~d:4. I . c~ i):_inwl :N). "4dl

SPECIAL BOARD OF ADJUSTMENT

ESTABLISHED PURSUANT TO RULE 34, ARTICLE VII OF

THE NORFOLK SOUTHERN/TRANSPORTATION COMMUNICATION UNION

SCHEDULE AGREEMENT, JUNE 1, 1982


NORFOLK SOUTHERN CORPORATION

TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION

 Board Members:




.1, vTT. ·~ v

This dispute concerns protected clerical employees who, following their furlough, claim they are entitled to the continuation of their health and welfare benefits under Rules 34 and 41 of the parties' June 1, 1982 Schedule Agreement (CHA). The organization (TCU) insists the claim has merit. The Carrier (NSC) believes that these furloughed employees have a limited right to health and welfare benefits under Rule 41 but no right whatever under Rule 34.

 NSC, a holding company, received approval from the Interstate Commerce Commission in March 1982 to take control of two separate railroad systems, namely, Norfolk & western Railway (NW) and Southern Railway (SR). As a result of this takeover, NSC and TCU signed a CBA effective June 1, 1982, to govern the rules and working conditions of NSC clerical employees.

 Rule 34 of this CBA dealt with Job Stabilization, hereafter referred to as the parties' Job Stabilization Agreement (JSA). Article 7, for the most part, describes how employees achieve "protected" status; Article II relates to the "use and assignment" of protected employees and the loss of -protected" status; Article III concerns "Implementing Agreements". And Article IV sets forth the "compensation due protected employees". The provision in question, Article IV, Section 1, reads in part:

Rule 41 covers health and welfare benefits (HW8) including such matters as life insurance, major medical expenses, and dental expenses. It provides in part:
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      Health and welfare benefits ...for emp~.oyees subject to this (Algreement shall be rovi d or by the corporation fNSCI as set forth in


      Em to a s' National Health and Welfare Group Policy Contract GP-12000... at no cos to the

      employees. (Emphasis added)


Three clerical employees were furloughed in 2001 - J. E. Marshall on March 1, J. B. Keller on Apri~ 3, and D. M. Baker on April 6. They were protected employees and received the money benefit of a furlough allowance pursuant to the terms of Rule 34. They also presumably received HWH under Rule 41, that is, under the Plan, for a period of four months after their last qualifying month, Then after these four months, NSC stopped paying them HWB. Thatlaction prompted the employee claim now before the Board.

 A hearing was held at NSC's offices in Norfolk,
 Virginia on August 29, 2002. Post-hearing argument and
 clarifications to supplement the detailed pre-haring
 submissions were received on September 23 and 30, 2002.
 Further arguments regarding the Neutral member's draft
 opinion were received in mid-November, 2002. The NSC was
 represented by A. L. Austin, Labor Relations Officer, and H.
 R. Mobley, Assistant vice President. TCU was represented by
 Darwin B. Kubasiewicz, Associate Director, Industry
 Relations, and David L. Steele, General Chairma~, System
 Board No. 9. The Special Hoard of Adjustment consisted of
 L. F. Miller, Jr., Carrier member, C. H. Brocke~t, TCU
 member, and Richard Mittenthal, Neutral member.
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                DISCUSSION AND FINDINGS


              I - Rule 34, June 1982 CHA

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The initial question before the Board is tie nature of NSC's obligation with respect to "compensation"ifor protected employees who are placed on furlough., Rule 34 (Article IV, Section 1) says such employees "shall not be placed in a worse position with respect to compensation than the normal rate of compens,t~..." for their regularly assigned position as of a particular date. NSCJnsists these words encompass only a rate of pay; TCU insists they also encompass HWB.

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      True, many workers in many industries think of their

"compensation" broadly to include both hourly pay and HWH,
 that is, a variety of fringe benefits covering health care
 and pensions. Hut the customary meaning of a " ..rate of
 compensation" for a given "position" is simply an hourly (or
 salary) dollar figure for the performance of one's work.
 Nothing in the negotiating history or in NSC's past practice
 suggests that the parties intended these words to have a
 larger reach so that they would embrace HWB as ell. Had
 that been the parties' intention, they surely would have
 said so. I

 When the June 1982 CHA was written, the paxties did consider HWH. They expressly covered this subject in Rule 41, stating that HWB "for employees subject to this fAlgreement shall be provided... as set forth in..." the Plan. Tall employees, whether or not on "protected" status,
 are covered. The Plan describes in detail whatibenefits are _
 available and how employees become eligible or lose
 eligibility. TCU would have the Board believe that the
 parties intended Rule 34's reference to "compensation" to
 encompass the very HWH matters dealt with in Rule 41. Hut
 the parties' treatment of these subjects as separate and
 distinct strongly suggests that they never meant Rule 34 to
 extend to HWH.

 Nor is there any evidence of past practice to support TCU's claim. No doubt protected employees havel,been placed on furlough between June 1982 and early 2001 just before this dispute arose. But they must have been cabled back to work before their HWH rights had been discontinued. For TCU was unable to show any instance during this period where protected employees, subject to the kind of extended furlough involved in this case, nevertheless received HWH. Such a practice may well exist at some other caxrier(s) for other craft employees. However, nowhere in theireeord before this Hoard does it appear that such a practice existed at NSC (or NW or SR) for its clerical employees,

                    r. x


Our ruling is consistent with several earlier arbitration awards. Although those awards concerned parties other than NSC and TCU, they involved JSA "compensation" language almost identical to Rule 34. That language

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appeared initially in the February 7, 1965 Nati~onal'JSA. However the NW-TCU and SR-TCU parties chose notlto be bound by the terms of this National JSA and adopted instead their own JSAs in April 1965. And it is the language, of those latter JSAs which subsequently appears as Rule 34 in the relevant June 1982 CBA between NSC and TCU.

The following awards largely concern protected employees on furlough who either were not recalled when they should have been or were paid less than their protected base rate while on furlough. The employees claimed

"compensation", including HWB, for the violation of the JSA. Neutral Chairman Friedman in Award 99, Special Board of

Adjustment (SBA) 605, held that they were entitled to the "compensation" they had been improperly denied Put that their claim for HWB payments "dfid] not fall within the jurisdiction of this Committee". Similarly, Fredman in Award 342, SBA 605, held that employees were entitled to the "compensation" they had been improperly denied but that

"this Committee has no jurisdiction over other ;(HWB] claims cited..." And later Neutral Chairman Zumas in Award 354,

SEA 605, ruled the same way and cited the Fried an awards as precedent.


These awards plainly stand for the proposition that the Rule 34 language regarding "compensation" does riot encompass HWB and that one must look elsewhere in the Jung 1982 CBA to determine a furloughed protected employee's rights to HWB.


                    * x


TCU relies heavily upon Neutral Chairman Douglas' ruling in Award 5, SBA 1087. That was a dispute between BMWE and the National Carriers' Conference committee (NCCC). It involved the "compensation" language in the February 7,

1965 National JSA as amended on September 26, 1996. Douglas held that "compensation" for furloughed protected employees

encompassed not just a rate of pay but also HWB: His

interpretation rested on the following three pieces of evidence.


First, he noted that the NCCC written submission to Presidential Emergency Board (PEB) No. 229 in 1996 stated:

        Extending the February 7, 1965 (Algreement


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          would require the carriers to pay all pre4ent and future IBMWE] employees full compensation land benefits for life if they are furloughed or displaced to lower-paying positions... (Emphasis added by present Hoard)


      Second, he noted that during the course o~ that PEB hearing, one of the carrier lawyers testified that once an employee gains "protected" status,


          ..his railroad will have to go on paying him loo percent of his compensation, that's w es and fringe benefits... for the rest of his working life... (Emphasis added by present Board)l1


      Third, he noted the testimony at the PEB nearing of a General Chairman of 13MWE at Union Pacific . Th General Chairman had asserted, without challenge from he carriers, that Union Pacific "routinely has paid the health insurance premium for furloughed employees protected und~r...the Feb. 7r° Agreement" .

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      Douglas concluded from these points that there was

      "critical, significant, and substantial evidence" that the

      "compensation" language for protected employees in the

      February 7, 1965 JSA, as amended, did encompass HWB. He

      treated the NCCC statements like admissions ag inst interest

      and hence interpreted the "compensation" language in a

      manner consistent with BMWE's claim. Because that JSA is

      much the same as Rule 34 in the instant NSC-TCU Agreement,

      the Douglas award plainly supports TCU's view Of Rule 34,

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      We have real doubts, however, as to the soundness of the Douglas award. To begin with, it should he ~ emphasized that PEB 229 was not asked to determine the nathure of the i


      Douglas noted further in this connection the affidavit of a Senior Director of Labor Relations for CSX Transportation in a later litigation in U. S. District Court. This Management representative stated in the affidav t that the "compensation" for protected employees anticipa ed 1"100 percent of their wages for their working life and includes full health insurance cove rave..." (Emphasis added, by present Board).


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,7SA benefita·or to interpret the meaning of the term "compensation". EMWE asked only that the class of employees entitled to "protected" status be expanded andlibrought upto-date. PEE 229 recommended that HMWE's claim be adopted but went no further. The statements made by N CC before the PER should not be read as concessions with res ect to the meaning of the term "compensation" inasmuch as that question was simply not before the PER.

 It may be, for instance, that NCCC was me ~ely trying to persuade the PER not to accept RMWE's claim by exaggerating the potential monetary consequences of that cl~im. it may be that NCCC based its statements on the experilence of Union Pacific and CSX without considering the practi~e of other carriers or without considering the possible impact of its words on the interpretive question later put td the Douglas panel. Or it may be, as Douglas suggests, the CCC representatives believed that the word "compensation" had a broad reach. Rut, no matter what was in NCCC's mind lat the time, these statements cannot fairly be treated as alcontrolling consideration in resolving the interpretive question now before the present Board.

 In any event, Douglas did not really addrelss the language of the JSA in detail. He did not atte pt to explain away the fact that the JSA nowhere mentioned HWE or the further fact that the parties had dealt wit HWE separately under a National Health and Welfare plan in August 1954. Perhaps these arguments were not raised before Douglas but they are a very real part of the pr sent case and they suggest a finding quite different frorry the Douglas award.

 Moreover, TCU learned of the dispute before Douglas in SEA 1087 shortly before the award was issued. It was anxious to avoid the possibility of the Douglaslaward being used as a precedent in the interpretation of it's February 7, 1965 JSA with NCCC. Its President therefore wrote Douglas in August 2001, stating that "SEA 1087 is not t e proper or established forum to adjudicate disputes over t e application of TCU Feb. 7°" Agreements" and requ'~' sting that "any decision... on the dispute before you be re:tricted to the parties [BMWE and NCCCI...before you..." And the Douglas award was indeed limited to BMWE and NCCC. Thus, TCU rejected in advance the notion that the Douglas award
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would have arty precedential force with respect 'o TCU.' This is still another reason for not following he Douglas award.

            II - Feb. 7, 965 National JS A


TCU also relies on this February 7, 1965 Agreement or, more specifically, on a side letter of understanding executed at the same time. That side letter de It with the narrow question of what would happen if "officials, supervisory or fully excepted personnel exercis seniority rights in a craft or class of employees protected under... (the February 7] Agreement". It went on to say that such "officials..." would have the "same protection afforded by ...(the February 7] Agreement to employees inithe craft or class in which such seniority is exercised". A~d it then added:
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      ...no employee subject to said Agreement shall be deprived of employment or dverse affected with resnect to compensation, rul s, working conditions, fringe benefits, or rights and privileges pertaining thereto, by the return of the official, supervisory, or fully except d employee to work under the schedule (A7gre$ment. (Emphasis added)


There are several difficulties with this a~gument. First, the side letter concerns a very limited ituation, namely, an "excepted person...", someone outsid the bargaining unit, exercising his seniority to re ;urn to the unit, thus triggering the rights of an employees"adversely affected" by that return. The present case involves a furlough by several protected NSC employees. Hut nothing in the evidence suggests that such furloughs were prompted by the return of an "excepted" person to the barga'Ining unit. The side letter, in short, is not relevant to t~e facts of this case. Second, and equally important, the present dispute concerns Rules 34 and 41 of the June 1902 Schedule Agreement between NSC and TCU. The employee ri hts asserted

 ' Had Douglas decided in NCCC's favor, surely T~U would have been correct in asserting that the award had no precedential force on the TCU-NCCC JSA. I
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Jnir,
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 .. _ .-.n.

 here by TCU were not based on the February 7, 165 JSA. The latter Agreement does not cover NSC clerks. Nor indeed does it cover clerks who work at what had been NW' arid SR. Those employees are apparently still covered by JSAe in effect for NW-TCU and SR-TCU.

 Furthermore, it should be emphasized that the side letter in question mentions "compensation" and "fringe benefits" as separate and distinct matters. Ye , when the instant parties negotiated the June 1982 Schedu~e Agreement and described the kind of "protection" many employees would enjoy, they spoke only of "compensation" in Rule 34, They made no mention of "fringe benefits", or HWH, in Rule 34, They dealt with that subject elsewhere in Rule 41.

 TIT - Rule 41. June 1982 CEA
Rule 41 is entitled "Health and Welfare Benefits" and includes such matters as -life insurance, early retirement, major medical expense benefits, dental benefits, and offtrack vehicle accident benefits". It states th#t such HWB is "for employees subject to this (June 1982 Agreement" and "shall be provided for by the [Carrier] as set forth in Railroad Employees' National Health and WelfarelPlan Group Policy Contract_as amended, and Aetna Group Pqlicy Contract,.., as amended, at no cost to the empl6yees". To determine what HWB have been "provided" by NSC,lone must look to the "Plan" and "Group Policy Contracts"'which have been expressly incorporated in Rule 41. Because the HWB rights of furloughed employees, whether in "pro~.ected" status or not, are explained in detail in the Plan as amended, the answer to this dispute must be fouAd in Rule 41.
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Limitations on the 14WB rights of furloughed have been in place for years. The original August 1954 Plan has been amended numerous times by NSC and TCU. That history plainly reveals what the parties had in mind with respect to the eligibility requirements for furloughed employees.

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There is one minor exception. Twelve clerks,lll,originally employed by Illinois Terminal Railroad which was later acquired by NW, are evidently still covered by the February 7, 1965 Agreement.
 da. u . ~I:UJ uJ:;,'_,n:Yl .I J. _e`11 C..~

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          In August 1960, the parties agreed' that a~ employee

      whose right to HWH would lapse under then-existjing

      agreements because of ~-

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          ..[his) being furloughed and not having rendered compensated service in a month orimonths shall have [his] rights to such benefits a tended for any period, not exceeding three consec tive months, during which such rights would not exist under present agreements...


      In November 1964, the parties agreed that "vacaltion pay" would be regarded as "compensated service" in determining a furloughed employee's eligibility. In Decemberl1981, the parties agreed that "vacation pay" would no longer qualify a furloughed employee for xwH. Then, in April 196, the parties changed their position and agreed to allow "vacation pay" to be treated as "compensated service" at least until January 1988.


          I

          Finally, in September 1996, the parties agreed that in

      order to continue eligibility for 14WB in any gi~en month, an

      employee must have "rendered compensated service on, or

      received vacation pay for, an aggregate of at ast seven

      (7) calendar days in the preceding month. However, this

      formula in no way diminished the established eligibility

      rule which allowed continued HW8 coverage for alfurloughed

      employee until the end of the fourth month follbwing the

      month in which the employee last rendered "compensated

      service".5 I


      what this history demonstrates is that a f rloughed employee loses his eligibility for HW8 after a ieriod of months when he can no longer show the necessary)"compensated service" or "vacation pay". These are the only grounds the parties provided for continuing a furloughed em eligibility. Nowhere in any of these agreements did the

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      This agreement applied to hospital, surgical land medical benefits and to group life insurance.


      ' Other agreements establishing a dental care pan and a vision plan appear to have embraced these same eligibility

      requirements. !I


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parties say,·or even suggest, that a furloughedllemployee on "protected" status will continue to receive HW8'Iby reason of the protective payments he receives pursuant to!Rule 34. Such protective payments clearly do not represent "compensated service". That principle was established years ago and has been recently affirmed in rulings bar Referee Marx, Award 29659 (Third Division, June 1993) a d by Referee Benn, Award 4902 (Fourth Division, October 1993 ,
For these reasons, assuming that the claim$nts did not meet the "compensated service" or "vacation payy test, we find that Rule 41 does not support TCU's case. I

        IV - Side Letter No. 4, Sept. 1996 Aareement


The parties' September 1996 Agreement included Side Letter No. 4 which explained how "the seven calendar day per month eligibility requirement for benefit [HWH]icoverage..." for furloughed employees should be applied. Items 1 and 7 of that Side Letter have been cited by the parties:

      1. Nothing contained in this letter phall in

      any way add to, diminish or alter existing1rights

      and/or obligations of both carriers and em loyees

      with regard to eligibility requirements fo

      benefit coverage for employees going on fuFlough,

      furloughed or returning from furlough.

      i


      An employee subject to call under applicable call rules for which there are sanctions for not responding will be credi~ed with one calendar day for each day such employee is available for service but is not called.


TCU contends that the claimants, protectedifurloughed employees, are covered by Item 7 above. It all~ges that they "may be used...-for-other temporary assig ments _ . (JSA, Article II, Section 3), that they were accordingly" "subject to call ...for service" and were indeed "available for service" (Item 7), that their failure to retpond to such a "call ...for service" would have led to "sanct ons", namely, suspension of their "protected" status (JSA, Article 11, Sections 1 and 2), that they hence must be 1~credited with one calendar day for each day... (they were available-but ...not called" (Item 7), and that they

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therefore qualify for HWB under the Plan langua e, seven calendar days of "compensated service" in a mon h. It insists that, given this coverage under item 7,Ithe NSC view that the claimants have not met the Plan's eligibility conditions makes no sense.

 This argument, although not without a cert in surface appeal, is not convincing. Acceptance of TCU's,position would allow every protected employee on furlough to receive a "calendar day" of "compensated service" for every day they were available to respond to a call for their services. This would mean that protected employees would qualify for HWB under the Plan regardless of how long they were on furlough. Item 7 would thus have effectively r~pealed most of the Plan's eligibility requirements for furlbughed employees. This could not possibly have been what the parties intended. They had made large efforts Aver the years to establish a Plan and to refine it timeland again through several amendments. Item 7 represents lust one of many different items in Side Letter No. 4 to help guide those who administer the "calendar day" eligibility requirement. It is difficult to believe the parties m$ant Item 7 to have the extraordinary broad reach urged by TCU. "The tail does not wag the dog".

 indeed, item 1 states in effect that nothi~g inside Letter No. 4, including Item 7, "shall in any way...diminzah or alter existing rights and/or obligations ...w34th regard to IHWB) eligibility requirements..." for furlough4d employees. TCU's reading of Item 7 would dramatically "diminish" and "alter" the Plan's eligibility requirements. Such a result is expressly forbidden by Item 1.

 Furthermore, a close reading of Side Letter No. 4 is revealing. Item 9 continues "current practices with respect to whether vacations, holidays, personal leave, etc. are to be treated as days of "compensated service". Item 10 guarantees an employee called up for "military duty" in response to an "emergency" four months of HWB eligibility even though the call-up resulted in his failure lto meet the seven-calendar day requirement in the month in which he was summoned. Item 12 concerns a "lapse in benefits," due to the eligibility changes in the September 1996 Agreement (i.e., Rule 34 and Side Letter No. 4) and how that "lapse" is later remedied.

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More to the point, however, items 2 throug 6 and Items 8 and 11 all deal with active employees, not th se on furlough. It would appear that Item 7 likewise was meant to deal with active employees, not those on furlou h. Item 7 covers employees "subject to call under applica le call rules.,." Nothing in the record suggests_ that here are "call rules" applicable to furloughed empoyees Such "call rules" apparently relate to those on stand-by s~atus. But nothing in Item 7 or in Rule 34, Article II, Se tion 3 ("...a protected employee ...may be used... for a y other temporary assignments...") suggests that furloughed employees are required to stand-by for such ass~gnmenta.

 For these reasons, Side Letter No, 9 did nlt provide claimants the kind of continuing "compensated Jrvice" credit which TCU requests- It follows that NSC s action in stopping HWB for claimants after they had been pn furlough for four months was not a violation of the relei~ant Agreements.

                      AWARD


      The claims are denied.


                F


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                'Richard Mittenthal

                Neutral Member


OU418 F. Miller, Card H. Hroc ett
 Carrier Member TCU Member
 Concurring Dissenter A~AC!4EA~

 Date of Awardrruso ,

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LABOR MEMBER'S DISSENT TO

THE AWARD OF SPECIAL BOARD OF ADJUSTMENT

ESTABLISHED PURSUANT TO RULE 34, ARTICLE y~IlLI OF THE

NORFOLK SOUTHERNITRANSPORTATION COMMUNICATIONS UNION

SCHEDULE AGREEMENT, JUNE 1,1982

(REFEREE RICHARD MITTENTHAL)


With the rendering of the Neutral Member's decision in the se at bar a dissenting opinion is required. This dissent is necessary because t arbitrator's decision ignored and/or totally disregarded factual considerations terial to the dispute.

 Significant to understanding our dispute was recognition of its genesis. Pointed out repeatedly in our submission; oral arguments; post-hearing brief and, in subsequent explanation of pertinent substantial matters of consideration was how our dispute started in the first place.

 Importantly, a dispute predating the Carrier's unilateral chan a in how health and welfare (hereinafter HW) benefits were applied to TCU represented~Feb. 7t" furloughed protected employees was the impetus behind the issue placed before this arbitrator. That prior dispute, between BMWE and NS was over the continuation of HW benefits to BMWE furloughed protected employees under its newly modified Feb. 71' agreement.

 Because of the BMWE dispute involving the parties' Feb. 7'" Agreement the Carrier notified TCU that it would no longer provide HW coverage td our Feb. 7"' furloughed protected employees. The Carrier's notification to TCU of this change in application was premised upon receiving a favorable preeedential decision from the arbitrator (Douglas) in its BMWE Feb. 7 HW dispute.

 However, BMWE prevailed in its Feb. 7t' dispute with Arbitrator Douglas (hereinafter Douglas holding that HW benefits were part of the protective panoply.' Faced with this development, the Carrier contented that such application did not cover similarly situated TCU Feb. 7"' protected employees (remember such employees previously enjoyed such benefits). Arbitrator Mittenthal was then designated as the neutral member of the Special Board of Adjustment to consider our base.

    It is worth noting that Douglas was faced with the question:


    Does Article I, Section 1 of the February 7, 1965 Medikion

    Agreement as amended by Article X11 of the Mediation Agreement of


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    'Award 5 of SBA 1087

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    September 26, 1996, uire a carrier to continue covers a Lnder the collectively bargained National Health and Welfare. Dentat. rid Vision Care Plans for a furloughed employee. who is otherwise retained in service subject to compensation? (Underlining our emphasis)


This is exactly the same issue and dispute that arbitrator Mittenthal was faced with. TCU's position was that furloughed protected employees were entitled to continuation of HW benefits as long as they were retained in service and receiving compensation via the Feb. 7"' Agreement (Rule 34).
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But, in distinction to Douglas, arbitrator Mittenthal attacked toe reasoning found in Douglas asserting that he had "real doubts" over the soundness of such decision, Mind you, both Douglas and arbitrator Mittenthal were provided with incontrovertible testimony made by the National Carriers Conference Committee (NCCC) before Presidential Emergency Board No. 229; NCCC's written submission; a sworn affidavit from a carrier officer and witness to a US District Court; and, testimony from an NCCC lawyer along with other pertinent documentation and applicable arbitral decisions.

    This is what Douglas had to say about this evidence:


        A careful review of the record indicates that Presidential Emergency Board No. 229 described the contentions Of the Carriers about the extension of the February 7, 1965 Job Stabilization Agreement as follows:


            The Carriers propose no change to the I',

            February 7, 1965 Job Stabilization agreement.

            The Carriers note that the agreement covers

            only 2.3 percent of the present workforce and

            revival of that agreement would require the

            Carriers to pay maintenance of way employees,

            full compensation · wages and benefits,

            adjusted for ail future increases - until they

            reach retirement age, if they are furloughed or

            displaced to lower paying jobs for any reason,

            apart from narrowly defined declines in

            business.


        (Report to the President by Emergency Board No. 226 at 12 (1996).


        In formulating this summary, the record indicates that Presidential Emergency Board No. 229 received critical,


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I I I significant, and substantial evidence from representati eyes of the Carriers that supports the position advanced by hit Organization in the present dispute. For example, a written submission on behalf of the Carriers argued:

    Extending the February 7, 1965 agreement would require the carriers to pay all present and future MW employees full compensation and benefits for life if they are furloughed or displaced to lower-paying positions for virtually j any reason ...


(Brief for Carriers at 2, May 1996).

    The testimony of Eugenia Langan, Esquire, fro n the

law firm that represented the Carriers before Presidential
 Emergency Board No. 229 conceded that I

    For any employee who was on the payroll in 1994 and for anyone else who has come on since or who comes on in the future who has two years of seniority, once they get two years of seniority, his railroad will have to go on paying him 100 percent of his compensation, that's wages and fringe benefits, adjusted for all subsequent wage increases and benefits increases, for the rest of his working life...


(Presidential Emergency Board Number 229, Record at 1307 (June 7, 1996).)

    A sworn affidavit of James B. Allred, Senior Din Relations- Special Projects, for CSX Transporta on,

Inc., in connection with certain subsequent litigation before a
 United States District Court, recognized that

    The February 7, 1965 national agreement ... provides protections for employees who have been furloughed. That protection is 100 percent of their wages for their working life and includes full health insurance coverage. The February 7 agreement provides such protections for employees with ten (10) or morel


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          (Affidavit in Civil Action No. 3:00-cv-264-J-21 B (M.D. la 2000).) Furthermore, the unrefuted evidence in the re Ord from a General Chairman of the Union Pacific System l Division of the Organization reflects that the Union Pacific System Division of the Organization reflects that the Uhion Pacific "routinely has paid the health insurance premiums for furloughed employees protected under Article I, Section 1 of the Feb 7"' Agreement " (Declaration of David D. Tanner at 2 (February 14, 2061).)


          The combination of this information provide credible and persuasive evidence to support the claim of the Organization. The record contains certain arb(tral precedent that arguably supports the position of the C~rner$ in the present proceeding. If the record only contained such precedent, the position of the Carriers would be more credible. Such precedent, however, fails to supersede, refute, or discredit the statements by Presidential Emergency Board No. 229, the representatives of the Carriers before Emergency Board No. 229, the statement of a credible Carrier representative, and the practice that! exists on certain properties.


          The presentation by the Carriers to Presidentiall Emergency Board No. 229 undoubtedly sought to persuade the Board to reject the Organization's effort to exbend the coverage of the Job Stabilization Act The Carriers assurrred the risk that the Board would grant the Organization's request after hearing the argument developed by the l~arties. As a consequence, the Carriers lack the right at this tire to disavow, renounce, and repudiate in the present proceeding the identical interpretation that the Carriers knowingly and voluntarily advanced before Presidential Emergency Bard No. 229. Any change to this straightforward interpretation of the relevant provisions therefore is a matter for collecb)ve bargaining, rather than for arbitration. [bold added)


After 11-days of consideration arbitrator Mittenthal found this "credible and persuasive evidence" to be "doubtful". Perhaps more onerous is th;t arbitrator Mittenthal when considering the evidence held that "it may be" that the testimony before a PEB was merely an exaggeration; or, "it may be" that statements regarding Feb. 7v'

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applications made by the NCCC before the PEB were without consideration of their impact upon other carriers (also in such handling); or, finally, Nit me), be' NCCC representatives believed the word compensation had a broad reach.

 No matter to arbitrator Mittenthal, he concluded such "credibl and persuasive evidence" could not "fairly be treated as controlling" in the dispute b fore him. Truer words were never spoken, because arbitrator Mittenthal did not far treat any of the evidence supportive to our case.'

 Also pointed out to arbitrator Mittenthal in our post-hearing b ef was that continuation of HW benefits for protected employees was directly a dressed in a side letter to the original Feb. 7'" Agreement stating:

        ...no employee of said Agreement shall be deprived o~ employment or adversely affected with respect to compensation, rules, working conditions, fringe bend, or rights and privileges pertaining thereto... [bold added]


This understanding fully and completely recognized the oonfitluation of HW benefits for protected individuals and was signed by the representatives of the Carrier's Conference Committees representing all carriers including NW and NS:" Nevertheless, this too was ignored by arbitrator Mittenthal and portrayed as limited in its scope. Arbitrator Mittenthal justifies this misinterpretation by the illogical assumption that while employees under the limited side letter were entitled to HW benefits) all other employees covered by the Feb. 75' Agreement were not .5

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zThere is no indicatation that arbitrator Mittenthal ever cconsidered that this compelling evidence "may be" simply the truth. To the contrary, the decision goes to extreme lengths to dispel direct evidence considered by PEB 229.~ Thereby, arbitrator Mittenthal placed himself as judge of what only PEB 229 could effectively consider in face-to-face testimony and presentation.


'As arbitrator Mittenthal has sat on previous PEBs, one c n only wonder how factual statements and considerations from any party were consider by him - does he assume them to be untruthful on their face and render a decision ased upon his own standards of adequacy?


4As the continuation of health and welfare benefits was understood to be part of the protective cloak, Rule 34 of the CBA also recognized the continuance of HW without exception.


    SThis of course coincides with the damage he has laid upon the same Feb. 7"'

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In reality, the side letter was an expression of the parties' understanding that protected employees not affected by triggering events specified by our Feb. 7 Agreement but displaced by officers coming back to rank-and-file positions would not be treated differently than other protected employees when it came to HV11 benefits. It is that simple,

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Finally, as pointed out in our submission; oral argument; and, post hearing correspondence, the 1996 National Agreement addressing HW issues had a direct impact upon this dispute. As part of the TCU Negotiating Commi and head of our Social Services Department which is charged with administering Plans, I was directly and personally involved in the formation of Side Letter No. +of our 1996 National Agreement and provided arbitrator Mittenthal with insight into such understanding.
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It is the intent of Paragraph 7 of Side Letter No. 4 that an employee who cannot hold a regular position, who is required to stay in place for call, and Who may receive sanctions (discipline and/or loss of protective benefits in the case of protected employees) for missing a call, will continue to receive health and welfare eligibility. And yes, HW benefits would continue indefinitely, for as long as the employee is required to stand by, subject to sanctions if he misses a call.

 While this reality may be repugnant to arbitrator Mittenthal -- that furloughed employees may retain HW benefits in perpetuity - we must refer ba~ to the intent of Article V of the 1996 National Agreement in the first place. There is huge difference between a UTU employee who is able to work but voluntarily makeslhimself absent for 28 days out of every month, or a furloughed employee who goes about his business and finds other work outside the rail industry. and a TCU employee who is involuntarily affected by a force reduction and unable to hold a regular assignment but is still required to maintain availability, literally around the dock, under penalty of sanctions.

 In the case of protected employees, legions of awards have held that time spent in standby service is considered compensated service. Indeed, the parties drafted Item No. 7 because it was assumed that an employee who was required to make himself available for service was to be considered performing compensated ,(service. Standby service is also considered compensated service under the National Vacation Agreement.

 Agreement between crafts on this Carrier. Henceforth, BMWE p~otected employees who previously did not receive HW benefits will be enjoying them under Douglas, while TCU protected employees who previously had HW benefits are (denied them under Mittenthal.
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This is not a novel or new argument. An employee who subjects himself to the Carriers bidding by being in place for calls cannot be expected to d so for free, out of the goodness of his heart, particularly where he is subject to having his protective entitlement reduced or disciplined (i.e., "sanctioned") for being out of place.

 For these reasons, the parties agreed that insurance covera g~e for such employees would continue if they were performing standby service Por seven days or more in a month, even if they are not paid for standing by. Indeed, if such employees were being compensated for standing by, there would be absolutely no need for Paragraph 7.
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Disregarding such testimony and evidence, arbitrator Mittent~al (who admittedly had little experience in railroad arbitration issues) held that Side Letter No. 4 did not say what it said .6 In doing so, arbitrator Mittenthal once again ignored the evidence submitted or it may be' he just thought it was another exaggeration) of reality.

 These are but a few of the material errors, omissions, and refusal of arbitrator Mittenthal to accept the reality of our position in this dispute. For these and other reasons not reiterated herein, the award has no precedential value Whatsoever.
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                                Respectfully 4mitted,


                                Carl H. Brockett

                                TCU Labor Mpmber


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flit was necessary to provide the arbitrator with a history of the Feb. 7s' Agreement; a summary of how the NS was formed; and, explanations on various common and long-standing concepts upon which our agreements are founded. 7

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