PARTIES) Missouri Pacific Railroad Company.
TO THE ) and
DISPUTE) Transportation-Communication Division, Brotherhood
of Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees
QUESTIONS
AT ISSUE: 1. Is Carrier in violation of the Agreement
when it refused to grant J. R. Baker, Jr.,
preservation of compensation under Article
IV contending that he cannot work on a posi
tion requiring bond and therefore is not
entitled to any protection of any kind?
2. If the answer to the above is in the affirmative shall Carrier be required to pay J. R.
Baker, Jr., the preservation of compensation
due to him under Article 1V?
OPINION
OF BOARD: Claimant's position as Telegrapher-Clerk was abolished
in September, 1968. He sought to displace an Agent
but was advised by Carrier that he could not do so
since the Agent's position required a bond and Claimant was not
bondable. On several occasions, beginning in 1914, Claimant had
been refused a surety bond, the specific reasons for which are
not in the record, aside from Carrier references to "inability
to handle company funds" and "excessive garnishments."
There was no position which Claimant might have occupied
which did not require a bond. According to carrier, therefore,
Claimant has lost the right to protected status because his failure
to qualify for a bond was the result of voluntary circumstmces
which he alone could cure. Carrier states that "there was no
intention on behalf of the parties to the February 7, 1965 Agreement to afford protected benefits to an individual who by his own
conduct effectively deprived the Carrier of utilizing his services wherever his seniority would permit."
AWARD NO. .
Case No. TC-BRAC-101-W .40
The organization contends that Claimant is entitled
to receive the benefits of Article IV, Section 1, because he
was "ready and willing at all times to perform service." He
did not obtain the position he sought (or any other to which
his seniority entitled him), it was said, solely because Carrier
declined to permit him to occupy them. Since Claimant was prepared to work but was denied work by action of Carrier, he should
receive the benefits due protected employees, according to the
Organization.
It is certainly doubtful, absent direct evidence,
whether the inability of an employee to obtain a bond is
accurately described as voluntary on his part. Moreover, for
a half-century Claimant has worked for Carrier as a non-bonded
employee, and obtained protected status with that circumstance
in his record.
Claimant was able and willing to perform the work
on the position he was occupying, but Carrier abolished it.
Claimant then was obliged to obtain another position to which
his seniority entitled him and for which he was qualified.
There was none.
J
"Disability" is given as one of the reasons in
Article IV, Section 5, why "a protected employee shall not be
entitled to the benefits of this Article." Yet a protected
employee whose job is abolished and who cannot hold another
position because he is disqualified for it would not
11
denied
the benefits of Article IV. Award No. 194 deals with his
question, and holds that the consequences of a job abolishment,
which is not a voluntary act of the employee, entitled him to
the benefits of Article IV.
There may be various reasons why no other jox is
obtainable by an employee following Carrier's abolishme~ ; of
the position he held. Award No. 194 cites one situation. Physical limitations may restrict an employee's capacity to move
into other positions, as described in Awards 136 and 169, but
guaranteed compensation is payable. Or, as in this case, the
requirement that positions must be manned by a bondable employee
may narrow or eliminate the possibility of placement for particular employees.
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AWARD NO.
30
Case No. TC-BRAC-101-W
Since Claimant became a protected employee on
October 1, 1964, with all of the limitations and disabilities
flowing from his inability to obtain a bond, he cannot lose
that status if an action of Carrier results in the loss of his
position and no other position for which he is eligible is
available.
If it were shown that he were, in fact, bondable but
chose not to obtain a bond, Carrier's denial of the claim would
be appropriate. As it is, the absence of bondability cannot
be described as voluntary, particularly since Claimant had tried
for more than 40 years to obtain a bond. Claimant apparently
has done all that he could to place himself on
another position
and to make himself available for work. Since he lost his position by Carrier's action, his protected
compensation therefore
cannot be
terminated.
AWARD
The Answer to the Questions is Yes.
Milton Friedman
Neutral Member
Dated: May
1Y,
1972
Washington, D. C.
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