Several of the Claimants engaged in multiple moves between and among positions during the calendar year that they voluntarily bid down to lower-rated positions. Claimant Muchow, apparently, went back to a Truck Driver position on October 9, 2000 and remained on that position for the remainder of the year. Claimant Banks reverted to a Group 2 Machine Operator position on March 9, 1998. Claimant Roberts, on or about April 26, 1999, bid back to a Foreman position. Claimant Vandergriend was back on a Foreman position on or about October 31, 1998. Claimant Hiatt evidently went to a Foreman position from the Group 3/4 Machine Operator position on April 27, 2000. On the other hand; Claimant Huss evidently stayed on the Group 3/4 Machine Operator position for the remainder of 1997. Claimant Fenhaus remained on a Group 314 Machine Operator position for the rest of 1999.

As stated at the onset herein, the issue concerns whether the Carrier could adjust the protected rates of the Claimants pursuant to Article IV, Section 3 and, if so, were the Carrier's adjustments proper?

Neither Article I, Section I nor Article IV, Section 1 of the February 7, 1965 Job Stabilization Agreement, as amended, references multi-rated employees or employees protected by multiple guarantees varying by month. Before Award No. l of Special Board of Adjustment

No. 1087, the sole mention of mufti-rated employees was one agreed-upon question and answer, that is, Question and Answer No. 3 to Article IV, Section I .

Award No I of this Board ruled that a mufti-rated employee has only an annual claim for protective benefits. In addition, Award No. I clearly adjudged that a mufti-rated employee is not bound to work on any given position during any particular month. Moreover, the term "regularly assigned position" in Article IV, Section I is not synonymous with the word "job" in Article IV, Section 3. Therefore, mufti-rated employees are not susceptible to being placed within the scope of Article IV, Section 3.

More significantly, mufti-rated employees are not subject to Article IV, Section 3 because the annualized guarantee was established by exercises of seniority to a variety of positions. During the year that was used to determine their guarantees, the mufti-rated employees exercised their seniority, both voluntarily and involuntarily, from position to position, up and down on the wage scale.. Claimants may have voluntarily bid to a lower-rated position during the year used to determine their protection and that rate now comprises the employee's mufti-rated protected guarantee for one or more months. They should be able to engage in the same activity in any subsequent year, The Carrier's position ignores the special status of mufti-rated employees. What a mufti-rated employee does on a particular day is irrelevant to a claim for protective benefits. Therefore, both agreed-upon Question and Answer No 3, as well as the holding of Award No. 1, contemplated that mufti-rated employees would continue to move from job to job and thus, not be subject to Article IV, Section 3.

The Carrier mistreated some of the multi-rated Claimants when it reduced their guarantees merely because they voluntarily moved to lower-rated positions for just a few days. While these voluntary bids may have consequences regarding the amount of compensation the multi-rated employees are entitled to receive based on their annual claims, the movements cannot possibly cause a permanent reduction in their protected rates. Indeed, the Carrier's position is inconsistent. Even after it reduced the protected rates for seven Claimants down to a single rate for 12 months, it continued to label them multi-rated employees.

Alternatively, Article IV, Section 3 cannot rationally apply to a Claimant who voluntarily bids to a lower position than the one he held so long as the lower-rated position comprises one protective rate among all the protective rates for that Claimant- Many of the Claimants herein bid for jobs having pay rates that were equal to or greater than one of their monthly multiple guarantees.

In sum, Claimants are immune from having their protected rates permanently reduced albeit, the compensation due some Claimants may be partially offset as a result of voluntary bids to lower-rated positions.

Multi-rated protected employees establish guarantees based on the formula in the agreedupon Question and Answer No. 3 to Article TV, Section I of the February 7, 1965 Job Stabilization Agreement. These multi-rated employees are not Article IV, Section 2 seasonal employees and thus, they fall within the ambit of Article IV, Section 3. Question and Answer No. 1 to Article IV, Section 3 plainly announces that employees who voluntarily bid to a lower-rated

position suffer a permanent reduction to their guarantees according to the rate of the jobs to which they voluntarily bid. Claimants herein, after 1996, voluntarily bid to lower-rated jobs. In accord with Article IV, Section 3, the Carrier reduced their protected rates to the rates of the positions to which they voluntarily bid, for all months where the original protected rates were higher than the rates of the positions to which they bid.

If the Board adopts the Organization's interpretation herein, multi-rated employees would be free to bid to any job that they wanted without any change in their protected rates, which is specifically forbidden by Question and Answer No. 1 to Article IV, Section 3. The Job Stabilization Agreement, as amended, grants employees generous benefits and, in exchange, the employees must voluntarily exercise their seniority to maintain pay rates at or above their protected guarantees.

The Organization improvidently wants to convert multi-rated employees into seasonal employees. However, Award No. 1 of Special Board of Adjustment No. 1087 clearly held that the multi-rated protected employees were employees covered by Article IV, Section 1, as opposed to Article IV, Section 2. If their protected guarantee is established under Article IV, Section 1, then multi-rated employees are presumptively subject to Article IV, Section 3. Thus, Award No. 1.5, of Special Board of Adjustment No.. 1087 is irrelevant to this dispute. It is true, that like seasonal employees, multi-rated protected employees have their protected benefits calculated and paid at the end of the calendar year but this does not diminish their obligation to exercise their seniority to positions at or in excess of their guarantee to avoid incurring a reduction to their guarantees.

It is also true, as the Organization states, that the protection (for some months) for the multi-rated employees was likely based on voluntary seniority moves. Some monthly protected rates were likely predicated on involuntary seniority moves. Nevertheless, the establishment of the protected guarantees is immaterial to what a protected employee must do after becoming protected to preserve the employee's original protective rates.

To reiterate, in exchange for the generous protective benefits, a multi-rated employee, protected at tire Foreman's rate, cannot voluntarily move to a Sectionman position and maintain guarantees for one or more months at the Foreman level. The February 7, 1965 .Job Stabilization Agreement, as amended, protects employees from adverse actions created by the Carrier as opposed to adverse actions created by the employees. It is absurd that a multi-rated protected employee, who has 11 months protection at the Foreman rate and one month of protection at the Group 2 Machine Operator rate could sit in a Sectionman position for 12 months and still receive the difference in pay between the Foreman's rate and the Sectionman's rate for 11 months of the year and the difference in pay between the Group 2 Machine Operator rate and the Sectionman rate for one month of the year.

In sum, the Carrier properly reduced the guarantees of all Claimants due to their voluntary bids from higher-rated positions to lower-rated positions.

The initial question before this Board is whether the multi-rated protected employees are subject to Article TV, Section 3 of the February 7, 1965 Job Stabilization Agreement, as amended. For the reasons cited below, we conclude that the multi-rated protected employees are not

immune from a possible permanent reduction in their protective guarantees pursuant to Article IV, Section 3.

First, some mufti-rated employees undoubtedly bid down during the year used to establish their monthly guarantees so that the guarantee for some months may have been the result of a voluntary exercise in seniority to a lower-rated position. However, it is equally plausible that a non-mufti-rated employee could have voluntarily bid down to a lower-rated regularly assigned position prior to the date used to fix the non-mufti-rated employee's protected rate. Therefore, there is not any logical reason for creating a distinction between mufti-rated employees and nonmufti-rated employees merely because the former may have voluntarily bid down during the year used to establish their protection.

Second, insulating mufti-rated employees from the operation of Article IV, Section 3 would confer preferred status on the mufti-rated employees and place non-mufti-rated employees in an inferior status. Under the Organization's interpretation, a mufti-rated employee could voluntarily bid down to a very low rated position (a position having a rate lower than any of the employee's protective rates) and, at the end of the year, collect the difference between his multiple, monthly protective guarantees and his annual compensation. On the other hand, a nonmufti-rated employee would have his protective rate permanently reduced and would collect no protective benefits.

Third, the genesis of mufti-rated employees is agreed-upon Question and Answer No. 3, to Article IV, Section 1. At the same time, the parties agreed to Question and Answer No. I under Article IV, Section 3. The latter is unequivocal, Question and Answer No. I clearly states that an

employee's protection shall be reduced when the employee voluntarily bids to a position with a lower rate than the position that the employee holds. Having just created the special category of mufti-rated employees, the parties could have easily written an exception in Question and Answer No. 1. The absence of any exception is strong evidence that the parties did not intend to immunize mufti-rated employees from Article IV, Section 3.

Fourth, the opening clause of Article IV, Section I plainly provides that the terms of Article IV, Section 3 apply to all employees covered by Section 1. As stated earlier, mufti-rated employees are Article IV, Section 1 employees.

The answer to the threshold issue is that Article IV, Section 3 applies to mufti-rated protected employees.

In Award No.. 1, this Board could not foresee the ramifications of devising a complex formula for determining whether an employee was rnulti-rated and, if so, the multiple protected rates for that employee. The Board was undoubtedly trying to fairly and reasonably implement the intent and spirit of Question and Answer No. 3 to Article IV, Section 1. Award No. I gives us little guidance other than, due to the nature of establishing protection for mufti-rated employees, the application of Article 1V, Section 3 cannot precisely emulate what happens to non-mufti-rated employees. The goal of this Board is, to the extent feasible, replicate what happens to non-multirated employees with certain modifications necessitated by both the manner in which mufti-rated employees establish their protection and the fact that their entitlement to protective benefits is determined annually. Where it can be safely determined that a mufti-rated employee is in a situation identical to a non-mufti-rated employee, both employees must be treated the same. 1n

some situations, the nature of the establishment of the protection and the annual analysis necessitates that the mufti-rated employees be treated in a separate and distinct fashion with regard to the application of Article IV, Section 3.

Rather than engaging in an intricate discussion of each of the eight Claimants, the Board will provide the parties with guidelines for applying Article IV, Section 3 to mufti-rated employees.

Let's say a Hypothetical Mufti-Rated Employee (HM-E) has original protection as follows:

I. Four months at a $20 an hour position;

2. Three months at a $18 an hour position; and,

3. Five months at a $16 an hour position.

NOTE: For purposes of determining possible forfeiture of protection under the February 7 Agreement, and in line with the concepts contained in SBA 1087.4ulard No. 1, Question 3, the majority of a calendar month a mufti-rated employee worked at a particular rate will be used to identify the position the employee was assigned to for the entire calendar month, unless, of course, the employee is not retained in service a majority of the calendar month. Likewise, this same principle will be followed in identifying a position involving one of the protected employee's mufti-rates that a junior employee(s) held for the calendar month.

Scenario A: At any time during the year, the HME voluntarily bids for, and is awarded, a $15 an hour position and, at the time of this assignment, the HME holds a position with a rate more than $15 an hour. The protected rate for the

HME becomes 12 months at $15 per hour. Under this scenario, the HME is treated exactly the same as a non-mufti-rated employee with regard to the operation of Article rV, Section 3.

Scenario B: During the first two months of the year, the HME works a $20 an hour position. On March 1, the HME voluntarily bids down to a $16 an hour position. The HME holds the $16 per hour position for four months. The HME then voluntarily bids for a $20 an hour position and holds this position for the remainder of the year. The voluntary bid down does not have any effect on HME's monthly, multiple protection levels. His protection remains four months at $20; three months at $18; and, five months at $16 because, he did not voluntarily work for more than five months in a $16 an hour position or for more than three months in the $18 an hour position at the expense of being able to work in a $20 an hour position.

Scenario C: During the first three months of the year, the HME works a $20 an hour position. On April 1, the HME voluntarily bids down to a $18 an hour position. He stays in the $18 an hour position for the remainder of the year. If it can be demonstrated that, but for the voluntary bid down, the HME would have been able to hold a $20 an hour position during one more month of the year (it does not matter which month), then his $20 protected rate for one month is permanently reduced to $18 an hour. The HME would end up with protected rates of three months at $20 an hour; four months at $18 an hour; and, five months at $16 an hour.

Scenario D: During the first five months of the year, the HME works a $22 an hour position. On June 1, the HME voluntarily bids down to a $16 an hour position and stays there for the remainder of the year. If it can be demonstrated that, but for the voluntary bid down, the HME would have been able to hold an $18 an hour position during any one of the last seven months of the year, then one month of the HME's protection is reduced from $18 an hour to $16 an hour. The HME's protected rate would become four months at $20 air hour; two months at $ 1 8 an hour; and, six months at $16 an hour.

Scenario E: The HME works the first three months of the year at a $18 an hour position. On April 1, the HME voluntarily bids down to a $16 an hour position. He holds this position until November 1, when he voluntarily bids to a $20 an hour position and remains there during the last two months of the year. If it can be demonstrated that, but for the voluntary bid down, the employee would have been able to hold a $20 an hour position during any two months that he held the $16 an hour position, two months of his $20 an hour protected rate is reduced to $16 an hour. Stated differently, the fact that the HME may have been able to occupy a $20 an hour position during the three months that the HME held the $18 an hour position cannot

be held against him. Rather, it would have to be demonstrated from the records, that he would have been able to hold a $20 an hour position while lie was holding the $16 an hour position to which the HME voluntarily bid down. If this can be substantiated, then the HME's protection is two months at $20 per hour; three months at $18 per hour; and, seven months at $16 per hour.

part, in accord with this Opinion and Award;

part, in accord with this Opinion and Award; and,

(3) This Board retains jurisdiction over the specific claims submitted for adjustment here should either party have a question or dispute regarding the amount of compensation due a named Claimant or the methodology used to determine the compensation due a named Claimant.

Dated: January 17, 2007

R. B. Wehrli Kenneth Gradia

Union Member Carrier Member

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Donald F, Griffin ~I John Hennecke

Union Member (,~ Carrier Member

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