is a mutual understanding
that this action may be justified.
The Agreement imposes on extra employees the obligation
to "obtain a position other than a temporary position." The
alternative is loss of protected status. An employee faced
with a choice of losing his protected status or placing a bid
cannot be described as engaging in a voluntary exercise of seniority. His action is non-volitional. Carrier no doubt would
be quick to discern the consequences of an extra employee's
failure to place a bid on a regular position. Indeed Carrier's
letter of August 19, 1966, warned that such employees must
"place themselves on permanent assignments to protect their
protected status."
No ambiguity can be found in Article II, Section 1,
or in Question and Answer No. 3 on Page 9 of the Interpretations.
Since the employee must bid to retain his protection, his bid is
mandatory and cannot be construed to be a voluntary exercise of
seniority. This obligation is unaffected by whether the rate
of the regular position is higher or lower than the employee's
earnings from the extra board or from the temporary position
that he occupies.
Nothing in the Agreement indicates that an employee
can lose his guaranteed compensation as a result of such an
action. No nrovision of the Agreement suggests that an employee
who has complied with it may have his status changed so that his
compensation is preserved under Article IV, Section 1, instead
of Section 2. Conversely, if the regular position which an
extra employee obtains pays a higher rate than his preserved
compensation, no change is made in the future method of computing
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AWARD NO.
Case No. TCU-77-W
his guarantee; he continues to be protected in accordance with
Article IV, Section 2.
Award No. 13 is not in point, since that dealt with
a voluntary exercise of seniority, whereas in the instant case
the Agreement required Claimant to bid in order to retain the
protection it had afforded him.
Award No. 233 is also not analogous. In that case
Claimant, who was protected under Article IV, Section 2, bid
into a regular position while maintaining his Section 2 protected compensation. Subsequently, he voluntarily bid into
a lower-rated position and, pursuant to Article IV, Section 3,
then no longer "was entitled to have his compensation preserved
as provided in Sections 1 and 2." But that extra employee's
original bid into a regular position, paying a lower rate than
his Section 2 guarantee, had not caused a forfeiture of the
guarantee, as Carrier here asserts should occur.
A W A R D
The answer to the Question is No.
Milton Friedman
Neutral Member
Dated: Washington, D. C.
March
17,
1972
Interpretation of
AWARD
NO. 288
Case
No. TCU-77-W
SPECIAL BOARD OF ADJUSTMENT
NO. 605
PARTIES ) Missouri-Kansas-Texas Railroad Company
TO TIC ) and
DISPUTE ) Transportation-Communication Employes Union
QUESTION
AT ISSUE: Does a protected employe whose preser
-ation of compensation is computed under
Article IV, Section
2
sacrifice any com
pensation for the reason that, to retain
his protected employe status, he bid in
a regular position when such became avail
able to him after December
24,
1-965?
OPINION
OF BOARD: This is a request for an "Interpretation," the organi
zation claiming that Award
No.
288
intended to direct
monetary relief for Claimant when the above Question
was answered in the negative. Carrier contends that the Com
mittee answered only the Question as submitted, and alleges
that there is an unresolved dispute over matters involving the
claim for compensation which was never raised or dealt with by
this Committee in Award
No. 288.
Carrier challenges the timeliness of money claims submitted by Claimant, a matter which had never been adjudicated.
The issue may be real or specious, but the subject never had
been considered by the Committee--as would have occurred if
there had been a request that Claimant be made whole.
Instead, the Committee dealt only with the Question
submitted to it, all that it has a right to do under Article
VII, Section 3, of the February
7
Agreement which states, in
part:
Interpretation of
AWARD
No. 288
Case
No. TCU-77-W
..The notice provided for in this Section 3 shall state specifically the
questions to be submitted to the committee for decision; and the committee
shall confine itself strictly to decisions as to the questions so specifically
submitted to it.
Article I, Section D, of the "Procedures for Handling
Disputes under Article VII," similarly states that the committee
"shall confine itself strictly to decisions on the questions
submitted." In accordance with a series of Awards ( mending
back to Award
No.
9, the Committee has often so held Thus,
a Question submitted is answered directly and, unless ;:he
Answer itself is unclear, the Committee's authority o
it
the
issue has ended. It is functus officio for all purpo~ s. In
the instant case the Question sought an interpretation, which
was given.
In the Committee's recent deliberations the question
was asked: Did the Committee intend that the employee should
be paid whatever wds due him, rather than just to rule on an vow
academic question?
No
doubt the Committee assumed that an
employee would receive what was due him. But the Committee
intended to answer only the question put to it, in accordance
with the Agreement and Procedures under it.
So far as the Committee was aware, all claims could
have been filed properly, or just some of them, they could have
been handled without any disagreement on procedure, or held in
abeyance by agreement. The parties might have mutually agreed
on a course of action to be followed once the Award was issued.
The Committee, however, decided no other issue besides the
particular Question submitted to it, since nothing else was
before the Committee.
Under the Agreement, matters arising out of or related
to a submitted Question must be separately dealt with if they
are to be enforcible as a Committee decision. Award No. 63
indicates that a submitted Question, restricted to an interpretation of the February
7
Agreement, does not automatically
embrace a remedy for compensation lost. Each claim must be
submitted in such a way that any dispute which it is designed
to embrace is finally and definitively resolved by the Answer.
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Interpretation of
AWARD NO. 288
Case
No. TCU-77-W
The Committee cannot now supplement its decision by
directing monetary payments, where it never heard the substance of the issue. In effect, it would be making a new
award under the guise of interpreting what was a final, complete and definitive award. This is beyond its power. So
long as the Question posed to the Committee was answered
directly, without any ambiguity, the Committee can have
nothing before it to interpret.
AWARD
The Question submitted to the Committee
original:y has been answered without
ambiguity, and the committee lacks jurisdiction to consider other, even related,
Questions.
Milton Fribdman
Neutral Member
Dated: Washington, D. C.
March
22, 1974
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