Effective August 15, 1992, the Carrier instituted a transfer of work under the September 25, 1964 National Agreement which thereafter decreased the need for the Claimant to fill Foreman vacancies and earn overtime. The Organization's claim for displacement allowance based on the loss of overtime availability attributable to the transfer of work was denied on the property.
There is no dispute on the basic facts. The Carrier gave notice on May 12, 1992, that it intended to transfer work from Havre, Montana, to sites in Minnesota, Nebraska, and Washington. On June 12, 1992, the Carrier and Organization entered into an Implementing Agreement which stated that:
The Organization argues the applicability to the Claimant of Section 6, supra. The Organization maintains that the Claimant was placed in a worse position following the transfer. The Carrier significantly increased the ratio of Foremen to employees at Havre and thereby placed the Claimant in a worse position with regard to wages. The Organization thereafter argues entitlement for a displacement allowance based upon Claimant's full earnings. Claimant's full earnings included compensation as a function of filling supervisory vacancies as the designated Relief Foreman.
The Carrier denied the inclusion of the Claimant's earnings as a Relief Foreman. The Carrier argued on property that the Claimant held a Laborer's position at the time when the transfer under the Implementing Agreement occurred. Subsequently the Claimant could have used his seniority to bid to a higher rated Truck Driving position, but displaced to a Hostler Helper position. Regardless of choice, the Claimant earned more after the transfer of work than he had previously earned as a Laborer. Claimant was therefore not adversely affected and not due displacement allowance. As for the argument that the Claimant lost compensation from his inability to fill supervisory vacancies, the Carrier argues that the ^... work performed by Foremen in the Mechanical Department is not Laborers' work per the Agreement ...."
It is evident from this record that the resolution must rest upon the Implementing Agreement and the language of the September Form 1 Award No. 13004
25, 1964 Agreement. The Carrier's arguments are that the two Agreements stand between the organization and the Carrier and cannot include earnings obtained outside those Agreements. As stated:
The Organization argues that the Carrier should compute as part of Claimant's displacement allowance all compensation earned. The Organization maintains that the Agreement contemplates such earnings into the computation of displacement allowance from what was earned by the Claimant in filling supervisory vacancies.
First, the Implementing Agreement contains no applicable language written to exclude said income from compensation. When the Implementing Agreement was negotiated, it referred only to entitlement as guaranteed under the protective provisions of Article I of the September 25, 1964 Agreement.
The September 25, 1964 Agreement has been studied. Section 5 has language relating to being placed in a worse position "with respect to compensation." There is no exclusionary provision denying applicability or restricting applicability as the Carrier argues. Section 6(a) states that:
Sections 6 (a) (b) and (c) of the Washington Job Protection Agreement of May 1936 as governing benefits determines displacement allowance by calculation of "total compensation" during the last .12 months. Section (c) carries no exclusions as the Carrier desires. The language of Section (c) could have easily excluded this income if the parties had. desired or such could have been eliminated by the Implementing Agreement.
they are not on point. Public Law Board No. 5457, Award 1, for example, excluded abnormal earnings, but supports applicability of average overtime earnings.
The facts here demonstrate that the Carrier reduced as a part of its transaction the supervisory force at Havre. There is no dispute in the record that the Claimant was allowed to fill Foreman vacancies until the transaction. Thereafter, there was an excess, of Foremen available to fill vacancies and the Claimant could not. In short, the Claimant was placed "... in a worse position with respect to compensation." As this was the case, he was entitled to a displacement allowance which by language of the Agreement considers "total compensation" received and has no written exclusions.
The Awards presented by the Organization are on point and applicable. Those Awards have been studied and the language of Appendix C-1 Arbitration and New York Dock Arbitration, Section 5(a) have similarly held that compensation includes all earnings earned in the previous twelve months. The language of those protective Agreements and the September 25, 1964 Agreement are similarly written and applicable (see New York Dock Arbitration, Arbitrator Fletcher, CSX and IBEW, 1990).
The Board holds that it has no authority to write exclusions or by way of interpretation introduce exclusions not created by those negotiating the Implementing Agreement. Such exclusions could easily have been included. The provisions must be given the meaning of the negotiated language. The language does not discuss rates of pay or a Laborer's position, but the employee's total compensation. While the Claimant has no entitlement to exempt work, he has an entitlement under the protective Agreement to protection from the Carrier's transaction. When his "normal" compensation for work performed over the previous year includes regular and consistent voluntary overtime in another craft covering supervisory positions which are no longer available due to Carrier's action, Claimant is due compensation. The claim must be sustained. The Claimant is to be compensated as if he held the highest rated position his seniority would have allowed.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.