NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21076
William M. Edgett, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
( - Eastern Lines -
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL7831) that:
(a) Carrier violated the February 25, 1971 Mediation Agreement
by refusing to place D. R. Shepard under the protective provisions of said
Agreement.
(b) Carrier shall now pay D. R. Shepard any monthly displacement
allowance that he is entitled to under Article VIII, Section 6 of the February
25, 1971 Mediation Agreement, as provided for under Section 6 of the Washington Job Protection Agree
(c) In addition to the money aunts claimed above, Carrier shall
pay Claimant an additional amount of interest at ten percent (10%) per annum,
compounded on the anniversary date of each pay period, commencing July 23,
1973.
OPINION OF BOARD: Claimant seeks a displacement allowance under the pro
visions of Article VIII, Section 6 of the February 25,
1971 Mediation Agreement, because Carrier abolished and combined various
positions at Emporia and Chanute, Kansas. Carrier posted notice of the job
changes on May 15, 1973. At that time Claimant was the successful bidder on
a temporary vacancy on position No. 6088, Cashier-Chanute, Kansas. He was
displaced from position No. 6088 on July 23, 1973 by R.J. Sime, whose posi
tion had been abolished on June 15, 1973, as a result of the notice posted
by Carrier on May 15, 1973. Claimant displaced the highest rated position
his saaiority permitted him to obtain and wrote to Carrier advising it that
he had been adversely affected by the abolishment and inquired about payment
of a displacement allowance. Carrier responded that it was investigating the
matter and then on September 27, 1973 denied the claim for protective benefits
saying, in part:
"It has been determined that, as you did not obtain position
No. 6088 prior to November 1, 1972, you cannot be afforded
any of the protective benefits of Article VIII of the February
25, 1971 Mediation Agreement nor the Washington Job Protection
Agreement mentioned therein."
Award Number 21085 Page 2
Docket Number CL-21076
Carrier maintained the same position with respect to Claimant's
eligibility throughout the handling of the claim on the property. In its
submission to the Board, Carrier has taken a new position, not raised on the
property, and under a well-settled principle the Board cannot consider it,
and must decide the claim on the issues raised on the property.
Article VIII, in Section 3 makes provision for the combination of
work and functions and creation of new positions and abolishment of others
as a result of the combining of work and/or functions. Section 6 of Article
VIII reads:
"On and after the date rosters are combined under Section
1 of this Article employes on such rosters adversely affected either directly or indirectly as a res
abolishments resulting from the application of Section 3
of this Article, shall receive the protection afforded by
Sections 6, 7, 8 and 9 of the Washington Job Protection
Agreement of May 1936, except that for the purposes of this
Agreement, Section 7 is amended to read 100% (less earnings
in outside employment) instead of 607 and extended to provide
period of payment equivalent to length of service not to exceed 5 years, and to provide further that
Claimant is entitled to job protection, notwithstanding Carrier's
contention that he is barred from such protection because he- did not obtain
position No. 6088 prior to November 1, 1972. Claimant was clearly adversely
affected as a result of a job abolishment resulting from the application of
Section 3. Since that is so, as clearly specified in Section 6, he is entitled to the protection aff
Job Protection Agreement of May, 1936 (as modified by Section 6).
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was violated.
Award Number 21085 Page 3
Docket Number CL-21076
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
ExecuPA&4L.;
tive Secretary
Dated at Chicago, Illinois, this 28th day of may 1976.
Serial No. 291
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION N0. 1 TO AWARD N0. 21085
DOCIMT N0. CL-21076
NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employee
NAME OF CARRIER: The Atchison, Topeka and Santa Fe Railway Company
- Eastern Lines -
Upon application of the representatives of the Carrier involved
in the above Award that this Division interpret the same in the light of
the dispute between the parties as to the meaning and application, as
provided for in Section 3, First (m) of the Railway Labor Act, as approved
June 21, 1934, the following interpretation is made:
Carrier has submitted the following question to the Board:
Was it the intent of the Award that the interest
claimed in Part (c) of the Statement of Claim be allowed?
The answer to Carrier's Question is that it was not the intent
of the Award to allow the interest which was claimed in Part (c). The
Opinion of the Board discussed the claim, and the reasons for sustaining
it. There was no mention of the claim for interest, and there was no
intention of sustaining that part of the claim.
Referee William M. Edgett, who sat with the Division as a neutral
member when Award No. 21085 was adopted, also participated with the Division
in making this interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
'd
.0 0 0/1642V
Executive Secretary
Dated at Chicago, Illinois, this 17th day of June 1977.