Org. File 1573-35/23-153                                  Decision No. 5503
Co. File TRN 61-4047                                      Case No. 20 UTU(T)      
                                                          Supplemental List No. 67

SPECIAL ADJUSTMENT BOARD NO. 18
(Train Service Panel)

PARTIES TO DISPUTE: United Transportation Union (Trainmen)
                    Southern Pacific Transportation Company (Western Lines)

STATEMENT OF CLAIM: Claim of Conductor B. L. Jones, Shasta District, Oregon Division, for proper payment due for the conductors' extra board guarantee for the month of November 1975 at Klamath Falls.

STATEMENT OF FACTS: During the month of November 1975, Conductor B. L. Jones, regularly assigned to the conductors' extra board at Klamath Falls, was permitted to lay off and mark up as follows:

November 1 - Laid off personal business at 1:30 PM. OK'd 11:55 AM, 2nd.
 8 - Laid off sick at 12:35 PM. OK'd 12:35 AM, 9th.
10 - Laid off personal business at 8:35 PM. OK'd 8:45 AM, llth.
13 - Laid off sick at 11:30 PM. OK'd 11:55 AM, 14th.
15 - Laid off personal business at 5:35 PM. OK'd 5:35 AM, 16th.
17 - Laid off 11:30 PM personal business. OK'd 11:35 AM, 18th.
20 - Laid off 8:30 PM. OK'd 9:30 AM, 21st.
22 - Laid off personal business 7:25 PM. OK'd 10:50 AM, 23rd.
24 - Laid off at 9:30 PM. OK'd 10:05 AM, 25th.

The timekeeper computed claimant's extra board guarantee under the guidelines worked out between the parties for conductors who protect the board for a fractional portion of the month and allowed him $446.92; however, this amount was subsequently deducted from Conductor Jones' paycheck in the 2nd period of December 1975.

DECISION: This case involves the question as to whether the rights conferred upon conductors as set forth in the Guarantee Rule, Article 21, Section J, Trainmen's Agreement, are in any way tempered by certain obligations of said conductors. Specifically, where there appears to be a pattern of excessive layoffs or other actions which raise a suspicion of sharp practice contrary to the intent of the rule, does this remove the perpetrators of such practice from the convenants of the rule during that month?

The Guarantee Rule was historically framed against a background of expectations each party had of the other. Due to the irregular supply of work inherent in the railroad business, the carrier desired a "guaranteed" supply of work force; similarly, the work force sought a guaranteed income in exchange for making themselves available for work. The Guarantee rule evolved mutually beneficial to carrier and craft alike. The quid pro quo of trainmen availability for a guaranteed income is implicit in the rule.

The agreement provision must be interpreted in light of these goals. The pro rata feature of the second paragraph, Section J, Article 21, if applied without regard to evasive actions, would negate the true intent of the rule. This is not to say that layoffs, bidoffs and the like, per se, thwart application of the rule. However, in the present case, the record shows that claimant made a series of layoffs and markups which conveniently attempt to reap the rewards of the Guarantee Rule while evading the "availability" principle as contemplated by the rule.

The Guarantee Rule is not designed to cover those who protect the board on days they are not needed for service and not protect the board when they are needed for service, for were that the case, trainmen could claim guarantee which, had they otherwise been available and worked, might not have been necessitated.

We believe the final paragraph of our findings in this Board's Decision 3636 is appropriate to the instant case:

"The series of 'lay offs' and 'mark ups' by claimant ... indicates to the majority of the Board that claimant was, in fact, 'sharp-shooting with considerable success.... We do not propose to allow the careless choice of a word or two to defeat the purpose of an agreement intended to make every conductor on the division ... deal fairly with his brother conductor."

The majority cannot condone the sharp-shooting evident in this case and we will look with disfavor upon similar cases in the future. We suggest, therefore, the parties to the dispute sit down and draft some concrete guidelines governing application of the Guarantee Rule to those who lay off and mark up in good faith or otherwise.

The claim is denied.

Gilbert H. Vernon
Chairman and Neutral Member

G. W. Gallagher
Employee Member

J. D. Lawson
Carrier Member

San Francisco, California April 7, 1983