The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 193.1.
The Southern Pacific, Chicago and SL Louis Railroad Company began operating on November 9, 1989, as a result of the purchase of a portion of the former Chicago, Missouri and Western Railroad. On September 9, 1992, Carrier and the Organization entered into a Wage Agreement. Section 5 of that Agreement provided for payment of an annual bonus. Paragraphs (a) and (b) of Section 5 provided:
%%hen the 5500.0() bonus %s as not paid in January 1993, the Organization, on Februan 23, 1993. riled a claim on behalf of its 23 represented employees contending that it was due and pa%able, and alleging that Carrier had failed to provide the Organization with any data that the operating ratio had exceeded 90.1% in the preceding year.
The United Transportation Union has in its .agreement with Carrier, an identical bonus provision. When its members did not receive their bonus payments in January 1993, a sintilar claim was filed on February 15, 1993, contending that its Agreement was violated when the bonuses were not paid and it was not furnished proof of lack of achievement of the operating ratio.
On April 21, 1993, Carrier responded to the Organization's claim. The letter of response stated:
Further efforts by Organization to settle its boats claim were unsuccessful. However UTU's claim fared differently. In October and December 1993 that Organization and Carrier agreed that the claim would be settled by payment of a "Christmas bonus," upon the withdrawal of UTU's claim TRN 93-105 (the original claim filed on February 15, 1993 contending that the Agreement was violated when Carrier failed to pay the bonus and/or supply operating data supporting the notion that Form ( .award No. 31879
it exceeded an operating ratio of 90.1%). .additionally, at that time, Carrier paid a 5500.00 bonus to several Engineers, who worked from time to time in LRFU jobs, even though their Organization was not a party to any bonus arrangement agreements.
There are a number of aspects of this case that are bothersome to this Board. First we find that the language of the "Bonus Rule" is, without a doubt, ambiguous. Paragraph (a) of Section 5 uses the phrase "average operating ratio during each year." The Board is aware of what a yearly "operating ratio" is, but it is totally unaware of what an "average operating ratio each Near" would be. The Agreement does not describe what this term means. .end the parties have not told us what it was intended to mean.
This ambiguity is compounded by the language of paragraph (b). What is meant by "achievement of the 90.1% operating ratio?"
A second bothersome aspect of this case is the belated data Carrier furnished in its efforts to establish that the "average operating ratio" exceed 90.1% during calendar year 1992. This data, as noted from review of the above, is replete with estimates, overand under-ac charges, capital expenditures in the way of lease expense, etc. The chart accompanying Carrier's explanation denoted the items as "actual," however, the explanation indicates that the data were anything but actual.
It would seem that it would be a simple task to tally expenses and compare them to revenues and from the two develop a ratio between expenses and revenues. However, look at the comments on Freight Revenues (Carrier's April 21, 1993 letter, quoted above). Instead of simply stating what its revenues were in the period, Carrier obfuscated its income category with revenue offsets, higher per car switching charges, etc., that could well be placed in an expense category. It Is just impossible for the Board to make any sense out of what is stated here.
A third bothersome aspect of this case is the provision in the Agreement that the bonuses "shall become payable in January" but Carrier did not supply its belated data until several months later. A provision requiring that the bonus be paid In January, on an "average operating ratio" for the preceding year suggests that the data for development of the operating ratio is to be current data, and not that developed from belated factors or adjustments. Form I Award No. 31879
The fourth bothersome aspect of this case is the settlement Carrier made with fTU. The data it put for-*% ard in denial of TCU entitlement for their bonus would have to be the same data used to support any case it had with UTU. Yet it paid UTU a bonus.
:lad while it characterized the UTU bonus as a "Christmas bonus" the Board is not persuaded that this characterization was anything but a subterfuge, prete:tually designed to give the appearance of something other than it was, a settlement of UTU's original grievance. This is supported by the claim numbers used in the correspondence on the UTU claim and the agreement to pay a "Christmas bontts." Furthermore, this conclusion is supported by statements of UTU's General Chairman. But, most importantly it is supported by Carrier's final correspondence on the issue. In a letter dated December 21. 1993, Carrier wrote:
It is difficult for this Board to accept the notion that Carrier would pay UTU members a bonus. a bonus by any name, if some basic entitlement did not exist requiring such payment. When the payment of the so called "Christmas bonus" (and it should be noted that it was always referred to in quotes in the UTU - Carrier exchanges of correspondence) was conditioned upon the withdrawal of the claim seeking the same amount of payment under the TCIU bonus agreement, the notion that it was simply a good will gift becomes impossible to accept as factual.
But even so, Section 5 of the Clerks Agreement requires the payment of a bonus unless the "average operating ratio' does not exceed 90.1%. The development of the "average operating ratio," whatever that may be, is totally within the control of Carrier, as Carrier is the party that has initial access to the data necessary to develop such a ratio. Further Carrier is obligated to develop the "average operating ratio" early in Form I .ward No. 31879
January because the .agreement contemplates that the bonuses will be paid during that month. In this matter the data was not developed in a timely fashion, and in actuality it was not developed at all. The information that Carrier provided in April, suspect as it is, is at best, an "annual operating ratio," it is not, and does not purport to be an "average operating ratio." The agreement does not allow Carrier to use an "annual operating ratio" to determine the benchmark. It must use an "average operating ratio," whatever that may be.
Carrier is not privileged to avoid payment of bonuses it agreed to pay on the basis that its "average operating ratio" exceeded 90.1% unless it timely supplies the Organization with correct data that its "average operating ratio" actually exceeded 90.1%. Carrier did not provide this information to Organization, accordingly, the claim must be allowed as presented.
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 this Award is transmitted to the parties.