PUBLIC LAW BOARD NO. 5927
_ Case No. 1
Award No. 1
Transportation-Communication Union )
vs ) PARTIES TO THE DISPUTE
Burlington Northern Santa Fe )
Railroad )
STATEMENT OF CLAIM
(a) Carrier violated the Mediation Agreement and the
working rules of the current Clerk's Agreement at Barstow,
California when it improperly removed H.P. Schumacher from
protected status and improperly removed his name from the
Purchases and Materials Management (P&MM) Coast Lines Seniority
Roster effective January 1, 1995: and
(b) H.P. Schumacher shall now be restored to the status of
a protected employee and shall have his name replaced on the
P&MM Coast Lines Seniority Roster and shall be compensated for
any monetary loss deriving from the Mediation Agreement and/or
the working rules Agreement, commencing January 1, 1995 and
continuing until such violations are corrected, in addition to
any other compensation he may have received.
FINDINGS
This Board finds the parties herein are Carrier and Employee
within the meaning of the Railway Labor Act, as amended, and that
this Board has jurisdiction over the dispute involved herein. The
parties to said dispute were given due and proper notice of
hearing thereon.
Claimant had a seniority date of April 28, 1977. As such
claimant was a protected employee under the terms and conditions
of the February 7, 1965 National Agreement as amended effective
January 1, 1980.
On December 27, 1990 Claimant last worked a clerical
position due to a force reduction, and began receiving the
benefits of the protective agreement. It is noted that when the
claimant was furloughed there were not any clerical positions
left on the seniority district.
On February 25, 1991 Claimant was offered comparable
employment as a shop craft laborer under the provisions of
Article II Section 4 of the protective agreement. Claimant
accepted the offer and was paid a supplemental allowance (the
difference between the laborer's rate and the protected clerical
rate).
On January 1, 1995, under the provisions of Rule 17A of the
Schedule AgFeement the Carrier removed the claimant from the
clerical seniority roster and ceased paying the
rates.
The Organization has progressed the claim
Carrier has violated both the Schedule Agreement as
February 7, 1965 Agreement~as amended.
The Carrier takes the position that it properly removed the
claimant from the clerical seniority roster under Rule 17A, and
that the February 7, 1965 Agreement, as amended, does not
supersede the Schedule Agreement. It argues that once the
claimant had lost the clerical seniority he was no longer
entitled to any benefits of the clerical craft.
The Carrier also argues that when the February 7, 1965
Agreement was amended in 1980 it no longer had to retain clerical
employees in service. Therefore, it was proper to furlough the
claimant. After the claimant had not worked in the clerical craft
for 4 years it was within their right to terminate the "life
time" protection of the February 7, 1965 Agreement, as amended.
difference in
alleging the
well as the
Article I Section 1 of the February 7, 1965 Agreement reads:
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. Any such
employees who are on furlough as of the date of this
Agreement will be returned to active service before
March 1, 'i965, in accordance with the normal procedures
provided for in existing agreements, and will thereafter be retained in compensated service as set out
above, provided that no back pay will be due to such
employees by reason of this Agreement. For the purpose
of this Agreement, the term "active service" is defined
to include all employees working, or holding an
assignment, or in the process of transferring from one
assignment to another (whether or not October 1, 1964
was a work day), all extra employees on extra lists
pursuant to agreements or practice who are working or
are available for calls to service and are expected to
respond when called, and where extra boards are not
maintained, furloughed employees who respond to extra
work when called, and have averaged at least 7 days
3
work for each month furloughed during the year 1964.
(Emphasfs added)
Article
I
as amended reads:
Section 1-
(a) Employees assigned to a regular position on
January 1, 1980, having three (3) or more years of
continuous employment relationship in the clerical
craft as of January 1, 1980, will become protected
employees on January 1, 1980.
(b) Employees assigned to a regular position on
January 1, 1980, having less than three (31 years of
continuous employment relationship in the clerical
craft on January 1, 1980, will become protected
employees on the first of the month immediately
following the month in which they acquire three (3)
years continuous employment relationship in the
clerical craft, unless they are not regularly assigned
on the date they are eligible to become protected
employees, in which event they will become protected
employees on the first of the month immediately
following the month when recalled to service and
assigned to a regular position in
accordance with
existing rules of the Clerks' Agreement.
(c) Employees not regularly assigned as of
January 1, 1980, having three (3) or more years of
continuous employment relationship in the clerical
craft as of January 1, 1980, will become protected
employees on the first of the month immediately
following the month when recalled to service and
assigned to a regular position in
accordance with
existing rules of the Clerks' Agreement.
(d) -Employees not regularly assigned as of
January 1, 1980, having less than three (3) years of
continuous employment relationship in the clerical
craft as of January 1, 1980, will become protected
employees on the first of the month immediately
following the month in which they acquire three (3)
years of continuous employment relationship in the
clerical craft, unless they are not regularly assigned
on the date they are eligible to become protected
employees, in which event they will become protected
employees on the first of the month immediately
following the month when recalled to service and
assigned to a regular position in accordance with
existing rules of the Clerk's Agreement.
(e) Employees hired on or after January 1, 1980,
who acquire five (5) years continuous employment
relationship in the clerical craft will become
protected employees on the first of the month immediately following the month in which they acquire five (5)
years continuous employment relationship in the
clerical craft, unless they are not regularly assigned
on the date they are eligible to become protected
employees, in which event they will become protected
employees on the first of the month immediately
following the month when recalled to service and
assigned to a regular position in accordance with
existing rules of the Clerks' Agreement.
(f) For the purpose of this Agreement, the term
"regular position" does not include as advertised
temporary vacancy or a short vacancy.
The apparent reason for the change is that the amendments to
the February 7, 1965 Agreement require furloughed employees to
apply for Railroad Retirement Board Unemployment Benefits, with
the Carrier making up the difference between the protected rate
of pay and the unemployment rate. However, both versions limit
the number of protected employees that may be reduced to a
decline-in-business formula.
Article II Section 1, which reads:
An employee shall cease to be a protected employee
in case of his resignation. death, retirement,
dismissal for cause in accordance with existing a,grge-
or failure to retain or obtain a position
available to him in the exercise of his seniority
rights in accordance with existing rules or agreements,
or failure to accept employment as provided in this
Article. A protected furloughed employee who fails to
respond to extra work when called shall cease to be a
protected employee. If an employee dismissed for cause
is reinstated o service, he will be restored to the
status of a protected employee as of the date of his
reinstatement. (Emphasis added)
was amended to read:
An employee shall cease to be a protected employee
in case of resignation, death, retirement, dismissal
_fQr cause in accordance with existing agreements, or he
becomes eligible for an annuity at age 65 under the
Railroad Retirement Act. The protected status of an
employee who fails to obtain or retain a position
available to him in the exercise of his seniority
rights in accordance with existing rules or agreements,
or fails to accept employment
Agreement, or fails to respond
called,- will be suspended until
obtains. a regular position. As of
such position he will be restored
protected employee and protecte regular position occupied on the
status is restored. If an employe is reinstated to service, he will
status of a protected employee a reinstatement. (Emphasis added)
The Carrier argues that the removal
from the seniority roster under Ru
resignation. It avers that seniority is
the protective agreement, and when th chest was forever locked.
d
e
s
as provided in the
to extra work when
such time as he
the date he occupies
to the status of a
at the rate of the
date his protected
dismissed for cause
be restored to the
of the date of his
e
of the Claimant's name
le 17A was
a key to the
key was lost
in essence a
treasures of
the treasure
This Board must decide whether the Carrier had the right to
terminate the Claimant's seniority under Rule 17, and if so did
it have the right to terminate the benefits of the February 7,
1965 Agreement, as amended.
Rule 17A of the Schedule Agreement reads:
Employees who do not assert their displacement
rights within the time limits provided in these rules,
or who waive displacement rights in writing, or who do
net possess sufficient seniority to displace a junior
employee will be considered laid off-in-force reduction. Except as otherwise provided in Rule 13, Rule 14B
and Rule 17, such off-in-force-reduction employees
shall retain their seniority rights so long as they do
not fail to perform service under this Agreement
during any period of 48 consecutive calendar months.
The record is void of any evidence that the Claimant;
(1) did not assert his displacement rights within the time limits
provided in the Schedule Agreement; (2) waived his displacement
rights in writing; or, (3) did not possess sufficient seniority
to displace a junior employee.
While the Carrier argues it has terminated numerous
employees under Rule 17A, the record is void of any evidence of
history of terminating employees who were receiving the benefits
of the February 7, 1965 Agreement, as amended. It is clear the
claimant is not covered by Rule t7A. Also there is no evidence
that the Carrier terminates the seniority of clerical employees
who have been promoted to management positions, and who have not
worked in the craft for 48 months.
However, even if the claimant were covered by Rule 17A, the
Carrier would have had no basis under the protective agreement to
terminate ths__ benefits. Claimant had accepted comparable
employment in another craft under the provisions of Article II
Section 4, which reads:
Off-in-force-reduction employees who are entitled
to protective benefits under National Mediation
Agreement Case No. A-7128 dated February 7, 1965, as
amended, may be offered, in reverse order of seniority,
reasonably comparable employment in another class or
craft or other-employment with the Carrier signatory
hereto or a Carrier fully or partially owned by the
Carrier signatory hereto which does not require a
change in residence for which he is physically
qualified, if such employment does not infringe upon
the employment or transfer rights of the employees in
such other craft or class, and the filling of the
vacancy in the other craft or class would require the
carrier to hire a new employee. (Emphasis added)
Article Iv describes the benefits due regular assigned
protected employees and supplemental allowance due unassigned
protected employees. Section 5 of the article describes when an
employee will not be entitled to the supplemental benefits. It
reads as follows:
A protected employee shall not be entitled to the
benefits of this Article during any period in which he
fails to work due to disability, discipline, leave of
absence, military service, or other absence from the
Carrier's service, or during any period in which he
occupies a position not subject to the working
agreement (except as provided for in Article II) or his
protected status is suspended; nor shall a protected
employee be entitled to the benefits of this Article Iv
during any period when furloughed because of reduction
in force resulting from seasonal requirements (including lay-offs during Miners' Holiday and the Christmas
Season) or because of reductions made pursuant to
Article I, Sections 3 or 4. (Emphasis added)
This section clearly excepts those employees accepting
comparable employment from suspension of benefits.
Finally, in a similar case before Special Board of Adjustment No. 605, in Award No. 318, Referee Zumas held:
Essentially Carrier asserts that its action under Rule
8(c) comes within the definition of "discharged for
cause or otherwise removed by natural attrition."
The Board does not agree. The purpose and policy of the
February 7, 1965 Agreement was to afford job protection, under certain conditions, to certain employees
because of economic crises in the railroad industry.
It is assumed from the record that Claimants herein did
not work the required 60 days solely because Carrier
had no need for their services, and not because of any
willful or voluntary act on their part. This was what
the February 7, 1965 Agreement attempted to obviate.
Since there has been no showing that Claimants were
discharged for cause, they did not lose their protected
status under the provisions of the February 7, 1965
Agreement.
None of the changes in 1980 changed the purpose of the
February 7, 1965 Agreement.
The Carrier by its actions has attempted to reduce the "life
time" protection benefits of the February 7, 1965 Agreement, as
amended, to a four-year benefit. While its arguments may show
ingenuity they are sophomoric.
The Carrier has violated the
Schedule Agreement when it
improperly removed the Claimant from the seniority roster and the
February 7, 1965 Agreement, as amended, when it ceased paying the
Claimant his supplemental benefit.
AWARD
Claim sustained. Carrier is ordered to restore Claimant's
clerical seniority and reimburse the claimant for all monies
withheld within 30 days of this Award.
Rob t Riche e07, Neutral Member
LL.L~ Broterm n William R. Miller
Carrier Member Employee Member
Dated
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