The Organization contends that Claimant was entitled to be retained in service and not placed in a worse position with respect to his compensation and working conditions pursuant to the February 7, 1965 Agreement. The Organization submits that a protected employee's eligibility for benefits is only limited by the exceptions enumerated in Articles I and IV of the February 7, 1965
Agreement. Last, the Organization argues that Claimant's entitlement to protective benefits is not contingent on the Carrier first engaging in an operational, technological or organizational change but, the Organization alternatively argues that the Carrier did implement an organizational change.
The Carrier submits that Claimant was involved in a chain of displacements emanating from a system-wide furlough of approximately 1,500 employees.' According to the Carrier, the huge force reduction was a desperate measure brought on by severe budgetary constraints. Relying heavily on the decision of Special Board of Adjustment No. 605, Award No. 497, the Carrier contends that inasmuch as the massive downsizing did not constitute a technological, operational or organizational change, Claimant is not entitled to benefits under the Job Stabilization Agreement.
' While the record is vague, leas than a handful of signal employees were furloughed and the record does not reveal how many furloughed employees were protected employees. Claimant was not furloughed.
employees here were furloughed on account of the disappearance of work which is very unlikely to reappear. The evidence presented by the Union about overtime worked by certain gangs is anecdotal and isolated. There is insufficient evidence to show that such situation exists system-wide.
The reason for the employees' furlough is crucial because it is well established that the cause of the furlough is intimately related to the employees' entitlement to protection benefits. The plain language of PEB Nos. 160 and 161 makes clear that the February 7 Agreement was an effort to protect railroad workers from the negative effects of modernization and operating efficiencies. It was not, however, a blanket protection against all furloughs for whatever reason. The downgrading, dislocation, or disemployment that was the concern of the PEBs were those resulting from technological or organizational changes. This is the theme to which the Carrier returned again and again in its presentation, and correctly so. The parties to the February 7 Agreement, including the Organization and Carrier here, entered into a contract, which in the law is a bargained for exchange. In exchange for financial protection for its members, the Organization accepted the loss of employment for some of those same members through the modernization of the Carrier's operations by technological, operational, or organizational improvements. Numerous awards correctly have termed this a "quid Dro quo."
The protections created in the February 7 Agreement are, however, activated only by the sort of disemployment envisioned by the Agreement, that is: Technological, operational, or organizational improvements. The furloughs in this case are not the product of those sorts of improvements, but are the result of the elimination of the work that the furloughed employees performed. The work of the employees furloughed here was not eliminated by an operating efficiency; it was eliminated because of the financial exigencies as the Carrier legitimately determined them. No one or nothing else is performing the work of the furloughed employees; it simply is not being done.
This principle underlies the Carrier's argument regarding the failure to exercise seniority by the furloughed employees. Using the capacity to exercise seniority as a measure of whether or not there is work available to perform, the Carrier correctly shows that the
AWARD NO. 509 CASE NO. SG-67-W an operational, organizational or technological change. Article III, Section 1 clearly ties the Carrier's right to transfer work to the occurrence of one or more of the three enumeraterated changes.
After carefully reviewing the record, we find that the Organization has fallen short of showing that the Carrier implemented an organizational change. We cannot infer from the sparse evidence before us that work was consolidated or there was a change in the method of performing the work. The abolishment of a position is frequently associated with an organizational or operational change but cutting off a job, standing alone, does not constitute such a change. Absent more evidence, this Board must infer that some signal work ceased to be performed. [See Award Nos. 408 and 480. ]
The purpose of submitting the following documentation and dissent is to clarify the record regarding Special Board of Adjustment (SBA) Awards 503-B, 509 and 510. The aforementioned Cases involve an interpretation of the February 7, 1965 (Employment Security) Agreement.
At the onset exception is taken to the Arbitrators irresponsible note on page 2 of Award No. 503-B, wherein, he stated that "It is difficult to conceptualize the existence of any scope rule violation when the work in dispute was performed by covered employees represented by the Organization." Notwithstanding the arbitrators obvious inability to comprehend scope rule violations, this aspect of the Case was not properly before him and serious exception is taken to an attempt to provide an opinion when he lacked the authority to do so.
As noted, that instant Case was originally submitted before the National Railroad Adjustment Board (NRAB) for adjudication. The NRAB held in Third Division Award 30722 that the dispute should be submitted to SBA 605 for a determination regarding a question of jurisdiction. The Neutral Member of SBA 605's sole responsibility was to address the provisions of the February 7, 1965 Agreement. The Neutral Member had no right or privilege to fashion his own brand of judgement concerning the validity of a Scope Rule violation, that question is still before the National Railroad Adjustment Board.
With regard to SBA Award No's 509 and 510 the factual circumstances are similar. In both Awards the Neutral Member noted and implied that "The Organization vigorously contends that this Board's decision in Award No. 497 was palpably erroneous." It is interesting to note that in Award No. 509 the Neutral Member stated that "In reaching our decision, we did not rely on, endorse or overrule Award No. 497." However, it is also interesting to note that the Award contains nearly three pages of quotes from SBA Award No. 497.
The record indicates that the Claimant began service with the Carrier on June 21, 1978. Pursuant to "Article I, Section (1) of the February 7, 1965 Agreement as amended on June 4, 1991, the Claimant is considered a "Protected Employee." As noted in "Article IV, Section 2 of the Agreement, it states that "...employees entitled to preservation of employment shall not be placed in a worse position with respect to compensation than that earning during a base period comprised of the last twelve months in which they performed compensated service immediately preceding the date of this Agreement."
The record denotes that the Claimant held a position of "Signal Maintainer" at Salinas, California prior to September 13, 1993, after which he was displaced because of a widespread reorganization of the Signal Department. The Claimant was forced to exercise his seniority onto a Signalman's position at Morgan Hill, California
As noted in this instant Case the Carrier never denied the Organization's Claim, in fact the only correspondence from the Carrier indicates their willingness to hold the Case in abeyance.
Based on the record we can only assume that the Carrier thinks the Claimant is not entitled to any benefits. We don't know their reasons, what their contention's are. We can just as easily assume that they agree with the Organization and just forgot to pay the Claimant as requested. Since one assumption is just as viable as the other, we opt for the latter.
The record indicates that the Claimant was considered a Protected Employee and that he was displaced, however alleged that he was not entitled to any benefits because his abolishment was due to economical conditions and the elimination of his position did not represent an "operational, organizational or technological change." Carrier also argued that Claimant's exercise of his seniority rights was voluntary.
The fact is that the Claimant, as a protected employee, was placed in a worse position with respect to his compensation, by being forced to displace to a lower-rated position and ultimately being furloughed. The Agreement reveals that a Protected Employee "will be retained in service subject to compensation ... unless or until retired, discharged for cause, or otherwise removed by natural attrition:
Contrary to Carrier's contention that the Claimant is not entitled to any benefits because of alleged "economical conditions", the Agreement does not contain any exceptions that support Carrier's position. As noted the Agreement does contain an exception covering declines in business and establishes a formula for calculating that decline. The record however, is void of any evidence or contemplation by the Carrier, that this section of the Agreement was applicable.
Carrier argues that the abolishment of Claimant's position was not considered an "Operational, Organizational, or Technological Change" therefore, the Claimant was not entitled to the benefits of the February 7, 1965 Agreement. Contrary to Carrier's opinion, the latchkey for receiving benefits is not controlled by the existence or non-existence of an Operational, Organizational change. Whether an Operational, Organization change was present or not does not negate the benefits enumerated in the Agreement. The Agreement does indicate that the Carrier has the prerogative of effectuating Operation, Organizational changes, however, as noted in Article III of the Agreement, the parties shall enter into an implementing agreement prior to the implementation of such changes.
In Article IV, Section 6, it states that "The carrier and the organization signatory hereto will exchange such data a information as are necessary and appropriate to effectuate the purposes of this agreement.w