PUBLIC LAW BOARD NO. 3540
Case No. 36
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
Brotherhood of Railway, Airline and Steamship
Clerks, Freight Handlers, Express and
Station Employes
VS.
The Chesapeake and Ohio Railway Company
"(a) That the Carrier has failed to properly'and fairly
compute the monthly protective benefits of the effected and
hereinafter named clerical employees under the March 15, 1981
Memorandum Agreement and based on the New York Dock decision,
(Finance Docket 28250 or 289051 when such employe had less than
twelve (12) months service with the Carrier on the effective date
of the Agreement and,
"(b) That the Carrier should now recompute the monthly
protective benefits for the effected employes to alleviate the
deprivation caused by the abbreviated protective period not
envisioned by the New York Dock decision, or the March 15, 1981
Memorandum Agreement for the hereinafter named clerks.
J.Y. Powell
S. W. Hayes
S. Cutchins
S.A. Shipley
P. Y. Mason
OPINION OF BOARD:
The relevant facts of
P.S. Harris
Y. A.
G.D. Descheemaeker
D.S. Jackson
R.Y. Spruill"
this claim are not in
Yrizarry
dispute. Claimants are 12 employees effected by the coordination
of clerical functions performed at Portsmouth, Newport News,
and Richmond, Virginia. Pursuant to the Memorandum Agreement,
effective March 15, 1981, covering the coordination of the
Seaboard
Cost Line
and the Chesapeake and Ohio Railway Company
clerical functions, Claimant elected the protective provisions
of the New York Dock Labor Conditions, Finance Docket No. 28250.
Case No. 36
Claimants each had less than 12 months of service with
Carrier on the effective date of the coordination, March 15, 1981.
On August 5, 1981, the Organization filed the instant claim
alleging that Claimants' protective benefits had been erroneously
calculated. Carrier timely denied the claim. Thereafter, the
claim was handled in the usual manner on the property. It is
now before this Board for adjudication.
The
organization urges
that Carrier's construction of
Section 5(a) of the New York Dock Agreement is erroneous as
applied to the'Claimants. It contends that Carrier erred in
calculating the test period monthly average on the basis of
12 months for those employes, who had less than 12 months of
service. In the Organization's view, this mode of calculation
artificially lowered Claimants' displacement allowance to an
amount well below the actual earnings for those months in which
service was performed.
The Organization urges that the language of Section 5(a)
clearly refers to the "average ...monthly compensation" as the
basis for the displacement allowance. According to the
organizations, Carrier should have calculated Claimants' test
period monthly average by adding the monthly compensation for
each month in which service was performed and dividing by the
actual number of months of service, rather than by 12. The
Organization urges that Carrier's construction is inequitable
and against the clear meaning of the language. Accordingly, for
these reasons, the Organization asks that the claim be sustained.
Case No. 36
Carrier, on the other hand, maintains that it properly
calculated the displacement allowance of all effected employes
within Section 5(al. Carrier notes that the Agreement provides
for the employe's displacement allowance to be "determined by
dividing separately by 12 the total compensation... during the
last 12 months." Carrier contends that the language of this
provision is clear and that this Board lacks the authority
to alter this plain meaning in order to remedy a subsequent claim
of inequity. Accordingly, Carrier asks that the claim be denied.
After careful review of the record evidence, We are convinced
that the claim must be denied. This is true for a number of
reasons.
First, Section 5 of the New York Dock protective conditions
clearly provides that an employe displacement allowance "shall
be determined by dividing separately by 12 the total compensation
received by the employe ...during the last 12 months...preceding
the date of his displacement." The language of this Section
supports Carrier's view. It is evident that Claimants'
protective benefits were properly calculated on the basis of
the 12 months preceding the displacement.
Second, We recognize that the Organization has advanced
a strong equitable argument. However, the language of Section 5
is clear. It makes no exception for those employees with less
Case No. 36
than 12 months of service at the effective date of the coordination.
While this result may be harsh, it is not within our province
to alter the meaning of Agreement language in order to achieve
a result unintended by the parties. (See, Third Division,
Award Nos. 23884 and 22310). Accordingly, and for the foregoing
reasons, the claim must be denied.
Case No. 36
FINDINGS: The Public Law Board No. 3540 upon the whole record
and all of the evidence, finds and holds:
That the Carrier and the Employees involved in this dispute
are respectively Carrier and Employees within the meaning of
the Railway Labor Act as approved June 21, 1934;
That the Public Law Board No. 3540 has the jurisdiction
over the dispute involved herein: and
That the Agreement was not violated.
AWARD:
Claim denied.
v
R.A. ca a etti,
Employe Member
Marti F "cchenman,
Neutral Member
4G
Ll/t-vt'/ "
Richard P.
Byers, C r~rier
Member