WILLIAM 11. DI:\IPSEV. Chamnan 11. E. PARKS, Vice Chairman W. S. \tACGILL. Assistant to Chairman
 , JADIFS A. WILCOX, General Couo,el I1. E. GRELIZ, 1>irector of Rtscarch J, F. Cai1FFIN. Administrative Secretatl






















                                I\ 7 i


                              i


      cc: Messrs.

      G. E. Leighty (10)

      C. L. Dennis (2)

      C. J. Chamberlain (2)

      M. B. Frye

      Crotty

      H Berta

      S. Z. Placksin (2)

      R. Sd. Smith

      T. A. Tracy (3)

      W. S. Macgill

      M. E. Parks

      J. E. Carlisle

      W. F. Euker

      T. F. Strunck


                                                  4

                                                  Award No. 292

                                                  Case No. CL-51-E


                    SPECIAL BOARD OF ADJUSTMENT N0. 605


      PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,

      TO ) Freight Handlers, Express and Station Employes

      DISPUTE) and

      Central Railroad Company of New Jersey

      QUESTIONS

      AT ISSUE: 1. Did the Carrier violate the provisions of the February 7,

      1965 Agreement, particularly Article Iv thereof, when it

      refused to compensate Mr. A. Brown for the month of Janu

      ary 1971?

      2. Shall the Carrier be required to compensate Mr. A. Brown

      for the month of January 1971 in accordance with the

      terms of the February 7, 1965 Agreement?

      3. Shall Carrier be required to compensate Mr. A. Brown

      for the month of January 1971, based on Carrier's failure

      to handle in accordance with existing time limit rules?


      OPINION

      OF BOARD: On October 1, 1964, Claimant was a regularly assigned em

      ployee, therefore, he qualified as a protected employee

      pursuant to Article I, section 1, of the February 7, 1965

      National Agreement. Subsequently, upon abolishment of his

      position on December 8, 1970, and lacking seniority rights to enable him

      to obtain a regular position, Claimant filed Form "G", denoting his desire

      to be called for extra work. At the time that Claimant submitted Form "G",

      he also furnished his telephone number. Thereafter, in January, 1971, Claim

      ant filed Form JCP--1--claim for compensation for the month of December,

      1970--which was paid. In February, another claim was filed for the month

      of January, 1971, which was not paid and is the basis for the instant dispute.


_ Carrier defends its failure to allow the January claim
      predicated upon the discontinuance of the claimant's telephone. It supports

      such disallowance of the guaranteed compensation by relying upon a "tele

      phone agreement" executed on December 28, 1966; and subsequently revised on

      March 12, 1968. The substance of these agreements provide that protected

      furloughed employees will furnish their telephone number where they are to

      be called for extra work. Thus, the Carrier contends that a failure to fur

      nish "their telephone number" will deprive protected furloughed employees

      the compensation due them under the terms of Article Iv of the February 7,

      1965 Agreement; and more importantly, such an employee will forever there

      after forfeit his protected status.


      The Questions-At-Issue as framed in the submissions present two basic issues--namely, did Carrier violate Article Iv when it refused to compensate Claimant for the month of January, 1971; and secondly, an alleged violation of the time limit rules.,

                        Award No. 292

                        Case No. CL-51-E

                        _ 2 _


Insofar as the alleged time limit rule violation is concerned, our careful reading of the submissions prepared by both parties indicate a complete absence of such contention ever having been raised on the property. Thus, the first instance when such allegation was raised is in the submissions to our Board. Under these circumstances, we would refer the parties to NDC Decisions 3, 5, 10 and 17--which provide that a "failure to raise that question on the property" bars its consideration.

 Is a failure to provide their telephone number equivalent to a voluntary absence by the protected furloughed employee? Prior to answering the question we have posed, it is essential that we place in proper perspective the Carrier's arguments. It contends that a protected furloughed employee who fails to furnish "their" telephone number will forfeit his protected status--not only for a particular month--but permanently.

 We have previously analyzed the provisions of Article II, Section 1, of the February 7, 1965 Agreement, and especially that portion, viz:

              An employee shall cease to be a protected employee in case of his

              A protected furloughed employee who fails to respond to extra work when called shall cease to be a protected employee.


our cited decisions have uniformly held that where there has been a consistent pattern of declining calls for extra works the furloughed employee will be deemed to have forfeited his protection. However, we would emphasize that this resulted from a refusal to respond when called. We repeat, when called! In this context, the Carrier concedes that Claimant was not called due to his failure to furnish a telephone number, although he had submitted an address.

 We are also mindful of the fact that the telephone agreements executed by the General Chairman and the Carrier were signed on December 28, 1966 and March 12, 1968--long before Claimant was furloughed. What knowledge did he have of those provisions? We have searched the record for some evidence of notice to Claimant informing him of the necessity to furnish a telephone number. The minimal requirement we would expect in order to condone the severe result contemplated by Carrier, is a letter notifying Claimant of the Carrier's intent, in order to alert him to the consequences.

 Hence, in this posture, we revert to the "Questions at Issue" contained in the Ex Parte submissions of the parties. The Carrier has not posed a different set of Questions at issue than those contained in the organization's submission. Despite the fact that the Carrier now argues on the basis of Article II, for a permanent forfeiture of protection, nevertheless, the issue before us is predicated only upon an alleged violation of Article iv--a failure to compensate claimant for the month of January, 1971.

 Unquestionably, an employee who fails to furnish a telephone number cannot respond to a call. Of the two innocent parties who shall bear the brunt? In this instance, the employee is not blameless inasmuch as he precipitated the problem by having his telephone discontinued. It is, therefore, our considered judgment that Claimant failed to meet his obligations for the month of January, 1971.
                        Award No.292

                        Case No. CL-51-E

                        - 3 -


                        AWARD


The answer to the precise questions submitted in (1) and (2) pursuant to Article IV, is in the negative.

            Question (3) is answered in the negative.


                    Mdrray M. ohman

                    ,.'Neutral Member


                  v


Dated: Washington, D. C.
 March 27, 1972
 H. C. GROTTY B. L. SORAH, JR,
 PRESIDENT SECRETARY-TREASURER
      BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES


                      AFFILIATED WITH THE A. F. L.-C.I.O. AND C.L.C.


                          GRAND LODGE


                    72050 WOODWARD AVE.. DETROIT. MICHIGAN 48209

                          OFFICE OF

                          PRESIDENT

                          79

                          FILE SBA

                          May 5, 1972 Awards 292, 294

                          CL-51-E, CL-86-W


Mr. J. J. Berta
 704-06 Consumers Building
 220 South State Street
 Chicago, Illinois 60604
 Dear Sir and Brother:
 For your information I enclose a copy of Dissent of Labor Members to Award No. 292 and Award No. 294, which were rendered by Referee Rohman.

          With best wishes, I am


                        Sincerely and fraternally yours,


                            -Ht C &e6


                                President 17


Enclosures

 c cu ID

    J

                            DISSENT OF LABOR MEMBERS T0:

                                                Award No. 292

                                                Case No. CL-51-E


                  SPECIAL BOARD OF ADJUSTMENT NO. 605


PARTIES )
 TO ) Brotherhood of Railway, Airline and Steamship Clerks,
 DISPUTE ) Freight Handlers, Express and Station Employes
 and
 Central Railroad Company of New Jersey
 QUESTIONS
 AT ISSUE: 1. Did the Carrier violate the provisions of the February 7,
 1965 Agreement, particularly Article IV thereof, when it
 refused to compensate Mr. A. Brown for the month of Janu
 ary 1971?
 2. Shall the Carrier be required to compensate Mr. A. Brown
 for the month of January 1971 in accordance with the
 terms of the February 7, 1965 Aareement?
 3. Shall Carrier be required to compensate Mr. A. Brown
 for the month of January 1971, based on Carrier's failure
 to handle in accordance with existing time limit rules?

 The Referee makes a negative response to all three questions for reasons which we cannot understand. We dissent vigorously from this award.

        1. There is nothing in the February 7, 1965 Agreement which requires furloughed employes to have a telephone to be available for calls.


        2. There is nothing in the Rules Agreement on this Carrier which requires a furloughed employe to have a telephone to be available for calls.


        3. There is nothing in the Letter Agreement, relied upon by the Carrier in denying the claim, which argument was apparently accepted by the Referee, which would require a furloughed emoloye to have a telephone to be available for a call. Only a most strained interpretation could reach that conclusion. The Carrier did not dare to nut such a requirement in an agreement and it was not the intent of the agreement when it was signed. Hari there been such provision in the Letter Agreement, which the Carrier submitted to the General Chairman, the General Chairman certainly would not have signed it. Here, we have a Carrier resorting to subterfuge to attain its purpose and a referee sustaining such action.

                              ,2_


We now wish to quote three Daragranhs of the "OPINION OF THE BOARD" as enunciated by the Referee:

 "We have previously analyzed the provisions of Article II, Section 1, of the February 7, 1965 Agreement, and especially that portion, viz:

            "An employee shall cease to be a protected employee in case of his

            A protected furloughed employee who fails to respond to extra work when called shall cease to be a protected employee.


"Our cited decisions have uniformly held that where there has been a consistent pattern of declining calls for extra work, the furloughed employee will be deemed to have forfeited his protection. However, we would emphasize that this resulted from a refusal to respond when called. We repeat, when called: In this context, the Carrier concedes that Claimant was not called due to his failure to furnish a telephone number, although he had submitted an address.

 "We are also mindful of the fact that the telephone agreements executed by the General Chairnan and the Carrier were signed on December 28, 1966 and March 12, 1968--long before Claimant was furloughed. !·lhat knowledge did he have of those Drovisions? We have searched the record for some evidence of notice to Claimant informing him of the necessity to furnish a telenhone number. The minimal requirement we could exDect in order to condone the severe result contemplated by Carrier, is a letter notifying Claimant of the Carrier's intent, in order to alert him to the consequences

 After reading and diaestina those three naragraphs we cannot understand ho~l the Referee could make the decision he did.

 In effect, the Referee is saying that furloughed employes must have a telephone to be available for extra work when there is no agreement, either nationally, locally nor by letter which so provides. But, the Referee does. The Referee has no authority to write rules for us and then make his award from the rules he writes.

 It is regrettable that the Referee has not served as a furloughed employe so he might appreciate and understand the trials and tribulations which confront these employes and the efforts made in the aqreement to provide them with some protection. If he had he would not unjustly and unreasonably add to the burdens of these employes.

            /s


C. L. DENNIS, Labor Member of G. E. LEIGHTY, L-abo_r_[1em1ber of Disputes
 Disputes Committee No. 605 ^' Committee No. 605