SPECIAL BOARD OF ADJUSTMENT NO. 605
PARTIES ) Lehigh Railroad Company
TO THE ) and
DISPUTE ) Brotherhood of Railroad Signalmen
STATEMENT
OF CLAIM: Claim of the General Committee of the Brother
hood of Railroad Signalmen on the Lehigh Valley
Railroad Company that:
(a) Carrier improperly abolished signal
employes' positions, on or about July 26,
1971, in violation of the Signalmen's
Agreement and the February 7, 1965 Agreement.
(b) Carrier should be required to compensate
the following fifteen affected employes
for wage loss suffered, and/or reimburse
them for extra expenses because the force
reductions forced them to exercise displacement rights to obtain another position which required them to entail extra
expenses:
1. W.
Kowalow, -Difference in pay between
Signal Foreman Signal Foreman and Signal
Maintainer, August 9 to
25, 1971, inclusive, for
105 hours straight-time
and 22 hours punitive.
2. C. P.
Cannon,
Signal Maintainer -Car mileage, 48 miles per
day C 9C, certain speci
fied days August 2 through
18, 1971 (total of 13 days).
AWARD NO.
3
b13
Case No. SG-33-E
3.
W. R.
Wygrola, -Car mileage, 90 miles per
signalman day C' 9C, certain speci
fied days July 26 through
August 25, 1971 (total of
18 days).
4. D. E. Allardyce, -Car mileage, 100 miles per
signalman day C 9C, for a total of
5 days, July 26 - 30, 1971,
and 175 miles per day for
8 days, August 16-25, 1971.
5. W. S. Quinn, -Pay at Signalman rate for
Signalman a total of 18 days, August
2 through 25, 1971 (8 hours
per day).
6. D. N. spigarelli, -Pay at signalman rate for
Signalman a total of 7 days, August
23 through 31, 1971 (8 hours
per day).
7. J. E. Herd a, -Pay at Signalman rate for
Signalman a total of 23 days, July 26
through August 25, 1971. v1'
8. L. J. Dowd, -Pay at signalman rate for a
Signalman total of 23 days, July 26
through August 25, 1971.
9. F. X. Jewell, -Pay at signal Foreman rate
signal Foreman for a total of 18 days,
July 26 through August 18,
1971. Car mileage 150 miles
per day C, 9C, for 5 days,
August 19 through 25, 1971.
10. W. F. Bubick, -Pay at Signal Helper rate
Signal Helper for a total of 23 days,
July 26 through August 25,
1971.
11. G. J. Fech, -Pay for 3 hours' riding time
Signalman daily for 23 days. Car
mileage 130 miles per day
94, for a total of 16 days.
12. A.
P.
Brown, -Pay at signalman rate for
Signalman 5 days.
AWARD NO.
.~
~~
Case No. SG-333-E
13. R. Azzalina, -Pay at Signal Maintainer
Signal Maintainer rate for a total of 22
days, July 27 to August
26, 1971.
14. C. T. Heitzman, -Pay for 40 hours C $0.0737
Relay Inspector per hour, 10 hours @ $4.4498
per hour. Car mileage, 84
miles per day @ 9fi, for a
total of 5 days.
15. H. McPherson, -Pay at Signalman rate for
Signalman 1 day, July 26, 1971."
OPINION
of BOARD: A variety of issues, both procedural and substantive,
has been raised in the handling of these claims on
the property and during the committee's discussion.
Non-Protected Claimants
Both parties agreed that Claimant Brown is not a
protected employee and consequently his claim has no standing
with this Committee. The parties differ over Claimant Bubick.
Since his status is uncertain and the Committee had no jurisdiction over non-protected Claimants in a case of this kind,
his claim is being referred back to the parties.
PER-3 Form
Eight Claimants did not submit claims on PER-3 forms
which Carrier had announced in 1965 were to be used in making
claims under the February 7 Agreement. According to carrier's
highest officer, the claims of these employees were therefore
improperly submitted. The Organization contends that the rules
for handling claims and grievances contain no provision permitting
Carrier to bind the organization by a unilaterally adopted procedure. This issue involves Claimants Quinn, Spigarelli, Herda,
Dowd, Jewell, Azzalina, Heitzman and McPherson.
In each case the first denial of the claim simply
stated that "it was not presented in accordance with existing
instructions." The General Chairman's appeal thereupon referred
to that comment, adding that "I am at a loss to understand what
is meant by 'existing instructions.'" At the next level,
-3-
AWARD NO.
3_'
Case No. SG-33-E
Carrier's response to this point repeated the same phrase which
had been questioned by the organization. Finally, carrier's
highest officer in his denial letter referred for the first
time to the failure to file claims on PER-3 forms.
Nothing in the rules agreement prescribes the particular kind of form on which a claim is to be made under the
February 7 Agreement. The November 24 Interpretations require
claims for compensation to be handled "in accordance with the
rules." Each employee's claim sets forth a demand for compensation in specific, understandable terms. Carrier was not
disadvantaged because it was submitted on a different kind of
paper than had been asked for and, according to the evidence,
had generally been used.
In the absence of mutual agreement on a procedure
flowing from a mutually agreed contract, it cannot be held that
the failure to comply with a six-year old management directive
is a ground for barring meritorious claims. Carrier has not
shown that it was adversely affected by the way in which the
claims were originally filed and, if there were some genuine
significance to PER-3, lower levels of Management could have
advised the organization of the proper procedure instead of
using the vague words about employees' failure to follow unspecified instructions. Grievance handling is not supposed
to be a series of technical pitfalls to catch the unwary.
Other Procedural Issues
Claimant Kowalow as local chairman wrote on his own
behalf to the supervisor on August 9, 1971, protesting suspension of his status as a protected employee and adding, "Claim
for difference in pay and expenses will be submitted at end
of month." The claim was described as vague by the supervisor
and denied for that and other reasons.
On October 15, 1971, a specific listing of amounts
due for August 9 through August 25, 1971, was submitted. It
also was denied, without reference to time limits. The General
Chairman's appeal of November 20 was denied on December 20 and
also on January 10, 1972, again without reference to time limits.
Only in the denial issued in the letter of Carrier's highest
officer on may 16, 1972, was reference made to Claimant Rowalow's
failure to file a timely request for compensation within 60 days.
-4-
AWARD No.
3_68
Case No. SG-33-E
This Claimant submitted a Form PER-3. Nothing in
the record shows that it was not received within 60 days.
During all the handling on the property up to the very last
step, no reference was made to timeliness. If there had been
a valid basis for that defense, it was effectively waived by
the continued processing of the claim without reservation on
timeliness.
Claimant Azzalina filed a claim on August 26, 1971,
asking for a day's pay for each day he was laid off after July 27,
1971, Aside from a denial on the merits, it was denied at the
lower level because it was "not presented in accordance with
the existing instructions," which was the language used in
connection with the eight Claimants who had not used PER-3.
Also, the highest officer asserted that the claim was too
vague and indefinite and referred to Article III and IV of
the February 7 Agreement, although the General Chairman
correctly cited Sections 3 and 4 of Article I.
However, the claim was understood at the lower
levels, although denied both on procedural and substantive
grounds. It was belated for the highest officer, almost nine
months after the claim arose, to dismiss it as vague and
indefinite when it specifically sought a day's pay for each
day laid off after July 27, 1971, totalling 22 days, according
to the General Chairman's November 10 letter. Claimant was
justified in filing a claim when he believed he was improperly
laid off, and having it applicable so long as the allegedly
improper layoff continued.
Claimant McPherson filed a claim for a day's pay
lost because he was displaced. It was denied on the merits in
addition to the assertion that it had not been filed "in accordance with existing instructions." The claim was denied at each
step without reference to any shortcoming because of a lack of
specificity. However, Carrier's highest officer denied the
appeal because the claim was "too vague and indefinite to be
considered a valid claim," since no date was furnished.
Obviously Carrier's supervisors knew the date or
they would have denied the claim on this ground, as well.
Having denied it on the merits, aside from other procedural
reasons, the final denial on the ground of vagueness cannot
be upheld. The same is true with respect to Claimant's initial
reference to "Articles III and IV," which was corrected by the
-5-
AWARD No.
368
Case No. SG-33-E
General Chairman to Sections 3 and 4 of Article I; no uncertainty existed in the minds of the lower levels of Management
about the basis for this claim.
Expenses and Travel Pay
This Committee is without jurisdiction to award
travel or other expenses, or to award pay for hours spent in
traveling to the job because the time exceeds that normally
spent.
Applicable Notice Provision
on or about July 30, 1971, carrier advised various
employees as follows:
As you are aware the United Transportation
Union is now striking ten (10) Railroads and
has scheduled strikes against seven (7) additional Railroads. In addition, there is a
threatened strike in the steel industry to
beome (sic) effective August 1, 1971.
The business of our Company has been seriously
affected and additional strikes will produce a
further decline in business. Thus, it will be
necessary to reduce the forces consistent with
the resultant curtailment or cessation of our
operation in accordance with the force reduction rule applicable to such emergency conditions. Therefore your position is abolished
effective 5:30 P.M., July 31, 1971.
A week later carrier sent the following letter:
Consistent with Section 3 of the Feb. 7th,
1965 Stabilization Agreement, this is to notify you that due to the continuing and anticipated
decline in the business of this Carrier, your
position remains abolished and your status as a
protected employee is suspended and terminated.
-6-
AWARD NO.
368
Case No. SG-33-E
The Organization contends that the first communication was under Article I, Section 4, of the February 7 Agreement, which provides 16-hours'notice of force reduction in an
emergency situation due to a strike. The second communication,
it was said, was a Section 3 notice, although force reductions
made due to an emergency must be excluded from the calculations
in measuring a Section 3 decline in business.
Carrier's position is that Section 4 is not involved
in this case; the reduction in force was a product of a Section
3 decline in business, precipated by a strike, and Claimants
were given appropriate notice under the applicable schedule
agreement.
Except in connection with emergencies, the schedule
agreement requires five-working-days'advance notice before
forces are reduced or positions are abolished. Although Carrier
cited strikes as a factor in the force reduction, it also referred
to a decline in business. Carrier, of course, is the only one
to say under which provision it is reducing forces, and its
position must be accepted.
But Carrier may not give the briefer notice applicable to Section 4, when it lays off under Section 3. According
to Section 4, only 16-hours' notice need be given "before such
reductions are made." And "such reductions" refer to those
produced by an emergency situation, where operations are suspended
in whole or part, where the work no longer exists, or where it
cannot be performed. Article VI of the August 21, 1954 agreement, on which carrier relies, uses the same criteria to determine when an emergency subject to the 16-hours' provision exists.
It does not suffice for Carrier to say that forces
are being reduced because of a decline in business caused in
whole or part by a strike and therefore only 16-hours' notice
is required. As in Article I, Section 4, of the February 7
Agreement, Article VI gives Carrier the "right to make force
reductions under emergency conditions such as flood, snowstorms ...or strike," provided, inter alia, operations are
suspended in whole or part. No such emergency occurred,
according to the record in this case, and Carrier could not
properly give merely 16-hours' notice.
Consequently, protected Claimants who were laid off
and received less than five-working-days' notice are entitled
to compensation.
-7-
AWARD No.
34?
Section 3 Reduction in Forces
Although Carrier assertedly made its reduction in
force under Section 3, it produced no supporting data until a
considerable time after the first layoffs occurred. Question
and Answer No. 2 on page 7 of the interpretations gives no
precise time when Carrier must support its claim, although
layoffs of protected employees "in anticipation of decline
in business" are permitted, subject to redress if the decline
does not materialize.
All that the Interpretations provide is that pertinent information will be furnished "as soon as available."
In this case calendar-month data, not transformed by Carrier
into percentages, and without any indication either of the
number of employees on the protected list or of the number
subject to layoff based on the percentage decline in business,
were supplied to the Organization in March, 1972. This was
seven months after the reduction in force began.
The organization in its letter to Carrier on June
14, 1972, complained of the delay in the submission of the
data furnished by Carrier. It said nothing of the nature of
the data and made no challenge to it either in terms of its
incompleteness or because it was on a calendar-month basis
rather than a 30-day per i o d coincident with the layoff
period.
Carrier contends that the data were supplied to
the Organization when they became available and "there was no
question raised when it was submitted." Not having been discussed on the property, it was said, this aspect of the case
should not be before the Board. On the property "the employees
did not refute Carrier's figures or request additional data,"
it was said.
The record indicates that the organization failed,
in fact, to challenge the form or content of Carrier's information. If calendar-month figures were not considered an
accurate reflection of the situation, the time to have said
so was on the property. The same is true with respect to
Carrier's failure to calculate percentages or to show the number of employees on the protected list, and the number who
would be affected by a reduction in force. On the property,
-g-
WAO
ATVARD NO.
365
Case No. SG-33-E
the organization made no claim that the number of layoffs in
the period involved was not justified by the percentage decline
derivable from carrier's figures, albeit they were on a calendar month rather than 30-consecutive-day period.
All that the organization challenged on the property
was the delay in submitting the figures. Carrier states that
it was done when available, as the Interpretations require.
In view of the vagueness of the formulation used in the Interpretations, and the fact that the organization was not shown
to have been disadvantaged, plus the fact that no earlier
demand for data had been made, redress for Carrier's slowness
in furnishing the information is not warranted.
Thus compensation only for the days when improper
notice was given, but not for all other days on which Claimants
were laid off, is due.
tlith respect to Claimant Spigarelli, his position
was not abolished, according to carrier; he was displaced by
an employee whose position was abolished. Claimant thereupon
chose to go on vacation. Although the claim is from August 23
through 31, unchallenged statements on the property show that
he was notified to return to work on August 26. Carrier's
assertion,that claims after August 25 were improper, was not
disputed. As a protected employee, displaced from his position
on August 23-25, Claimant is entitled to pay for three days. The
record supports no more of the claim than that.
Guaranteed Rate Due Protected Employees
in accordance with Award No. 321, protected claimants who suffered a diminution in rate by displacing into lower
paid jobs are entitled to retention of their protected rate of
compensation. Such claims are sustained.
Precedent
At the request of carrier members of the committee,
Award 321 has been again reviewed in light of Award 215. Reconsideration does not lead to any different conclusion. Employees
whose positions are abolished, and who exercise seniority to displace, are entitled to the protective benefits of the Agreement.
Award 215 ma_; be some;rhat similar, but it is apparently
not the same, since it seems to deal with employees who take
_g_
AWARD NO.
Case No. SG-33-E wool
different work, rather than with employees who must displace
to retain protected status when their jobs are abolished.
A W A R D
1. Claim is sustained for the difference
between the protected rate and the pay
received by Claimants Kowalow in the amount
of $63.55, and Heitzman in the amount of
$2.95.
2. Claims sustained for the following Claimants
laid off without adequate notice in the amount
shown:
Spigarelli - 3 days beginning August 23,
1971
Herda - 5 days beginning July 26, 1971
Dowd - 5 days beginning July 26, 1971
Jewell - 5 days beginning July 26, 1971
Azzalina - 5 days beginning July 27, 1971
McPherson - 1 day for July 26, 1971
3. Claims of the following Claimants for expenses
and travel time are denied: cannon, Wygrola,
Allardyce, Jewell, Fech and Heitzman.
4. The claim of claimant Quinn is denied because
five-working-days' notice was given to him of
the reduction in force. He was notified on
July 23, effective July 24, but he made claim
only from August 2 on, which was after a fiveday notice period.
5. Claim of claimant Brown, a concededly nonprotected employee is dismissed.
-10-
AWARD NO.
Case No. SG-33-E
6. Claim of Claimant Bubick is referred back
to the parties to determine if he is a protected employee and, if so, to grant him
five-days' pay for July 26 through July 30,
1971. The Committee retains jurisdiction if
his protected status is not resolved by the
parties.
~LZ.GZ¢~,
Milton Fried an
Neutral Member
Dated: Washington, D. C.
October
/Pt
1973