In the Matter of Arbitration, between:
INTERNATIONAL BROTHERHOOD OF ELECTRICAL, WORKERS

and

 CSX TRANSPORTATION, I NC.

Decision of Arbitration Goauaittas

pursuant to Article I, Sect ion 11

of the

New York Conditions (350 I. C. C. 60 ( 1 979> )

Imposed by the Intsratnte Coa=orce Commicalon

in

Finance Docket No. 28905 (Sub No. 1)


John C. Fletcher, Chairman h Neutral ember

 C. A. Meredith , Employee Member IBEV, System Council No. 6
7 NC R OD LX TI ON:

 October 9, 1990

 R. D. Hiel, Carrier Ylemb.er CS'SC Transportation, Ins.

 On January 26, 1987, Carrier aQrved notice on the Organization, pursuant to the provisions of the September 25, 1964, National Agreement of its intent to transfer certain mechanical work f ram It& Louisville, Kent ucky shops t o Corbin, Kentucky. Five months later, to the day, en IaiplQmonting Agreement was reached, which provided that New York Dock Conditions, (Now York Dock RailwnY Goa_S__rol - 9rooklyn Eastern
 1V Y0 Arbi t ra t .
MGxGihan ;
p strict Tertninal. 360 I. C. C. 60 (1979) ), would be applicable t the transaction.
Mr. C. T. McKeehan, the herein Claimant, retained seniority in the Electrician's Craft at Louisville, Kentucky. However, at the time of the transaction he vas working as a non-agreement Supervisor at Carrier's Evansville,, Indiana Locomotive Shop. In late 1987, Carrier downsized its non agreement Supervisory work force. McKeehan, because of his relatively low ranking in this group, was released from his Supervisory position. On November 12, 1987, he exorcised his Electrician's Craft seniority.
McKeehan vas allowed to place himself at Corbin. HQ vas advised that his Test Period Average, for protective pay purposes, would be computed in the following manner:

 I n order t o comput a what your protected rate would have been if you had bean an electrician at South Louisville at the tune of the transfer of work to Corbin, we have requested tho.Tert Period Averages computed at the time of the coordination for the contract employees im-diately above and below you on the seniority roster. An soon as that 1 of oraet i on i s available, tags trill take an average of those two Test Period Averages and that amount will be used as your guarant es rate. Thi s uri11. not be equivalent to your supervisory rate of pay.

 The Organization filed a protest to this method of computation of McKeehan's Test Period. It asked that his Test Period be determined as provided in the second paragraph of Section 5(a) of the Conditions.

 It is the parties disagreement on the method of establishing Mr. McKeehan'c Test Period Average which is the dispute before this Arbitration.
Pant 2 of 13 a~i cPa
 QUESTI ON AT I SSUE:

 matter to

 NYD Arbitratso
XcXeehan TP.
The Organization fashions the Question at Issue in this be:

 (1) Is Electrician C. T. XcKaehen entitled to a Test Period Average under New York Dock derived free his earnings received in the twelve (12) months i n which he performed services immediately preceding the date of his displacement?
C2) As en employee protected under New York Dock, what is the amount of the Test Period Average for Electrician C. T. 1·lcKaehan?

 While Carrier fashions it slightly different:
Was the Teat Period Average of Corbin, Kentucky,
 Electrician C. T. MGXeshan properly arrived at by the Carrier's method of computation?

 There are no procedural or jurisdictional i .npeditftents to an award on these questions.

 THE POSITION OF THE PARTIES:

 The Position of the Organization:

 The Organization contends~that the only proper method of computing Mr. McKeehan's Test Period Average is to literally follow the method set forth in Section 5 (a) of the Conditions. In doing so, it argues, Carrier must consider Claimant's earnings received in the twelve months in which he performed Carrier service 1=4diately preceding the Date of hi: displacement, which must include his earnings as a non-agreement supervisor.

 The Organization argues that Carrier's suggaatad method of establishing Claimant's Test Period Average, averaging the earnings of the individuals above and below McKeehan and averaging these results to determine his TPA is arbitrary and without basis under the Implementing Agreement or the Conditions.

 Po,Te 3 o! 13 'De Qes.
 v.

 NYD .(rbi t re I i
McA'eehen i.
7n support of its position the Organization relies upc
 n number of Awards of various tribunals, but mainly it bottoms
 its cast on New York Dock Arbitration, TC;U y. LIZ.,- Stallworth,
 Arbitrator, (February 28. 1989), which concluded that:

 The proper method for computing fast period overages is to include both egreeme,pt and non agreeemnt compensation earned during the test period.

 The Organization asks that this Arbitration establish Claimant's TPA et $3,475.00 per month. (his average monthly compensation as a supervisor), plus Increases.

 The Position of the Carrier:

 Carrier contends that Claimant, (as a promoted employee returning to the Craft subsequent to the Coordination), derivos entitlement to protective benefits from language within tht Implementing Agreement which only convoys:

 ,.. whatever rights (he) >any have had if (he) had boon present et the tiae of the coordfnat ion.

 The contemplates treating McKeehan as nn Electrician and not as a non-agreement Supervisor when developing his TPA.

 It argu" that the way it .developed McKQehan' s TPA was consistent with prior arbitration Awards on the subject. Carrier cites a number of decisions on the subject, with particular emphasis on sward 433, SBA 603, Eischen, Rsfaree, (May 21, 1984>, stating:

 I t 3 r unreasonable to tho point of abaurdi ty to conclude that the official position worked, irrespective of compensation, should estebliesh the protected rate which is the quid pro quo for continued (rosumed) employability under the BRAC Agreement.

 Carrier disputes that the award of Arbitrator Stallworth, relied on by IBEW, la appropriate because if it is followed non-agreement Supervisory omployoea returning to thQir
Pe.Te 4 of 13 nnooa.
 Craft would receive more than:

 ... whatever rights they nay have had if
 thoy had been present at the tire of the coordination.

 I t contends that the averaging enathod used in determining Claimant's TPA was equitable and proper in circumstances present in this case.

 DISCUSSION:

 NYD Arb1 tratlon
McXvehen TPA
the
This teat involves the correct method to be used in establishing Test Period Averages of an Electrician who performed no service within his Craft In the twelve month period irrmedietely preceding his return to his Craft and subsequent inclusion within coverage of New York Dock protection. The issue is whether his TPA should be based on compensation *armed in a non-agreement Supervisory position or if it should be based on nn average derived from the earnings of the two individuals ~im..^;ediatcly above and below him on the seniority roster. (Carrier indicates that it has been unable to develop .any earning data on Mckeahan as an Electrician because of the length of time he has bQQn away from Craft and the unavailability of payroll records back that tar.) .

 It is our opinion that Hr. McKeshan's TPA must be developed in the manner prescribed in Section 5 (a) of the Conditions. Support for any other method of development, no matter how equitable it may appear, to some, simply cannot be found in the language of the Implementing Agreement or in the provisions of the Conditions, Moreover, as will be discussed in more detail below, prior erbilrstion authority supports the contention: of the Organization on this point end not those advanced by Carrier.

 The language contained in Section 5(n) has been in place since 1979. And even before that similar, if not identical, language appeared in Section 6 of the May 1938, Washington Job Protection Agreement, which, by all accounts, wet the precedent establishing forerunner for !ha I. C. C. ' s earlier, Oklahoma, New Orleans and Southern-Contral of Georgia, Employ**

 Paz& 5 of 13 DeqAs.
 NYD Arbitrats<
HCXBOhan ?'J
Protective Conditions, required to be imposed in abandonment and merger transactions by Section 5 (2) (f) of the Interstate Commerce Act. From time to tune negotiators in drafting employe protective and implementing agreements have altered the formula established by w.TPA Section 6 and/or sect ions of I. C. C. employee protective conditions, to Suit their situations, byt this we* no, done in the transaction under review here.
The fact that the parties to the Implementing Agreement did not, intentionally or unintentionally, sea fit to alter, what others have termed "the straightforward language of Section 5(a)", as it concerns the establishment of Test Period Averages, !rust be given great weight and precludes subsequsnt alteration, on our part thru the Arbitration process, on the basis that one party now considers that a literal application of a TPA under the formula provided would be lacking in equity.

 This Carrier and this Organization spent five months, frota th! date notice was given to the date the Implementing Agreement was signed, with the Louisville - Corbin transaction in an active negotiating status. While it !a understood that in that period full time negotiations did not occur, it ie clear that considerable thought, nevertheless, went into the process. of drafting a suitable Implementing Agreement. The resulting . product of these efforts is thoroughly detailed and contains no less than 23 side letters covering almost every imaginable subject and/or. contingency. It is notable that while the negotiators saw fi't to modify soar provisions of Hew York Dock, the TPA development formula provided in Section 5 (a) was left unchanged.

 IHEW Letter No. 13 to the Implementing Agreement clearly provides that non-agreement Supervisors who lose their jobs involuntarily spay exercise seniority rights back into their Craft and be entitled to whatever rights they would have enjoyed if they had been present at the time the coordination occurred. When this provision was included within the Agreement it should have been apparent to all involved in the negotiations that such employees were receiving rates of pay greater than employees

 working exclusively within the Craft. The parties were, we are certain, also aware of the language of Section 5 (a) of NYD Conditions on development of TPA's.

 Page 6 of 13 pages.
 v.
NYD Arbj t ra t t a
McKeehan TP.
However, they did not see fit to provide new and different language altering the TPA development formula in such circumstances. It would be an affront to the Arbitration process to do so for them now. Especially since we are not being asked to interpret intent of the parties or obviously ambiguous language. but, instead. are being asked to sidestep "straight forward language" because it is perceived as lacking equity.

 Carrier contends that its development of Mckeehan's TPA is consistent with prior arbitration Awards on the subject. It stress adherence to the result of SSA 605, Award No. 433. We do not find Award No. 433 faulty or inappropriate in the circumctances present there. However, we have difficulty in accepting it as precedent in our, case because of two critical factors.

 First it should be observed that compensation guarantees in the February 7, 1965, Agreement are bifurcated. Regularly assigned employees are protected with regard to their normal rate of compensation as i t existed on October 1, L964, (plus increases). Other than regularly assigned employees are protected with a monthly displacement allowance. developed somewhat similarly to those under Section 5 Ca) of NYD. However, the parties to the February 7, 1965, Agreement, the controlling instrument involved in Award No. 433, adopted several interpretative Questions and Answers which clearly expressed their intention to exclude certain non-Craft employment which may rave occurred sarlier. One question, f.or example was:
credited

 seem that

 Quest ion No, 9 : Can employment in sore than one craft be counted in determining protected status?
An,ever to Question No, 9; Ordinarily not however, in cases such as promotion of a telegrapher to train dispatcher, prosyotion of a clerk to yardmaster, etc., where the seniority in the craft from which promoted is retained, employment in the higher claaaificaiton `rill bs counted.
If service in another craft would not ordinarily be under the February 7, 1965, Agreement, it would also the earnings received in that craft would not be used
 RYD Arbitration
McKeehan 7PA
in development of TPA' s, But in those instances where such other craft service was to be counted, the parties to the February 7, 1965, Agreement developed n computation procedure which met this contingency. Their solution is found in the Answer to question No 1, reading in part:

 To thv extant that an employs whose guarantee is governed by Suction 2 of Article IV has compensated service in such other craft, such service will also be included in determining the base period average earnings and hours paid for. However, his base period average monthly earnings shall be computed by taking his average hourly earnings in the base period in the craft in which he i s protected (adjusted t o include subsequent general wage increases), multiplying by the total number of hours paid for in the base period in both crafts and dividing by 12.

 It is not our purpose here to interpret the February 1965 Agreement, but, it seems that the Answer to Question No. 1 established a formula. where the hours worked in the other Craft are added to the hours worked in the protected employees Craft and both are used with the avarago hourly earnings frost the Craft in which protected to develop a TPA. No such similar agreed to interpretation exists with respect to Section 5 Ca) of New York. Dock or the Juno 26, 1'987, Implement.ing Agreament, perhaps because the Condit-tons and the Implementing Agreement do not specifically exclude Carriar earnings from sources outside an employees Craft, which appears to be the case, for the most part, under the February 7, 1965 Agreement.

 Each of the other awards from SBA 605, submitted by Carrier as support for its contentions. have been carefully reviewed. They are determined not to be controlling because of the special interpretations placed on the February 7. 196'5, Agreement, and there are no similar understandings in plac& for NYD and the Implementing Agreement, with regard to Section 5 ca), which we are aware of.

 Page 6 0 f 13 Dd,Q98.
 IBEW
v.
NYD ArbJ t ra t i i
NcXtchan Ti
Carrier also has aupplied Award 1, SBA 860, Seidenberg Referee. CNovember 20, 1976), dealing with a dispute over base period compensation and time paid for under the 1966 Penn-Centre Verger Protective Agreement. It is from the novel remedy generated in this Award that Carrier developed its peer averagir, concept which it seeks to apply to Mckeehan's situation. Award t, SSA 860 cannot stand an precedent here because language of th, UTU Merger Protective Agreement, under review there, detailed which service would count and provided special considerations on periods while absent on leave for union business as well as time working as an official, supervisory or in a fully excepted position.

 For example the UTU Penn-Central Merger Agreement developed train service employees test periods from

 ... the individual's average monthly compensation for the last twelve months in which he performed service in ernin service, ...

 A similar provisions is not present in the language of the Conditions being reviewed here.

 Carrier has stressed that by using language reading:

 shall be entitled to whatever rights they may have had if they had been .present at the t ima of the coordination.

 in the Agreement and Side Letter 13, it is manifest that'it was the parties intention to treat returning non-agreement Supervisors as if they had worked in the Craft in the 12 months preceding the coordination that they would only be protected et the le=vel of compensation they would have received it they had worked in the Craft during that time.

presented, which i t i s not, TPA's would still have t o be developed in accordance with the procedures provided in the Conditions, which the parties did not modify. This procedure requires examination of the earnings and hours in the preceding 12 months and taking the "total compensation" received and divide

 Page 9 of 13 DA?At.
 NYD Arbs t ra t I o.
McKeehan 7p,
this number by the "total time paid for." This formula does not provide an exclusion of earnings received in higher rated service and it d oas not provide for an exclusion of earnings received in lower classes of service. The formula is arbitrary - providing for no exceptions of any type, and while some array argue that it is not equitable to protect a demoted Supervisor at his higher rate others may argue that a recently promoted Journeyman Mechanic is not treated equitably when lower rated helper or apprentice service would be counted. But, regardless of which perspective of equity end fairness is considered, the formule is there, and that is what must be followed, unless the parties saw fit to alter its language. A situation not present here.

 However, if a general statement indicating that returning Supervisors are to be entitled to whatever rights they may have had if they had been present at the time of the transaction. was intended to provide a different formula for developing TPA's it would have been quite simple to include this formula within the text of the Agreement. This of course was not done. This omission forces a conclusion that returning Supervisors are entitled to have their TPA's computed as provided by the language of Section 5(a) as if they had been present at the time of the coordination. This computation includes "compensation earned" in the preceding 12 months.

 Many of Carrier's arguments here are similar to those considered and rejected in New York Dock Arbitration T,CIU v. UP, Stallworth, Arbitrator, -(February.28, 1949). In that cage the contentions of the parties were stated to be:

 The Carrier contends that for purposes of calculating a Claimant's test period earnings, the Claimants nay not include compensation earned in non-agreement positions. The Organization argues, however, that the New perk CQndi t i one require the benefits t o be based upon the total compensation during the preceding year including non-agreepent earnings.

 The decision of the Arbitrator held:

 The Committee concludes that the literal language of there sections CArticle 1, Sectiona 5(a) b 6ta)) should be applied, and that all of Claimant's

 Page 10 of 13 pe,4-as.
 IBE6,
v.
NYD .1rbi tretsa.
McJCaehen TP.
earnings with the Carrier during the prior y4ar, whether from agreement or non-agreement positions, are to tae included in the teat period earnings.

 As the Organization points out, the language of these sections sets forth a formula for calculating monthly allowances based upon "total compensation" in the service of the Carrier "during the last twelve months .., immediately pracAding the data of his displacement as a result of the transaction." The Comauttee concludes that the literal language of this section requires the Carrier to calculate benefits based upon ell the gobs, agreement and non-agreement, held by an affected employee in the service of the Carrier for the year prior to the transaction.

 It Is our view that this is a correct interpretation of the New York Dock Conditions. As such it will be applied to the snot t er under review here,

 that:

 One additional point. TCT.U v. UP, tsupra), also stated
The Committee is hound to apply the literal 1 enguaga of the New `t'or Cond i t 14n,s. unless the Carrier can shoo a compelling reason why this straightforward interpretation dons not reflect the actual intent of the Parties.

 Carrier argues that in our case a'"compelling reason" to use a different method of computing Claimant's TPA is that by protecting his non-contract rata of pay he would be receiving far more than whatever rights he may hove had if he had been present at the time of the coordination.

among other things, it operates from an easumption that it is

 "rate of pay" which is the factor bring protected. "Rate of pay, is not the element of protection; "compensation" is the term that is used and that is the element an which protection must be based.
 v.

 NYD Arbitration

 McXeehen TPA
Additionally, notwithstanding Carrier's contentions when this wetter was being reviewed on the property and notwithstanding its arguments before this Arbitration, we have no persuasive showing that et the time the Implementing Agreement was under consideration end in negotiations the parties ever intended that Section 5 ta) ever be applied other than literally as written. Accordingly, Carrier has not shaven a compelling reason why the straightforward language of Section 5Ca> should not be applied to the development of Mckeehen'a TPA.

 Finally, it should be observed that Carrier insists that the Award in TGIU v. UP is in error. However, it does not city a single other authority in which unaltered NYD Conditions era scrutinized end a different result is reached. As discussed above, each authority submitted by Carrier involved language which could fairly be interpreted to support the conclusion reached. These decisions, though, cannot be viewed as controlling in this matter because of the existence of _ significant language differences between the Agreem-enta studied in those case end the Conditions under review here.

 On the totality of the entire record we are compelled to cake nn Award in favor of the Organization.
 NYD Arb1 t re t 1 on
McXeehen TPA
The Question at Issue posed by Carrier Is onswer*d, No.

 Question 1, posed by the Organization is answered:

 Electrician C. T. McKeehan is entitled to haws his Test Period Average under New York Dock Conditions include all earnings received in the twelve soonth period in which ho performed service immediately preceding the date of his displacement, including earnings he received while working as a non-agreomcnt Supervisor.

 Question 2, posed by the Organization la answered:

 Electrician C. T. McKeehan shall have his 'feat Period Average determined by dividing separately by 12 the total compensation received and the total time for which he was paid during the last 12 months in which ho performed service immediately preceding the date of his displacement.

 J ohrTCHER, 1 t rat or
 Chairro,an end Ne al Member

 C. ^. Meredith, General Chairman
 Employsa Member

 gated at Mt. Prospect, IL. ,

 R. D. Hits!, Manager Labor Ro:otior,s Carrier Member

this 3rd Day of October, 1990.