SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks, Freight
TO ) Handlers,Express and Station Employes
DISPUTE) and
Atchison, Topeka and Santa Fe Railway Company
QUESTIONS (a) Does Carrier violate the provisions of the February 7,
AT ISSUE: 1965 Agreement when it fails and refuses to recognize M. D.
Hartman as a protected employe?
(b) Shall Carrier compensate M. D. Hartman beginning May
26, 1970, for the difference between his guaranteed rate as a
protected employe and that of Janitor position and/or other
positions held subsequent thereto, as provided in the February
7, 1965 Agreement?
OPINION Claimant was hired on December 28, 1961, as a clerk in the
OF BOARD: Station Department at Arkansas City; and worked until November
22, 1962, when he was furloughed. Thereafter, on November 29,
1962, he was hired as a clerk in the Mechanical Department at
Arkansas City--a separate and distinct seniority district from
the Station Department. Both positions--in the Station and Mechanical Depart
ments--are included within the Organization's jurisdiction. Consequently,
Claimant retained and continued to accumulate seniority in the Station Depart
ment; as well as accumulating seniority in the Mechanical Department.
On May 29, 1963, Claimant was recalled from furlough to a
position in the Station Department seniority district at Ponca City. At this
juncture, as alleged by the Organization, Claimant had the option of "forfeiting
his seniority in the Mechanical Department and returning to the Station Department or forfeiting his seniority in the Station Department and continuing to
work and accumulate seniority in the Mechanical Department." He opted to "forfeit his Station Department seniority and retain his position and seniority in
the Mechanical Department."
Thereafter, Claimant continued to work in the Mechanical Department until May 25, 1970, when a number of positions were abolished. In due
course, Claimant exercised his seniority rights in the Mechanical Department and
displaced on a Janitor position, at a lower rate of pay. Therefore, the
Organization filed the instant claim for the difference in rates of pay from
May 26, 1970. Subsequently, on January 28, 1972, Claimant was furloughed again
and when he declined recall to the Mechanical Department on February 25, 1972,
it resulted in a forfeiture of his seniority rights.
Hence, the primary issue is whether Claimant was a protected employee pursuant to the provisions of Article I, Section 1 of the February 7, 1965
Agreement. The pertinent portion of Section 1, applicable herein, provides as
follows, to wit:
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Case No. CL-98-W
1, 1964; as
"All employees, other than seasonal employees, who were in active service as of October 1, 1964,
or who after October 1, 1964, and prior to the date of
this Agreement have been restored to active service,
and who had two years or more of employment relationship as of October 1, 1964, and had fifteen or more
days of compensated service during 1964, will be retained in service subject to compensation as hereinafter provided unless or until retired, discharged for
cause, or otherwise removed by natural attrition."
Unquestionably, Claimant was in active service as of October
well as having had two or more years of an employment relation-
ship with the Carrier; as well as having had fifteen or more days of compensated service during 1964.
Thus, presumably, Claimant has met every condition detailed
in Article I, Section 1 of the February 7, 1965 Agreement. Hence, the query-why does Carrier insist that Claimant was not a protected employee? Furthermore, the Organization argues that we have decided this issue previously, in
Award Nos. 34, 161 and 246. Specifically, in Award No. 34, we stated as follows, via:
"Seniority, normally, flows from the Agreement of the parties as evidenced by the collective
bargaining contract. Conversely, the employment relationship arises when an employee is first hired-whether in a bargaining unit or excepted position.
Hence, the employment relationship need not be coincidental with seniority."
Moreover, the Organization buttresses the aforesaid, by reference to Question and Answer No. 5 under Article I, Section 1 of the November
24, 1965 Interpretations, viz:
"Question No. 5: Is the term 'employment relationship' synonymous with 'seniority'?
Answer to Question No. 5: The term 'employment relationship used in this Section should not be confused with the term 'seniority,' since it was used
in the agreement to provide protection to employee
who had at least a 2-year employment relationship
with a carrier on October 1, 1964, but who may not
have had at least 2 years' seniority."
Undoubtedly, were we to ignore the balance of the Carrier's
would be compelled to agree with the Organization's position that
a protected employee. It is at this juncture, however, that we
argument, we
Claimant was
Award No. 381
Case No. CL-98-W
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are constrained to pause and reassess the problem. What is the basis for
Carrier's denial of protection to Claimant? It is premised on Question and
Answer No. 10, Article I, Section 1 of the November 24, 1965 Interpretations,
to wit:
"Question No. 10: Can employment in more than one
seniority district in the same craft on the same carrier be counted in determining protected status?
Answer to Question No. 10: Yes, provided the employee acquired and retained seniority on each seniority
district or roster or was transferred to another
seniority district or roster at the request of management for temporary services. Otherwise, no."
In essence, it is the position of the Carrier that when Claimant relinquished his seniority in the Station Department on November 29, 1962,
he had not fulfilled the requirement contained in Article I, Section 1 of the
February 7, 1965 Agreement. Namely, as provided by Answer No. 10--"acquired
and retained seniority on each seniority district." Thus, having failed to retain his seniority in the Station Department for the two year period prior to
October 1, 1964, Claimant never obtained protection; despite the fact that he
had an employment relationship.
Admittedly, we are reluctant to accept this argument. Nonetheless, we are impelled to the conclusion that we cannot be oblivious to its
portent. We have stated, previously, that the negotiators to the February 7,
1965 Agreement, as well as the November 24, 1965 Interpretations, were experts
in this field. Having propounded Q. 6 A. No. 5, why did they see fit to add
Q. 6 A. No. 10 under Article I, Section 1? Evidently, they were still in disagreement as to the scope of protection accorded employees under Article I,
Section 1. Hence, they sought to clarify and narrow their differences. In
effect, Q. 6 A. No. 10, in our view, covers the instant situation.
As we understand the thrust of the Carrier's argument, an employee who acquired seniority-in two separate seniority districts, was required
to retain his seniority in at least one seniority district for the two year
period prior to October 1, 1964. This requirement is mandated by Q. 6 A. No.
10, otherwise, there could not be a tacking-on of seniority. On the other hand,
where there existed an employment relationship only, absent any involvement of
seniority, or solely in one seniority district , for the two year period prior
to October 1, 1964, then Q. 6 A. No. 5 would control. Conversely, where an employee acquired seniority in two separate seniority districts prior to October
1, 1964, he was required to retain his seniority in at least one seniority district for the two years prior to October 1, 1964, in order to acquire protection.
Award No. 381
Case No. CL-98-W
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Thus, it is our considered judgment that under the circumstances prevalent herein, Claimant was required to retain his seniority in
the Station Department for the two year period prior to October 1, 1964, in
order to be considered a protected employee. In passing, we would note that
equity favors Claimant, however, we are required to construe the Agreement
and Interpretations as written by the parties. In that regard, we acknowledge our ineluctability to the Carrier's arguments.
Award:
The answer to questions (a) and (b) is in the negative.
Iurray . Rohman
Neutral Member
Dated: Washington, D. C.
July 26, 1974
WCEI
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JUL 3 1 1974
BERT
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