Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9555
SECOND DIVISION Docket No. 9395
2-FGE-CM-183
The Second Division consisted of the regular members and in
addition Referee James F. Scearce when award was rendered.
( Brotherhood Railway Carmen of the United States and
Parties to Dispute: ( Canada
Dispute: Claim
of
Employes
( Fruit Growers Express Company
1. That under the controlling agreement, the Fruit Growers Express Company
failed to compensate the 26 Claimants named below, the balance of the
1978 back pay "special allowance" as agreed under Section 3 of Mediation
Agreement dated January 17, 1979.
R.L. Smith
R.W. Liller
D.A. Kerner
R.A. Eaton
J.M. Head
R.E. Sabb
L.L. Lockhart
I.F. Ingram
C.R. Hicks
H.F. Davis, Jr.
W.A. Wiser
A. Saahir
G.R. Fletcher
M.A. Muhamad
R.C. Bogle
R.E. Harris
K.E. Rawls
R.L. Fincham
R.L. Brooks
B.E. Chittum
R.M. Campbell
R. Dobbins
R.M. Evans, Jr.
K.A. Bayliss
L. Osborne
W. Daniels
2. That accordingly, the Carrier be ordered to compensate Claimants named
herein the remaining amount owed them when they left the service of the
Carrier.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
This dispute deals with the application of a "Mediation Agreement" signed In
February of 1977 (to be effective January 1, 1979) insofar as certain aspects of
compensation was concerned. Of specific importance was Article I, Section 3 of
such Agreement which stated that:
"Compensation for services in 1979 will include a special
allowance to be applied on each of the remaining pay
periods in the calendar year 1979, to each employee named
on the attached statement, in an amount determined by
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dividing the total amount shown for each such employee
by the number of such pay periods."
While this provision cited "employee(s) named on the attached statement...," no
such list was ever appended. It is conceded that this Agreement was effected in
recognition of the fact that the represented employes had not received a general
wage increase since June 1, 1977. The parties are at variance as to the nature
of the compensation referred to in Section 3: per the Organization it was
retroactive pay for 1978 to be distributed over the 1979 pay period; according to
the Carrier, it was a compromise settlement as part of the Mediation Agreement and
was prospective in nature. The Carrier points to the opening words in Section
3 -- "compensation for services in 1979..." The Carrier concedes, however, that
the amount to be meted out in 1979 would equal the amount sought by the Organization
as 1978 back pay.
In the process of working out the Mediation Agreement, a question apparently
arose as to the application of Section 3 where employes
who
died, retired or who
were furloughed during 1978 or 1979 were involved. An undated, unsigned but
apparently acceptable memorandum was executed which provided that employes in
the above-stated three (3) categories would be afforded the full measure of such
compensation as if they had worked the entire 1979 period.
The instant dispute arose aver the Carrier's refusal to apply Sec:=ion 3 to
employes
who
resigned (quit) or were terminated during 1979. In essence, the
Claimants herein are demanding that the benefits of Section
3
be afforded them
the same as for employes who retired, were furloughed or
who
died during 1978
or 1979. The Organization cites Rule 21(b) as controlling:
"(b) Employees leaving the service will be furnished
with a time ticket covering all time due within twenty-four
(24) hours where time tickets are issued and within fortyeight (48) hours at other points, or earlier when possible."
Essentially, the Organization is contending the pay was earned in 1978 and is
owed at the time the Claimants' services ceased in 1979.
While we find Article I, Section 3 of the Mediation Agreement less than clear
and unambiguous and certainly not well-detailed as to its coverage, it would
appear to contemplate the presence of the recipients of such pay as
employees
"... on each of the remaining pay periods in the calendar year 1979...". An
exception to such literal interpretation was effectuated by the "memorandum"
for those employes
who
would not be -- or who could not be -- available during
the aforementioned pay period for the specific reasons of death, retirement or
furlough. It is a well-established principle that where the parties have seen
fit to specify an exception or exceptions to a provision of a collective
bargaining agreement, others are without authority to establish other exceptions.
And, the fact that the parties determined to establish the exception set out in
the memorandum gives impetus to the conclusion that the norm would be employes
who
were in active status throughout the 1979 period. In essence, employes who
unilaterally chose to terminate their service or who were terminated for cause
fell in neither the norm nor the exception. We must also conclude that the
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Page
3
Award No. 9555
Docket No. 9395
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nature of the compensation increment referred to in Article I, Section 3 is what
it is stated to be therein -- a "special allowance" and not earned back pay as
contended by the Organization.
Finally, in order for Rule 21(b) to be applicable, entitlement to the
disputed compensation must be established; it has not.
A W A R D
Claims denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
B~emarie Brasch - Administrative Assistant
Dated (at Chicago, Illinois, this 13th day of July, 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Imo