are protected employees under the 1965 Job Stabilization Agreement as
amended by an Agreement effective January 1, 1980. When the Carrier reduced its forces and abolished jobs, Claimants lacked seniority to hold a regularly assigned position on their seniority district. Consequently, Claimants were required to place themselves in off-in-force-reduction status. Thereafter, Claimants filed an application with the Carrier to limit their recall to designated points on their seniority districts as permitted under Schedule Rule 17-C(2) which was adopted pursuant to a May 19, 1976 Letter of Understanding. Immediately upon
Case No. CL-133-W receipt of the recall restriction filing, the Carrier suspended Claimants' protected status.
To justify its suspension of Claimants' protective benefits, the Carrier cited Article II, Section 1 of the February 7, 1965 Job Stabilization Agreement which reads:
The Carrier argues that the filing of Rule 17-C(2) recall restrictions automatically operated to suspend Claimants' protective benefits. In the past, the Carrier has consistently applied Article II, Section 2 in this fashion. Since Claimants refused to obtain an available position anywhere on their seniority district, they lose their protected status. Comparing the language in Rule 17-C(2) with Rule 17-C(6), the Carrier disagrees with the Organization's contention that employees restricting their availability for recall under Rule 17-C(2) may bid on an advertised position located beyond the points designated in the Rule 17-C(2) filing.
Case No. CL-133-W The Organization concurs with the Carrier that an offin-force-reduction employee who fails to exercise his seniority to obtain a regular assignment loses his February 7, 1965 job protection. However, the Organization asserts that the mere filing of a Rule 17-C(2) recall restriction by itself does not automatically trigger a loss of protection. Rather, the Organization argues that an employee must actually refuse a position before the Carrier can suspend Claimants' rights under the February 7, 1965 Agreement. Even after filing the 17-C(2) recall restriction, an employee may still bid on any regular position bulletined on his seniority district per Schedule Rule 11. Indeed, Rule 11 (B) grants senior off-in-force-reduction employees a preference over junior bidders when awarding regular positions. Under these facts, the Organization contends the Carrier prematurely suspended Claimants' protection.
The Carrier's application of Article II, Section 1 is overly broad. The Carrier's mechanical application of Article II, Section 1 to any employee who files a Rule 17-C(2) recall restriction improperly presumes that a position was otherwise available to the employee absent the Rule 17-C(2) filing. However, Article II, Section 1 speaks expressly to the availability of positions as opposed to employees. It is possible that the first available position will arise at one of the points designated by the employee on the Rule 17-C(2) form. The Carrier cannot suspend protection until the employee refuses an available position or his Rule 17-C(2) recall limitation actually operates like a refusal of an available position.
This Board is unable to formulate an appropriate remedy based on the record before us. Claimants may not be entitled to any relief. Their protected status might have been
Case No. CL-133-W properly suspended simultaneously with or shortly after they filed their Rule 17-C(2) forms depending on the availability of positions on their seniority districts. Each Claimant retained his protected status until he either refused an available position within his designated area or his Rule 17-C(2) recall restriction actually prevented Claimant from occupying an available position on his seniority district. Consequently, we remand this case to the property for disposition consistent with our Opinion.
The Answer to Question 1 is "Yes." Question 2 is remanded to the property per our Opinion.