PARTIES ) The Chesapeake and Ohio Railway Company
TO THE ) and
DISPUTE ) Brotherhood of maintenance of :gay Employes
STATEMENT
OF CLAIM: Is t°7. F. Hardin a protected employe and
is he entitled to be reimbursed for the
loss of earnings suffered subsequent to
being furloughed effective at the close
of work on November 5, 1971?
OPINION
OF BOARD: Claimant's position as Pumper at Shelby, Kentucky,
was abolished. According to the organization the
abolishment was improper, since pumping work remained to be
done and was done by a non-bargaining unit employee. Moreover,
the Organization reasons, since it was improper to abolish the
position the Claimant was under no obligation to exercise his
seniority to obtain another position. He could simply wait,
mean·.-ahile retaining his protected status, despite Article II,
Section 1, which provides, in part:
An employee shall cease to be a protected
employee in case of his resignation, death,
retirement, dismissal for cause in accordance with existing agreements, or failure
to retain or obtain a position available to
him in the exercise of his seniority rights
in accordance with existing rules or actree-
According to the organization the key words in the
foregoing provision are those underlined. Rule 2(h) of the
Rules Agreements requires Pumpers to displace "when they do not
stand to work in such groups." Thus, the organization argues,
the rule requires displacement only when Claimant does "not
stand to work." But there was Pumper's work for him to do, it
was said, and therefore he stood to work as a Pumper and could
not displace else-ihere.
However, the underlined portion of Article II, Section 1, refers to the method of obtaining a position in the
exercise of seniority. It does not -fix preconditions which
Carrier must meet before seniority is to be exercised.
AWAaD NO.
3 ~9
Case No. MS9-16-E
A job is abolished with finality when Carrier
abolishes it. If subsequent challenge proves that carrier
was wrong, appropriate redress may be forthcoming. In this
case, Claimant may be entitled to return to work as a Pumper,
if the Claim filed with the Third Division on the abolishment itself were sustained. As the organization sees it
apparently, it is not enough that Carrier found there was no
job for Claimant as a Pumper; it became an arguable question,
and the employee was therefore not required to follow the procedures mandated when a job is abolished. In other words,
each employee
will
determine for himself whether Carrier was
right or wrong, in tune with the Agreement or in violation of
it, and he will then act in accordance with his finding.
The February 7 Agreement's provisions on the benefits and the obligations of protected employees must be observed
before it is decided who is right and who is wrong, not after
that decision is ultimately made. Employees are not relieved
of their contractual obligations because an act of Carrier is
of questionable legitimacy. They cannot, for example, obey
only those instructions which they have decided and valid. The
act of abolishment having occurred, the obligation under a provision like Article II, Section 1, becomes operative. An
employee must obtain a position available to him, if he is to
retain his protected status.
Had the parties intended such a requirement to
become effective only when all prior issues were settled, they
could have said so. Yet no distinction is made with respect to
the reason why an employee is left without a position. It may
be for a reason acceptable to the employee and the organization,
unacceptable to them, or of uncertain justification.
In any case, the employee must meet his responsibilities if he is to retain his protected status. He can
grieve Carrier's action, if he chooses, by pursuing a course
leading to the proper forum. But the merits of a job abolishment like this are not a question under the February 7 Agreement, and the organization has recognized this by filing a
claim on that account with the Third Division.
Claimant wilfully and knowingly refused to work,
except on his Pumper's position. He simply sat back and did
not work. Since he failed to obtain a position which was
-2-
AWARD NO.
3
Case No. MJ-16-E
available to him in the exercise of his seniority, he accordingly
has lost his protected status.
A14ARD
The Answer to the Question is No.
lei
on Fried n
Neutral Member
Dated: Washington, D. C.
October/j, , 1973