SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES) Hotel and Restaurant Employees and Bartenders International
TO ) Union
DISPUTE )
and
Texas and Pacific Railway Company
QUESTIONS 1. Whether the carrier is required by the February 7, 1965
AT ISSUE: Agreement to
restore to
protected status employees whom
it deprived of protected status by the application of a
pre-1965 schedule rule reading as follows:
"Employes who, account reduction in force,
have performed no service for a period of
six months (6) will be dropped from the
seniority roster."
2. Whether the carrier is required now to pay to employees
heretofore deprived of protected status, i.e., M. E.
Collings, S. Durkee, L. E. Trezevant, J. E. Banks, Jr.,
B. Gardner, C. Young, Jr., L. A. Bryant, H. W. Robinson,
J. M. Crabbe, Jr., E. C. Pierce, N. Powell, Jr., W. H.
Caldwell, P. Alexander, W. H. Roberts, and all others
similarly situated, compensation to which they heretofore
have been entitled under a proper interpretation of the
February 7, 1965 Agreement as protected employees.
3. Whether the carrier is required to furnish Health & Welfare
protection (or reimbursement for failure to provide such
protection in the past) to the above-identified employees,
and all others similarly situated, as a part of their protected compensation.
OPINION
OF BOARD: There is no dispute as to the essential facts in this case.
Claimants herein were dining car employes and were protected
under the terms of the February 7, 1965 Agreement. On May 31,
1969 Carrier discontinued its passenger service, and Claimants were furloughed
(and continued to retain seniority as provided in the schedule agreement be
tween the parties herein.)
On November 30, 1969 Claimants were dropped by Carrier from its
seniority roster pursuant to Rule 9 of the schedule agreement that reads in
pertinent part as follows:
Award No. 354
Case No. H&RE-22-W
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"*** Employes who, account reduction in
force, have performed no service for a
period of six months (6) will be dropped
from the seniority roster."
Carrier determined that since it had ended the employment relationship and Claimants ceased to be employes by reason of the operation of
Rule 9, they (Claimants) also lost their protected status. As a consequence,
Carrier discontinued paying the protected rate effective December 1, 1969.
On March 30, 1970 the Organization filed claims "for payment of
delinquent present and future payments for protective compensation under the
terms of [the February 7, 1965 Agreement.]" The claims were denied by Carrier
by letter dated April 14, 1970 asserting Rule 9 of the schedule agreement as
well as the fact that the claims were not filed within 60 days from November
30, 1969.
An additional "claim" was filed by the Organization's General
Chairman (by letter dated December 22, 1969 and sent to Carrier's Director of
Personnel) for "payment of delinquent present and future payments of premiums
[for health and welfare protection] to cover employees of your railroad who
are also protected under the provisions of the February 7, 1965 Agreement."
Carrier declined this claim not only on the merits but also for
the reason that the claim was not timely presented.
On April 22, 1970 the Organization's General Chairman informed
Carrier that both claims were being referred to the Organization's Vice
President for further handling. Thereafter on August 11, 1972 (over two years
later), the General Chairman wrote a letter to Carrier stating that he is "renewing and filing claims on the property * * * for payment of delinquent retroactive present and future payments for protective compensation * * * " Our
Award No. 318 was referred to as the basis for the "renewing and filing," of
the claims.
On August 18, 1972 a notice was served on the joint committees
advising of the Organization's intent to file submissions with this Board.
As to Question No. One
The issue of whether Carrier, by the application of a schedule
agreement rule, can deprive a protected employe of his protected status has been
determined by this Board in Award No. 318. In that award we held that the
Award No. 354
Case No. H&RE-22-W
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provision I/ in the schedule agreement did not, in and of itself, deprive an
employe of protected status where the employe failed to work through no fault
of his own. This conclusion was affirmed by our Award No. 326. The Board in
the latter award was careful to point out that while the schedule agreement
provision did not deprive the employe of his protected status, his obligation
to perform service under the February 7, 1965 Agreement must still be fulfilled.
In its submission Carrier takes strong issue with the findings
in Award No. 318, submits that is in error, and urges in this dispute that it
be reversed. Carrier states, in part:
" ... We believe your Board erred in its
Award 318 in construing the provision 'otherwise removed by natural attrition' by limiting the meaning of that phrase in such a way
as to exclude loss of seniority and employment relationship in the application of a
schedule rule where employes who were laid
off by reason of a decline in business did
not perform service and were dropped from
the seniority roster. This is the application of an existing Agreement which was not
amended or modified by the February 7, 1965
Agreement under which employes in the usual
and customary application of that rule ceased
to be employes in the same way that employes
cease to be employes in the case of retirement, resignation or death.
"Your Board concluded that 'since there
has been no showing that claimants were discharged for cause, they did not lose their
protected status under the provision of the
February 7, 1965 Agreement,' but makes no
finding as to the term 'otherwise removed by
natural attrition.' This term must necessarily be broadly interpreted since it includes not only such things as death and disability, but also resignations. This term is
broad enough and should be interpreted to in-
The provision referred to in Award No. 318 read: "An employe
who, on account of reduction in force, has not performed sixty (60) days'
service during a period of twelve (12) consecutive months will be dropped from
the seniority roster."
Award No. 354
Case No. H&RE-22-W
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clude forfeiture of seniority under the
application of an existing Agreement where
such attrition of the force flows from the
natural or normal application of an exist
ing rule in the schedule agreement. For
these reasons, the Carrier submits Award
318 is erroneous.
"As we have previously pointed out,
the Carrier's defense in this dispute is
based on an argument which either was not
advanced in the docket leading to Award
318 or was not discussed by your Board in
the opinion. This defense is the fact
that the February 7, 1965 Agreement must
necessarily apply only to 'employes'. It
is beyond imagination that either the
Carriers or the Labor Organizations con
templated affording any kind of benefits
to a person who was not an 'employe'.
Further, the February 7, 1965 Agreement moo
did not amend or modify the basic schedule
agreement but simply added protective bene
fits under the circumstances described in
the Agreement."
Carrier's suggestion that the term "otherwise removed by
natural attrition" is sufficiently broad to include being "laid off by reason
of a decline in business" not only belies awareness of the plain meaning of
the words, but more importantly, it is inconsistent with the application of
the terms of the February 7, 1965 Agreement.
Under the provisions of Sections 3 and 4 of Article I of the
February 7, 1965 Agreement there may be a reduction in force of protected employes only under certain conditions and within certain limitations. There
has been no showing in this dispute that Section 3 of Article I (decline in
Carrier's business) was applicable.
Award No. 354
Case No. H&RRE-22-W
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Carrier further argues that the Board in Award No. 318 did not
consider or discuss the basis for Carrier's defense, namely, that the
February 7, 1965 Agreement must necessarily apply only to "employes." As the
Carrier states: "It is beyond imagination that either the Carriers or the
Labor Organizations contemplated affording any kind of benefits to a person
who was not an 'employe'."
There is, as this Board views it, no intention by the parties
to protect persons who are not employes. This begs the question. At issue is
whether a Carrier can summarily and unilaterally deprive an employe of his
vested benefits by applying a rule in the schedule agreement that has nothing
whatever to do with "resignation, death, retirement, dismissal for cause
*." (Article II, Section 1.) The Board thinks not.
As to Question No. Two
Notwithstanding the Board's conclusions as to Question One above,
it finds that the organization failed to process the claims in compliance with
the required time limits with respect to compensation, and they are therefore
barred. This specific Question deals only with the question of compensation and
the Time Limit rules apply. (See Interpretations, Page 18.)
As to Question No. Three
Article IV of the February 7, 1965 Agreement provides in relevant
part that: "protected employes * * * shall not be placed in a worse position
with respect to compensation than the normal rate of compensation for said regularly assigned position on October 1, 1964; provided, however, that in addition
thereto such compensation shall be adjusted to include subsequent general wage
increases."
The Board re-affirms its findings in Awards No. 99 and ,'do. 342
holding that its jurisdiction does not include "paid vacations, holiday pay,
health and welfare and any and all other similar benefits." (Award No. 99).
AWARD
1. The answer to Question No. One is answered in the affirmative.
Award No. 354
Case No. H&RE-22-W
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2. The answer to Question No. Two is answered in the negative.
3. The answer to Question No. Three is answered in the
negative.
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Dated: Washington, D. C.
April 18, 1973
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