Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11087
SECOND DIVISION Docket No. 11061
2-SB-CM-186
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood Railway Carmen of the United States
(and Canada
Parties to Dispute:
(South Buffalo Railway Company
Dispute: Claim of Employes:
1. That Cayman P. J. Phillips was unjustly dealt with by the South
Buffalo Railway Company when they misinformed him as to his entitlement under
the Supplemental Settlement Agreement dated June 29, 1983 in conjunction with
his election to accept early retirement.
2. That accordingly, the South Buffalo Railway Company be ordered to
carry out its ccmtnitment contained in the written estimate of benefits furnished to Mr. Phillips by Mr. K. S. Elek, Supervisor of Personnel, by compensating
Carman Phillips in the amount of Four Hundred Dollars ($400.00) per month for
each month that such payment was discontinued.
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 employes 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.
In August 1983, Claimant received a written estimate of pension
entitlements fran Carrier's Supervisor of Personnel. The estimate indicated
that Claimant mould receive a monthly benefit of $579.11, plus a $400.00
"window benefit" for twenty-one months commencing December 1, 1983, or until
October 1, 1985, when Claimant would reach age 62 and qualify for Railroad
Retirement and Social Security benefits. Claimant took early retirement as of
August 31, 1983. In January 1985, Claimant notified the organization that
payment of the "window benefit" had ceased in November, 1984. The organization thereafter filed a Claim on Claimant's behalf, challenging the termination of the payments.
Form 1 Award No. 11087
Page 2 Docket No. 11061
2-SB-CM-'86
The Organization contends that the Claimant accepted in good faith
the written estimate of his pension entitlements from the Carrier's Supervisor
of Personnel, the agent historically responsible for informing Carrier's employees of the employment benefits to which they are entitled. Claimant acted
on the information from the Supervisor of Personnel about his pension entitlements; the Organization argues that if Claimant had been told that the $400.00
monthly payments would last only twelve months, he would not have chosen to
retire.
The Organization asserts that the Carrier negligently misinformed
Claimant as to the real consequences of electing early retirement. Moreover,
Claimant was justified in expecting that the Carrier gave him accurate information about his pension entitlements. Claimant undoubtedly was harmed by acting on the information that Carrier supplied, suffering a financial loss of
$3,600.00.
The Organization also argues that contrary to the Carrier's assertion, it filed a grievance in this matter by letter dated February 25, 1985,
addressed to Carrier's Vice President, Personnel and Labor Relations. The
organization asserts that the Carrier acknowledged the existence of the
grievance when it denied the Organization's request for continued payment of
the "window benefit". The organization contends that the Claim should be
sustained, and the Claimant compensated in the amount of $400.00 for each
month that the monthly payments were discontinued.
The Carrier contends that the organization failed to file a grievance
pursuant to Rule 30 of the Agreement; this Claim therefore is not properly
before this Board and should be dismissed. Rule 30 provides, in part:
"(b) All claims or grievances will be presented in
writing, by the Employee involved or by his Duly
Accredited Representative, to his department head
within 60 days from the date of the occurrence on
which the claim or grievance is based . . . .
(d) All claims or grievances involved in a decision by the highest officer (the Superintendent or
his designee as provided above) shall be barred
unless within 9 months from the date of his decision proceedings are instituted by the Employee or
his duly authorized representative before the
appropriate division of the National Railroad
Adjustment Board or other tribunal having jurisdiction."
Form 1 Award No. 11087
Page 3 Docket No. 11061
2-SB-CM-186
The Carrier argues that because no Claim or grievance was submitted to Claimant's department head pursuant to Rule 30(b), this Claim is not properly
before this Board. Moreover, there was no decision in this matter by the
Superintendent; the Carrier asserts that there is no Claim or grievance referable to this Board.
The Carrier further argues that the organization also failed to follow the Review Procedure for handling pension disputes as set forth in Carrier's pension booklet. The Review Procedure provides, in part:
"After an application for pension in connection
with a participant's retirement is submitted, the
right of such participant to a benefit and the
amount thereof will be determined in accordance
with the provisions of the Plan by the Plan Administrator. If a participant who is not covered by a
pension agreement which provides a grievance procedure disagrees with any such determination, he or
his duly authorized representative may request a
review of the matter by the General Pension Board
by submitting a written statement to the Secretary
of the General Pension Board, Bethlehem Steel Corporation and Subsidiary Companies, Bethlehem, Pennsylvania 18016. Such statement should clearly
state that a review is being requested, set forth
the issues in dispute and indicate the participant's views with respect to the matter. The
participant or, in appropriate cases, his duly
authorized representative will be notified of the
General Pension Board's decision after the review
is completed.
If a participant is covered by a pension agreement
which provides a grievance procedure, then such
difference shall be resolved in accordance with
such grievance procedure."
The Carrier argues that the Organization's failure to follow the Review Procedure bars this Claim from any further consideration. The Carrier asserts
that the Organization's Claim is based on the fact that the Carrier's Supervisor of Personnel made an error in preparing an estimate of Claimant's pension entitlements; such an error cannot alter the parties' previously agreedupon pension Rules, especially because there is no showing of past practice or
acquiescence. The Carrier contends that a mere error cannot rewrite an agreedupon Rule, particularly where there is no showing of any consistent practice.
The Carrier therefore asserts that this Claim should be denied. The Carrier
finally contends that the parties' agreed pension Rules cannot be altered even
in one case on the basis of equity; the Carrier therefore asserts that this
Claim should be denied.
Form 1 Award No. 11087
Page 4 Docket No. 11061
2-SB-CM-186
With respect to the merits, this Board finds that it is truly unfortunate that the Claimant was a victim of this error; but under the rules of
the retirement plan, he is entitled to no more than the monthly benefit calculated in accordance therewith. This Board has no evidence that the revised
figure without the "window benefit" is incorrect; hence, we are without the
power to amend his monthly benefit. with respect to the arguments that the
Claimant suffered a financial loss as a result of the erroneous estimate on
the part of a Carrier representative, this Board is without power to award him
any additional payments. The Claimant was given an estimate at his request;
unfortunately, it was wrong. This Board has no ability to order the Carrier
to make up the difference between the wrongful estimate and the actual payment. This Board is not in the position to afford equitable relief. Hence,
the Claim must be denied.
In view of our holding on the merits, we find it unnecessary to
address the procedural issues raised by the Carrier.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
low
Attest:
41lancy J. 0er - Executive Secretary
Dated at Chicago, Illinois, this 3rd day of December 1986.