Railway Enployes' Department, Fed. #6 )

Chicago, Rock Island and Pacific Railroad Company )

 QUESTION: That under the terms of the Washington Job Protection Agreement of
 May 1936, two Electricians, namely: T. L. Casey and 0. L. Eackney, who were employed by the Chicago, Rock Island and Pacific Railroad Con?any, are entitled to receive coordinacion allowance, in accordance with the provisions of Section 7 (a) of said agreement, and other benefits resulting from their previous employment on the Chicago, Roc:: Island and Pacific Railroad, in accordance with Section 8, of said agreement, as a result of the coordination of passenger facilities of the Chicago, Rock Island and Pacific Railroad Company, with the Illinois Central Railroad Company, at T:emphis, Tennessee, on or about June 1, 1961.

 DECISION : Withdrawn.



Lighter Captains' Union, Local 996, )
 I.L.A., AFL-CIO )
vS. ')
 Erie-Lackawanna Railroad Company )

 QUESTIONS : "Interpretation of Section 7, (c), 2., of the Agreement o_' May, 1936, Washington, D.C., relative to an employee being deprived of his employment and entitled to a coordination allcwance, under that portion of Section 7, (c), 2., which reads as follows: ', ·: * · * * 'or by other employees, brought about as a-pfoximate conseauence of the coordination, and if he is unable by the exercise of his seniority rights to secure another position on his home road or a position in the coordinated operation.' (Emphasis added by underlining.)

 "Interpretation of Section 12, of the Agreement of May, 1936, WashinZton, D. C., relative to a practice whereby the Erie R.R. Co., in 1959 and 1960; in deference to repairing and maintaining its own floating equipment; chose to lay up its own floating equipment, and did thereby lease, charter, rent or acquire floating equipment from the D.L. & W. R.R. Co.; said D.L.& W. barges and scows being manned by D.L. & W. Lighter Captain forces. This necessitated the furloughing of Erie Lighter Captains who would have continued to work, had the Erie R.R. Co. maintained its floating equipment. However, such was not the case and the Erie R.R. did rearrange its forces by pressin.- D.L. & W. Lighter Cap rains into service :with the Erie R.R. Co., aboard D.L. & `.1. floatinS equipment. This joint action by the former Erie and D.L. & ,1. R.R. Cos ., deprived certain E:.ie Lighter Captains of active employment during 195'' a^,d 1960. This was during a period when the ^ric R.R. Co. a^.d the D.L. & G1. R.::. Co. were anticipating -.or-Scr.'f



delayed until February 20, 1961 when a dovacz.i.F.. seni~a ty list of Erie and Lackawanna Czptain? wt':i= into eIfec--. --il the ._2amG':1:5, except Captain LaFrerz, made claims for a Section 7 "c.·.ordina=io. allca·aac~" for months subsequent to e·ruary 1961' i: e_seace Cap:an
 LaF-enz clai^s that he was adversely affected by the me.-.her alter ch=_ combined seniority list went into effect.

          In ndi: ' - to:~A~ t^h2t th

            ar_..n, the Organization . E "test period"

average earnings of cbe Claimants, for.er Erie Captains, w_s improperly
 distorted because _n 1959 and 1960 c`c- Erie, .. ce%cesp':at:on of the
 merger, failed to r-:.pair floatin0 equ:pme= -.·..c _r.sLead ie=sed Lack-Z.wznna
 equipment manned by L_ckaw=nna C=ptai:>. In c-f~`ect, the ar<cmer.c is made
 that Section 12 of the Agrepcant is appl:caflc and that tile 1959 and 196C
 earnings of Claiman:s cughc to =e excluded fro.-_ heir test period' averages.

 The Carrier denied these claim.: on the 6_cuad that the Claimants were in either a "furlough rcdl or a part time =mpicyment statva"2 prior to <iie merge= and chat Ll:e Erie-Lackawanna leaar.rg ar:angements in 1959 and 1960 were in acco=c'ance with normal pract--'-ce and rot in cortempiaticn of merger.

          I. The Chartering ISSte3


            Section 12 of the Wasttizgttcr Agreement provides:


            If any carrier shall rearrange :r adjust its forces in anticipation, of a coordination, -alt h the purpose or effect o_° depriving an erp_cyea o' benefitz to which he shoul" be entitled under this ag:ee:rent as an employee immediately affected by a. co^rdinati:on, this agreeem-_nt shall apply to Euch an employ~e <".s 7f the dote when he is so affecced.


1. This ground o? deniai applied only to t1ree c" the fifteen Claimants:
 Captains ?:elfish, Janes Fi:izio and William Fini-:io. Captain Mellish
 was recalled from~`Lrlough is i`~rr_(· 1,.~6C a.,nost a yea_ r Lezcre the dove-
 tailed seniority list went intc ef_'ect. On r.h= property this was apparently
 misread as March 19E.I !compare Carrier Ex:i:bics D(p.1) and F(p.l). Captain
 James Finizio was cn furlough from at least T._'d-Cctcber 1959 (the first
 period for which record. were presented) u.^.t=1 b_az·h 7.3, 1:61 more than a
 month after to fi=st :F:N.iorit;l list WS:',' into eff=ect--a per-iod o` 19 months.
 Captain Willi^n F'_nizio :.lso was on a furicIgh from ac lease October 17,
 1959 througa April 1960--or more than 20 s.o:ts befor= his post-coordination
 recall.

 2. The Carrier us,:atly refers to them as "Cxcr= Li.-h_9!r Capcains" (e. g. in
    Carrier :::c;iibit D).


3. The findin_cs t;re are based upo_ c::c evide=:=a p'_ESEncad ir. both the Em-
 ployee a:1G Card°_:"b"i551Gni in DGff.E!~$ `%.Tberad 117.:, 109, 125, and 129, involvir.; LFC: s^- C_c:znitctic.-. U:~l Car-:- t-,, where the same c-ntention is cad=. Ihria c:s~s =rc-~-:dlec rn-c~
 :·cr ~r. -:.e r^pF-:y =~d d·vreea into four doc'r:ets only W~:n t.a casr.i wzr:. prz._,_us ic:4 t~ t~i'_ Section li CG-ilttee.
 The Organization asserts that the Eric's failure to maintain its own floating equipment and its chartering of iacks;:azna eqt~icm.ent manned by Lackawanna captains during 1959 and 1950 consrituted a rearrangement or adjustment of forces "in anticipation of coordination" s:hic': tock ple.ce in the latter part of 1960 thereby bringing Section 12 into play. As noted, the argu-ant based upon this allegation is that during that period the Claimants lost work properly theirs thereby diminishing their test pericd average earnings.

 Such an attempted application of Section 12 is at odds with the specific language. If such a rear rsngeme·a_or adjustment is made . . . this agreement shall apaly to such an emplcyse /one thereby deprived of WaZington Agreement benefits/ as of the date w!-er he is so effected" (emphasis added). In other words, he is to be treated as adversely affected in the pre-coordination period and be granted benefits for a protective period starting with the first occasion he suffers loss.
                                                      0


But even if the claim under Section 12 were treated as one seeking an allowance during the period of the alleged pre-coordination "adjustment," there is no showing that the charter arrangement was an adjustment in anticipation of a coordination." nor that specific Claimants thereby were deprived of earnings. The parties were in disagreement about how common chartering of barges and scows is among carriers engaged in harbor work. However, the Carrier did present an example of roughly comparable chartering by other carriers on a sample day in 1960. It gives the re^sonable explanation that cargo-and equipment on hand frequently do not match demand and that carriers in temporary need charter frcm those with temporary surplus capacity. The record for specimen days during the first nine months of 1953 sows some Erie charters from other carriers, although the great bu?k of s,:ch arrangements was with the Lackawanna. This was explained by the proximity of the two carriers' facilities. Moreover, the "adjustment of forces" cencertion also is weakened by the fact that of a total of 958 charter days durlrg the first six months of 1960 so--e 254 charter days involved using Erie Captains because the chartered equipment was supplied without a Captain; that s:reng-the^s the Carrier version that it wanted the equipment not substitute perscnzel.

 For all of these reasons, I conclude that the Organization's Section 12 contention is not substantiated.

        II. The "Extra" Issue.


The Carrier's principal grcun-d cf denial was that most of the-claimants (in sum all but Captains J. and 17, Finizio) were "extra-employee" / s .,_l prior to the merger and after it and .:ere continued without change of status. (This also is a main issue in Docket \o. 129 involving the same Organization and Carrier.)

                        -135-

                                      .

Whether an en·ployce ~;i:o is worki-i~; ''e~:t_a1 at t.. tire of coordination can qualify for benefits I:nder the ~asl:i-~.=:on As-ecr,cn; is discussed in Docket 9108, which is cortrollirg ~ere.4 liowev=r, it i5 net amiss to note the length and degree of _e-,p12.ymc_nt of these Ciairiants, whom the Carrier denominates is 1' extra employee" j, s _/. Fore then is the record for all of the thirteen claimants w!-,o were not on furlc::gh prior to the coordination:

 Captain Days worked du r- # of ccnsecu- ,`# of consec·_- i/ of days 0 of days
 ing year preced- tive no-the in tivc months ,jerked worked
 inl, impleme^ta- wi:ich employed i-~ which em- Oct.l-16, Feb.l-19,
          tion of verger prior to Octo- ployed prior 1960 1961

12/20/60- ber 17, 1960 to new Sen
 2/20/62 (excluding ioricy list
 Octobar,196C) of 2/20/51
 (excluding
 Febr;:ery,
 1961y
 Mellish 137 7 11 2 13
 Griner 109 3 7 1 13
 Hess 64 3 7 0 13
 Berner 94 3 7 0 13
 Blanken 188'Kk 9 13 10 10
 Gatti 205 7 11 10 13
 Price - 223*'n 12* 16* 10 13
 H.Kristofferson 178 7 11 10 13
 Ottiali 1901 12* 16* 8 13
 Munafo 158** 11 15. 6 13
 Carcich 144. 12 2 0 13 '
 Su11ivan 80 6 1 3 13
 LaFrenz 142 10 14 6 12

 This analysis shows chat: Claimants were employed preceding the effective date of the ICC order and tie i-.c_lemsntation Cf the coordination for many months (except for Captain ~ullivanj; in t!:a half ronth irr.mediately preceding the effective date of the ICC order all b:t three e£ the Claimants were employed by the Brie; is-mediately preceding t!:e implementation of the coordination all of the Claimants (except Captains J. and W. Finizio) had substantial employment; and that d;:ring the year preceding implementation all of these

 4. This makes it u-necessary to decide w'~ethe= tl-.e Claimants were "extra"
 men as claim-by the Carrier. The Organization; asserts that under Rule
 14 (b) Captains are to be recalled for ether then regular assignments only if
 they.agree in writing; hence, as there were no s,_ch siSne'd notifications by
 Claimants, they cold not be "extra" oen. Nonetheless their record of irregu
 lar work indicates that they probably did cot hold regular assignments. If
 it were necessary to decide. I would agree with the Carrier's characteriza
 tion although it might ccnstitute an infr-=cticr: of the rule (which might be
 excused by practice -- a point I do not decide as it is not before me.)

    A two week tug strike in January 1961 red_ced the work available.


Record does net reach back before October 17, 1959. Hence continuity of _. employ-on, prccedirg coordination may be longer.

 ** Includes entire month of Febr::ary 1961.
    "extra ccployee" L s_/ `:ad very substa-.=ial total efpley^·_.,=, °_:pecially when the Jam:ay 11°51 tugboat -asters' scrike and t·:e sea cnal~na:·_ra of their work

          ·_ .

    are consid~=Ed. Terse claimed "Extra r::pL:,y·:::" /-.. I were n-t. mere casuals

    catching a snatc~. of work now a-d the:.: on the ccnar->.'ry, they wox-ked with a

    fair degree cf rezol_arity and for s',:bstantial period; fur the Eric during var

    ious periods before the merger and its immpleTanta.=ion. (A-.d, for tl:e most

    part, their test period eai'nin,,s wo':1,^. :e .uaseJ _pcn the 12 months immediately

    preceding their claimed adverse affect rathe· than r=-ths ram-re in. time when.

    other patterns of emplorrsnz may y 'nave preval"-d.)


    In addition, the Carrier eenied t%e claims fur Section 7 "coordination allowance" j s_1 on the gro·_nd teat becamse the thirteen Claimants were extra men before aad after t:ne cocr3:natien, they did no= suffer any change in status and were not "deprived of ::cp?t'.Tent" within the definitio.: of those terms in Sectio-a 7. On this issue; =^e Carrier's p^si~=io= in the companion Docket 1.109 support. the reasoni-g and :es'_lt in Dcckst ?tL..8; the Carrier argues that the term position in SC:=Ci=R -rears "an cpporv-1rity to work--not

                    i

    necessarily full ti.e, and that a?: et^plcyaE with a pcsi:icn c·tt an _extra board" is not "deprived or emolcym=rat." The same reasoning susports the analysis that he iS one 5::10 15 "continued i n £ErV1C8_ wi,:hin the meaning of Section 6.


    WhiJ.e m·;ch of the disp-:t-- turned upon, the proper interpretation of Section. 7 (c) (2) co ncsrning eligibility for Section 7 all swan ces, tte Organization inv:ked -_-a terminology of Sec:ion 6 in the March 19, 1902 appeal, (Carrier Exhibit B) and t!-:e laag:_=_ge of Sect. or. 5·,2, (°) of the Interstate Commerce Act, whip!' is patterned after Seotio_ f, as;;erting that the Claimants find themselves in a worse posicien, with rES?es: to their emp'toymeat." The Organi= zation'a appeal refers to "c.~lCrdinat_On alai's" (y:30tatior, ma=:C.i mi-'.e). -The Carrier reply of ?gay 4, 1952 is the f'_t.:t in the record to refer to "coordination alle;·~_~c=_." It would be unfcrtunz=s if .=_mpl~ya~: !~it~q v-lid claims under one section of the W==king=on AgreeTEnt :..nreit tr:Em be.;.ai:ae tboy mistakenly invoke ant=her section. Claimar:ts off:-I ars aide:, it is true, by experienced union rcpresantatives. However, t`ay typically are not 2.ssiated by counsel. Even in court pro=eedinvS Ch-se rep=e=?rtea by lawyer.: 2r° no longer required to do acre. tiara state a claim upcr whAch relief can be granted even if they mistake the legal basis for the claim :. as:: for the wrung remedy. Of course,

                                        _ _

    if the. party against v'-cm tae claim i,3 asserted is surprised or acts to its detriment then a claic:ant might be li-'=ed to the orisinal iss·:e he presented. But, here tf:e Ciaima.n.ts asserted adve-.'-W effect. It is rot a_ all clear when the coctrcveray became centered upcr,.Sectio: 7, althojgl: this ray have been the Carrier's doing (as the z=e:cedi_ng accc'un= in^lc;.tes). In any event, the Car riETllffi 2raY^ent in th a c0^Pa nip:.^. DCClkE=5 N'-^O°reQ 173 a:,j 1227 indicates that it under.'-tOCd that th°. import of its ar~uman= was -rat only chat Section 7 was inapplicable bet that by the same rens;r.i.ng Section 5 :J~s applicable. It

    -----will hardly be surprised if the Section 1' Gc·,r-mittee a.greas wish it? analysis of the Washin=ten Agreement. FPncc tt:e cl_4,1l; Of adverse affect, if valid, are not barred because the Claimants at :c=a earlier stare in =he proceeding p'jrsued the wrong re^nedy.


            III. The Merits--':Adverse E`fe,:r",


    The cccrai:ation effected t~ra ma;:)r changes: W the harbor work perfo,,:,,,:d by the. separate facilities of :^.e fo:ner=y separate carriers was comhilicd and rati:nalizad and ;2) t:^.e ser.iG_iry lists of 't~e Lighter Captains of both c=rriers -.as ce-blood in,.: ^rr. · _... rany for-~G ~ca.-;an^.^a ~a~tain~ comint- a:'.%ad ,".f t'.a Claima:'.ti. LJ:h of t^C5:. major charez-i cculi diminish


                            -137-

t1:e work oppcrtu:ities cf the Cic.iT:ncs r-:~ :hc-1*c oc=~rrencF: make c:t a prica facie case of 'o~ve:_c E=f-tt" u~0.^. all 1-~.cBE tyhrr:e .-rk anC -cnior_ty standing were verged. Ir. crc=.. .C show 2tcoe1 _`d-:e:~c e_`fetti _ndc-. Sectie.^ a Clain^nt also must s,.:,w ..·-at '-is post-cocr-JinatiC.^ o~2p~sn:;_·_... -gas lower in any _,onth for which a claim is mad_: do.an his tESt ser:cd >:cr:~zc- .r,:,thly ccn~pensation. In this case auc~: a. show-_-:n_.::. :.·a:c .~ c:Ec'l c:
 ··a Carrier record;. If the ClaiY"anti, ~'ther t1-aZ C=stains va'~·e~ and Wil » :L' Y.`~izlc, are shown tr have earnin Ss for the T-stns clair!ied ('c.nC. '^E!.af:.::'~ w^1Ch are lower t'-an the test period mont:ly avcrage, t';ay s<E eiiail-le fir a S;ctio^. 6 be-,efit.

        Captains jaxes and Willi=.m ci~,izic, n:.-waver, preSEn- a difrere^t

pattern. For at leas- 16 moon=ns prior t;: iCLl°?c~tat_C:: Cf the coordination
 they had been. on fL:l.n'_Q`., i.e., withc:: cz?plo;~ent by t'.- Erie. :hey were
 recalled only e-f`ta_r cE i-.p~c^E ntzticr.. -:.eit clai:rs b<gi.n wit: tie wench in
 which they retl_r=ed. _c work or the ~cn=h i==d_at=ly f·_li:;·.i;x. In these cir
 cumstances i= is diffi::Ll.t--indeed = a:ss:}:~_ fc= mE--sc s:e low to coordina
 tion adversely aaffecced then. On the -.ntrary, only after it rook plsce did
 their furlCU3'~ :tat-J; cf more tt,an a y·__= 2nJ. It i5 nit only the fact that
 they were or, t'-rl0'-2:: 11naan: the CGCr:ii.·^_.t.:n. a-csd; its impleTEntatiC:. Cook place
 that prevents a fin,~j-:g that these ccc-:·:re:;cES -c··er-=y affsctec their a^ploy
 ment (worsening '_`_e.ir "position. wit,z :escect =, ccTpanstatio-:';, for ;n employee
 on furlough for part of a year ;-c:ay reast_Gtly expect work in another period of
 the year and t'-at cppcr,:unity ray be ~t~i_-.i.=i'~d Icy a c=crdinat=o::. Hcw long a
 period of LYlo-_5h p-ricr to a cccrdir:_ticc pro`ticia a. finding of adverse effect,
 I cannot declare; oth:~r factors may affact =he deter:rination. All that need be
 decided here is: fur1C,_.,h s,:atuS at t^_ citrE of cocrdin=ties or implementation
 does not prE>vent $EC;ion 6 eligi--ility;Jin tn1S case S::C: status for a year and
 a quarter pricr =e cc-rd_n-atien and fo-.. cvac a year z.^.d a half prier :o imple=
 meritdtlon nEg2,_Es the Critna facie shG-:_ng of ad':aria effect establlic}ked by coor
 dination of work and sE:~i.crity list and ·,;11E=edl:oj 1c4a= earninv tan those of
 the test pcri^'i avera?2. I n det°rn·n`.-? -2'-:.c.'.._.. CRc entire fact siti:ar1Cn
 must b2. tat:en i?:tc acct'-1t; it inn-Olvc~'1'ala'..\ti.'.~ the insulation aga:.not advcr--e
 effects of coordination wl,ic', the !~?~rEBG_7~ ..~ i.°?ice:-tad to rrc-vide and the in
 tention to limit caarr;.er>' liabil_ty to t'':E c=n:ey._encES Of cC9.`.'dinaticns.

          DECISION: (1; Sec=ion 12 cf the AgrEE,rE-: was ..^.o; violated and the relief _ so_gat or. that claim :s denied;


        (2) Tne clams of C=p`ai_n3 _':2:3 F:riziC .=td William Finizio are _ . denied;


Ttd -lai-$ Of ad-verse erfG::. C= ail other Clc.l__^a'tt3 are sustained i_` a payroll chac'. st:::s that after the mcnths in 1961 for which their claims Ere z·adc t"eir (:!r::=^ly --t:_JF::3=t7.0 i was lps: the:: their test period cenc`ly avaraRe; the Cpl°°e;E,'.L3 i8 to be paid. teem for each s·_ch month in accordance with Sectisn 5 of `:a: Asreccnana.

              DO::T N0. 1.04 --- ,:it..~-a,.,.;t b~· 0·oaniz'stionn


Brothcrhocd of ~~e::.y and Steams''^.ip Clsr;cc~
 vs. ) P~,R:;ES i0 DISPL-E
 Eric -Lacks-anna Roilrctd Cc:np~ny i ..

                            _lg

L1_g__ STTC'·: 1. :ir. S. i;. rivers, v.. e-.:pl-)·e ~~_ t:-.c Erie--c:k_..-nra Ra ilrcaJ
 Co^pany, , was invol%c~ in t~.: rz_·;er --nd c=-,zoliA,tion of the facilities of the Erie Railroad Ccz:pz.ny ~.:.d t^e DL:,',' a.ailrc.sA at tiobolcen, N. J., which occurred en or about Cc=cter 17, 1960, anal I; ;_ employe "continued in service" is, therefore, en:i:l_ea to be void a Di=placet.ent Allowance under Section 6 of the "Aoroe=ant of ".=.y, 1D 36, Wa;hi-st_-, D. C.";

          2. As a7 emplove involved in tL:·~ merger anC CEnsolidation, Mr.

Rivers is entitled to 'IF paid a di>place~ent all-wance equal to the difference between 'is .^..C.^.ta1__rnin3: on: way position he has held or will hold during the prctecti.ve tericd provide; in SEcticn 6 and his average monthly earnings d'JTlng th°_ "test pEri.d" as deflnEu 1..^. Section 6 (c) of the "Agree=lent of May, 1936, Washi-.g to.^., D. C," (File 17,2 Claim ;`S)

 DECISION : Withdrawn.

          DC CK°_T N0. 105 --- Becisic^ by Tze?EreE ?ernstein


Brotherhood of Railroad Signalman )
 VS. PARTIES TO DISPIJ-,E
 Louisville and Nashville Railroad Ccmcany)

 (9-U cSTI0td: "Claim that C. R. Grant is entitled to a displacement allowance be
 cause he was displaced by a fc:mer N.C.&St.L. Sign_lcan on May 8,
 1961, and s'bsey_:ently forced to work cn a Sigral Helper position, as a result
 of the t-erger between The Nashville, Chattarccga and St. Lcuis Railway and the
                "

Louisville and Nashville Railroad Company "?.C.C, .finance Docket No. '8845,
                                                  .

decided March 1, 1957, effective A': g':st 14, 1957)."

 FINDI NGS: Alteoug~. the merger was_ approved by the I.C.C. in 1957, effective
        August 14, 19:7, an Imple-encing Agreelent govE·ning certain signal

installations a.^.d operations was nor m=de u7.tiJ. "i:.:c:. 22, 1961 (Carrier's
 Exhibit A). In another a .g recment made the sa-r.e day (Carrier's Exhibit B) the
 Carrier agreed to provide cocks for certain signal gar:gs in ,:atisfacticn of a
 long-standing employee demand, and the Orean:zation agreed to plat all signal
 employees under the L & N rules. After the-- agreement was co;:cluded a ques
 tion was raised about the rights of _°urlc·Jghed N,r,&ct.L. S;enalm-En. It was
 agreed (in Carrier's Exhibit C) ti:at rh.ey should have the right co displace
 junior emplegees in system signal ga^Ss, if they made application before May
 16, 1961. As the result of such an applicacicn the C1azmant was bu-pad from
 a Signalmar, position to that of a Sig-al "elper. The pivot-1 issue, then, is
 whether the third agree:''nt (Eehihit r,) was a part of the merger, or so closely
 associated with it, t_nat the Clair.ant s displacexEnt was a result of the t:ergEr,
 thereby qualifying `.im for Section a benefits under the Was^ingtcn Areemcn t.

 The Organization points -·_t that the merger was expected to take a long time to impIc^ent, citing the I.C,C.'s prescription of ,.he New Orleans Conditions :·hicl, war= designed for sinatiora in which mergers are a -lens time in working CJC, and it arouas th.?.r ail three llf-.r Ch 22, 19'(61, agreEC`ents were elements in effectv-- ti7S the mar.-cr. Scce farce is given to this argu-ent by the f aCC ·_~'.::t .F.`:;'rDiC A, CenCedCVly an i:·Nlf'.'·2r.ting ,..'~TeE-,E:1t, was CC;C1UJCd at the _a..-_ tin:: as th= agre~t-C-.nt at iss'Je.

        Tho C_:rricr ccntc-:c!s t:,et the agreement embodied in EXI:i.b1L 5 was a


                          -139

normal · cc11:.c:i.·:r _.,"_ ·_-._ _· .:'_ _
 the _.Tplcyea> -=:'. '-"`rw _r~it~=: ·_` G.:r::-_: ` _.,or erccFticrs
              -, ir.


                              _ -e sa' c.`.· _~ scy(

                                        r_~1c.-- Lcrcter ca:ployrees

                  En-lo. .~;) to aa_:y ^

    for the pr::.`--ct:c-: ::_ = _ . - _=:c,..,..~ a re:-;:.: :.. p-_ov?oe cocks

    ~:'t'e t`~ c'r~'ra.:., it th_~ _..

."hf -ri-.,;. .;.__ _ dces not

    both ca. i ^ , _ ;.r.,;iJ._sl is a .o:t :.E =.'r:ai: i.;:; r.st:m, i=

    -or system si_ ·~= =. ^y -.E. _ .-.. '.

v ' : ~- 1' :wit`,: :he LS'V
 change the C1~._2.=_.r ~f ti:E Ot:.c= r~r~iG-. ,7j-i.i.r ~.~.°::Tc-'r.__-c --1a .

            d = a c, E _V~,; _t·_2_ : "- t ::e serge:, indeed,

      s ascrtbc by -e C rr-Er _ _. __.:- . h ._ _ ^i _._.,-J, o_' fc=acr I&N

rule d _ . ,. r . _
    this lztter CCtc..`.~.e'liE'a a r...rthsr;.. :. _.: ~.~:.Ji.-.=^_^.y·: :Je_ i.E n·~

          :· i~t.1_. T~l~y--,`-a. ^:...^.r1, J'Yt.:_. .^.c_=lc'r'^ :,-.-f d~.-~1E,re$, the third

and fc-:Ier .~. --: _ _ _d __ Jg c:lle-t=~,e bargzi^ing

 ~;as "Jcn- ^te'_~ ~_.. a.· _ __
 agree-:ent (C:'^_brc _i ._._ _:_ _ ~:-- -
agree;:ara S. ~a_t B."^ _` ^ r-- t · A.:= Fp. a: : F ° m'.l:r statement
          CaCar' ~.· Zlec=dEr to make it


                _ r need not tg _Gr _ to ..a ' e e:leat i_^_ .

On 7. 1? L1517i'_ need .,·

 ff ~tt:utivl (:f the Terger.
 'a step lR e E

                            t:di~p-=c->.a..,. c~ce 2.bc::·_ th_o-3h the opera-

          Ina<m'-::-s the Ctsim_nt _ _ _ _

          - ^,t r~ar~ie'r' _, S:a',:--~- '.'·; :-li:eia _: a_ it vas a

tisn of the t1= :_r_=.-ec_.:=. ,' i _

 result Of t`,e ..:~_-_- _-:d tt.e _.
 ..at:.on C?aic...r:c .:. __g:'-le for the benefits Of the
 Washingtct: AorE=·'?=y=

                  -'s cc:-:tentien c- t t:-e ?=>>t°-:rive period o°_ the Nell,

The ~ar r_ __
 Orleans vC:ICtiti_·^.- Fr= tl':_~ ---lo, :==? cnC'E.'"_ l.'_L.' t'3 I·_.· displacement b::CaLSE
_d . -;e dZcf ° t ''.e r;trger ^niy _`o-- a time eqcal
 it could e'LtEn-^1'°-yJ·:, ti.6 E._-~__:;_ "_ - ,
 to his pre- .."_ _ _ <t....__ ne_it. T`:at issee is -aalt .with in
 CCJ...I::_ti~:~ 5'..rY1CC is ri
 the n '_ :~^ `:o. 133.
 opinion .._ o:.kst

                                      c x ^;; . t c

DECISION: C1airnt :-re.nt was dis?lacs.i frog hi; ?osltivn as a res_lt o. a
          _, .t ..t - F a r-9 Entit.el _.'. t:e iensfit> of the

          CCOrdi~.ac_CZ-'.:.a __e.E_JY_


                          _ Washington Pore°?=-.t few a-:y~ _.e"-_:: u:d _.. X0'.7:.'=.i ·_·,z which its total benefits the Ck1a._ma Con-itions.

        a t ° those cada'_ e

exceede_ he to-;F.1 c -

 Do-'YET ~·~^ 1:'JS -
Brother!:ocd of Railway , ...., StEa>,sh_p __e-acs)
                                  _,...v

                                  ?t.3.LSS T9 DIS?,._..


The Baltimore and vCn_o Raiir._-d C=p=ny )

 l1FQ STIO,I: "Cla?= of the System C:=,:^=_:Fe of to 'Trot: artood that:

        r. (a) The :_csing ,a the a s_ti^t

                          _:. a^d Chio, rinc'nn=ti, Ohio City

                          _ ..., t:. trZ:aferri^> cf the

              1°' ^9 or ..c-.·=ry _> .7Js, e.7Q ., E ..5

              Tic:;Et ~t=i-


,_ -t ~t ~t=~.;_ of t,.e C=_^.·', "i Jn~c·n Ter'=in=1
 work invowE'_ ea_ _'_ the Jk.- _ .~^r·4 - ,._
 y__'_t.v_ x.' ..3rctc _c.:1.'.uc~ La_11it:ES ^_.: G1;Y)~c' to the Company, ?s a c~:=r&_:~___.. : aE. ,

 t._ ._ee=-Enr -.f ?t~ 0-, TH>3~i::5tC!:, ~. i
 teas and andi tic-5 c= t.._ Ag --

        II mt.. a....· - ~Jlat :- -`.!.c' ts.._~ E-.! CCna:.t::n, Ci ti a Washing-

          (b) _.:e C___l~r -_ ' - ___,.


                                                        c

                        _ _ Fve t._ ~ tC ~t:_niS a_ .~c,^·-J' ~y notice C_

              tcr. PgraEt:.En: r::c:: ._ __ inteRied d__ ':=ti=: and ^~· c. _c,d t, c.Jpt· t!-.2 '-EaTc c'v 2O^t~_iticns


                    t>i1E:: c._ =E_.o.. ' n· -_F.1 '3fteWE'~ b the

        .e -o_;, for t_._ prJtecc· _ _. <_m_ y" ,a.v= :' y

                _ts _J-t :e _o cE:~

of th= Ag- -- -

 coord4-naticn.

              .e ' ·; f -l:e ters and

                                        p · = r-y _~ c_ _

        " ^_-. c- >'.:.11 ::o = . -re: _

              :~_ .^.'-w tC ti^.. .ed.p

              cc::c1_ic:.s cf _.-:e ngiccr.e.._ ,.. t1-:e. cocrdlz-.


                            ..1rs~-

                              -TiT-


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                                      Tr31r S72 2022^p PLIU IT UM0

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' z, au;_1a aJ- . ;J:: -~ 1 -
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                                        ;a:1o;y cyy (r) ;5;;:;TG;73

c0ntin'Jati%:1 Of t!:-, )'i'.~'= i_:lCC'.~,r~i::, C!:C f:C'-:-'7_a:~l c:.::': op-- Vatio-s are
 augmented by t.I- cdditio:·.~_1 trkrs ter Oi G<<' W.:rk. ;f:cT. _l:, GT^j and its combina
 tion with its o::n scrvice> and occr.=tions.

 The Carrier calls a.t~entlcn.to es-er:e_ly :!1-On.iistent arg_'mants by the Organization- in its -ubmissic: t0 the i_dl'JS=~e:1= i`Oz·.rJ, F-.g. the Organization statement:.

        It is noted that the Carri:r's ?eel:^ing lt:er dcas not state that a ccr.t=act does not e-cisc ba-wc=-. the B.h^. and the C.:1.T that is contractual in nacre and .= in so-.o. manner, ccvered by contract.


This is not inconsiateat wit`: the holding is ~tc:-et .1-,. 58, which is followed here, that it is t!~e erran=ece_^.t; for cper_ :io^ of t::e tervinal a,^.; their continuation teat c:ns=it'ite the joint action^,.

        And else;.,here:


        Whether such transfer of w:-!c was mach ihrc:::gh an 2.2-eed upon movement betcce:n the principal cazricr =~d the garvici-ai; carrier, or, as was done %:ere, the forced tra.ns°_e: of service thr';eagi~ the elimination of servi-a availability to the ratrons, the rest=It is the

        same. Tha sstvicing carries is by a

                      -b , .y grae_cent Or contract,

        perf0_ming Eervica that was f=r-erl-y J°rfzrned by the i ac'Smbenis

        of the position in the City Tic'kc Office and to which said incum

        bents di'.d have, and still retail, /Sic 7under the provisions of

        the Clerk:' Agree7.en-r_. The remcvai of the we=is w-=: ea:irely within

        the control of the Balcimcr= one. Onic Railroad, the enployir,g party

        to the agreement, and the agree.,ct was vi.oia=e~ in t:ae action taken

        witho--:t prior agreement witn. the- empl:yes.


This is cr:ch -_'t-= same point. :t :r- be re~elebered teat the Or.~anization was stressing the alleged violation, of t-^F_ =':l°s agree^cnt. Assuredly h!1_ initiative for the cna-2e came from this C::'_rier and wa.3 initially "within the control of the Balci^:ra and Ohie Rail=cad." =4e effec=.aticn.cf tae resulting transfer was the res_lt of joint action.

 Even inccn31start arguments cannot change that. Non-lawyers often are shocked by inc--nsistent theories and are=~ants and are prone t0 regard them as admissions if n:= worse. Bat one Of r..^:c g_=8t a.^.\'ances --f modern proced-'re is flexibility im4etg:~ent and presenta=-_e-n of varying theories of a case. In an earlier forz.alistic period plaintiffs r,ad to do svery:'.:i^.g ;Jet so or lose--and mcscly they lest. They had :c c`:cc:< o-a t'?eery ef s case no matter how unsettled the law and no matter hca ·1.;: law =ieba become settled while their case wcnded its often weary ·-:ay to decisicr. B:at proced·:rai reforms have stressed giving a.ll parcias wh.a` they hays comirg with:^ct und_ue regard to exactitude of pleading and the purity and ccrsistcncy of "tt_e" theory on which they procs=d. Sc., inconsistent the-riei in the sam= proceeding are specifically pern.ittcd in tb=_ _°cderal Rules of Civil Prcced:re. Rule R ~e;;2;; many state codes fnlittr t%=t ~,.! cre,:ific rule Or'~?-i_iC:'. Armirrn-ion -i.C~l~ nor lead a retreat back to t!-:a 1B t!: ecnt.ary after gains ec arduo·,=ly won.

                                                              v


        1 -142-

            (b) Prcc,2a-^rc


            When this c1_ C, was PICSC7:r,d tO t :; CCx-^·, · t,

    ~_ ..' ti.C RC fCTCC It was afgUCd L!'L·t It Wa.: not p_0')~tly jj'CfCrC '.I2 btra'.-- - ~.u .iT_ I-ao=d Upon the same OCc'Jrrcnccs !1=.d bz^n ='~1%'-iitC_r! [o h:;2 ~.d~C':::1: _`C.r(1s ·-i-4 Division. It was ar,,Le3 ti.at t;; OrGanilation ~:'.d _ ='_Ui='1'i "rpll.t '.=:: cL':.52 of action" and, having elected r0 OUr5ve 415 O'sSible`CE!-CC_ Ncr--~-s tt.c PP.dl,rstment Board for VlOlr.t'Cn - lts rL,_= - ;nrC~=_-:~ jv r -v.d ^y p=[s> s'·.~=.. its a11G_d


                ;-_- _ _ _ e

    violatic_; or t?~ _-_-'l;~r' ?'° - -._.. ··"·o..: r, t`,:,: w':y ;==te^enr_ of th issue shc·is its` lack of cc..-parc·:`__l:.ty·:.o tf_E-'rsC:ilt:lr,g cm,.':<e Of actio argument w nic'h ^1£:'.t be 7a!'e t0 r.. c·~`_it of ger_sr~: y:215r[:.Crion bECBt:SE the claims art d._.fferE-~t and the two fc=.t'TS ~z-,:e iifi-E'r:f'g 71risiictiori.


            It i° pcesible for the s_--.= ~.e'=_,.-,. to vioi-tc-: t=?= laws

            of t.._ same

    or different ,_r;s;i=lions. 7.t alsc i.:, ocssiblE, f._r t:.e 3z=a act to breach

    two agree^.snts, s--j:, two e.gre:=:F:nts '-Etween _r:.^e partics. °_ he transfer

    of work frcn Clerks Sf th.: E S 0 tc ~`:: Clerks of ar~--ch.=r carr

    .. ier siel_t vio

    late the ,._ . _ aesec_ sn:. T!^.a j'as::n~tt_. E2r, erg:.-a pe:uit; su'.h

    ~ = -'le= - ,_action if it

    is taket. In cO-fczrs:':y c.tith its CT:c_dir:i; W(?=s tncy are zht folic-Wed, the

    excepticn t0 tv.5 rUI.?3 ag:etmE-,t _~ ...t g':c'1CCd aH: in a_4aiti^n, the Washing

    ton Agrc=-_ant is ind_pendently brr--_c~..=3 by failure _.· give the rE;'sisite

    notices arid t^ 2Ca~f, EC: 1Tpi.F.7::._'_ti:`g :.grce=-Cnt befOTE F·.:t-_ ng the coordination

    into effect.


            In order to eecply the sb=ec=ii.^, that the vrzanization is improperly

. 11splitting its -a'._zE of ncticn" hV Dr.:-E63ir?3 iQ.f;irE: the AijuatGEt Board and
    this Cca-mittee, n°_ Ora :izatic'a ws·uld _:2.vt to be ebiZ =.. :`_b'=it its eI:t.ire

    dispute to .:n_= cr the other. roz is :'is _ ste:_le procedural point because

    the rrcmedie; bet-e t'-..- 40ard a!-!C the C::;:1::E::. may be diff'erent. The Organi

    zation could rCC.scna~lv bzli~xle t''.2t riniv if it p=oceecEo in both fe---!Ts could

    it be certain to vindicate fl_lly t!:=_ rigts of its _=T:e:-., -ass~_.r,?ng that

    violations are prcve.·.,.


            Since tl'·lE ^ral aLZ'm_Elt, tb:E R.d~'~_tC.C'.·tt rtird d~5=izsev the claim

    on the gro'.'ind that r' _E lama sitUC tl:.^. r4?.a pc:ndi':g :'.:,re "raCckat ?'7J. C1.-14281;).

    The wisdrn of pjrsU~^S 1'Crh ..^.CtrSE_ i`_ then=5.y dE7:;f~t!."CEd. her "election

    of remediasrr to FOrtci03e a parry t^.: .selac=ic'. lC-3t bs a cG:Z6cio':s choice

    between i.ntr:n~i:·t'.e. t co,;r_aa. a:i vie'-, of toe '_ncertaAn.ty c£ u hat weld eventuate

    in either f:r-im, -'° Organization and the G1aia.a,=3 c=-, hardly be taxcd will:

    having m:de a_ .,^._ '_3110 ci:cice, °__: .=:al=j where the s`:pCCs?lly inconsistent

    COUT52 h_>~r1'7% , iemed%ipss.


            (c) zf1°_ ApprOG-'ln'7°_ FAT=~.

                            -L


    This a%d several cth--.r c2:_: ~flre TL pras,~:it iss~:es O: the appropriate re:,.-edv __, t`E wav c.1 ~l) c·.~- .sac?c_~. one !2) s,ffi'~-aac~ orc,ers direc:i--ng _:.__.cT_° -O Fi:'Je the. 1'^`..C<'. -.^1 :.erg:^tiat=.''i~ iSOlem-cntingry a6TEement re.q'eirr~-ry l_ctws-~3 !i 3^d i, ~C·CC='.1':':h7, cf the We.>-^.i!;5:0=1 Agree~ent as prereqjisitE.s for p-.c=ing a cicrdina~ion into effect.


                        1!

            (1) C~Tv~-atio~ -_


    1. CarriC-'. ::.ire:: t''.it i.C, TCr,=-r'j C1017: - 1'JCi·:'.C 't''c. CJxmittEe s0 that this

    Portion of '_ c~irl!;. ,-.::,d the :=l .=r. a __·.:n of tze jecijjo,j -re imr_-oper.

    But part '·.1of ti.~: ..,~.C:7 %_;.L,r .~, _ r:i`'i_ T ~C T'-'r-~.-C~ tc apply tine LO

                                                      XfrLe-

          . '.- ii_ ,'~ ,- i ·b.' ar.Olf~d.

    rent. ~r.ce<s~r; _,. _.ich d:ci;_. . is - --

,As already noted; a shift of .:ork ire-, emp.cyea of one carries to those of another carrier 1y _::tr:g'.:t transf-r ;r .c_cination r,lric:neu: observance of the Washington Pgreemen: pcoce;.:ea woulc violate not only the Washington a%SYCe'.7RC b::t CCW_ a~3.^. ViOiatC tFe rules cgYe3!'.=nt of the first carrier because the step: rule; cc2,iD.^ly .--^fer "joy ownership" in the covered categories of vcrk in the emp'.'.cyees of the contracting carrier represented by the contracting orga-:izatitr. the Orgariz_.tion; argue that this is universally the case; the Carriers arE~e that there are manY exceptions . Suffice it to say that the sccp_ rul=_ in --bis industry cem.7,only has that effect.

 The Adjustce-It Bo=rd dot2rmine= w'.:er'.-:: rules ha-re been violated and decides the appropriate remedy. I.=· this c_ee the Adjus-_Tent Board declined to reach the merits of the ccnc=overly - _.ether tle r·,i_s agreement was breached by the same transfer in-Jolved in this _c=2 _c::e_95 of t^e F°nden:v of this

                                      a

case. This disposition o~:er_och; the pos?i'oili:p tht t:~e remedies for violation of the rLICJ agreer.ent and tL:e Wa?"in2r=;, por°?T°_nt may differ. Joy if a~rules violation wer°_ found, the Adj_staent hoard -probably would award a time
                                . , _

claim to the incumbents of _h_ 2 jc=a iT^edi:c=..,· affected. Hol:.ev2r, under the Washington Agreem-nt et?·°_-; w`.o suffer=_d ccrnps^__Cic'n or job less as = result of the coordination ,might ~- =ntiLled to ccT.pensati.n under several different sections of the Was~ingtcnAgraetn=rr.

 In this :-Rd Similar caics this Ce.Tmittaa t:a= not asked to determine whether there had b·=en a rules 5gre-:.'=n: vielacicn nor was e~idence pr°_sented on that issue, and no finding i3 or can b°_ ,n.-aad,~ or, the record before US that the rules agree'.~=.nt S·-,=.3 `,_=la.°_~. ~:eR2~1`?).=s~ it is urged ::'at it is appropriate and necessary to ccmpcnsaCC e'~F~Cyi:·=S ~': FU!: then it the posi_ion they would have been in `ad -he ccord:nation net _=._e~ place :;hen the Washington Agreement, Nhich speciIie: the ccn~-iti':nc-pen which coordinations tray b2 put into operation, bas not been observe'. The atx,_:ment has considerable appeal and all the more .=o bet=us-, C1=imams ssecing r_c:-pens=_ for alleged violation of the rules agreement are apparen:lv barred fro... a consideration of their claims on their merits only oeca_sc tl-s same set cf events ga,?e rise to a claim of violation of the Washington zc:_:Te-.=. Alc~ou" based on different grounds, tba reTedy for a rules vici_ticn aid ccmpan;aticn to place all employees in the position they would have teen in if~e unautf-rized coordination had not taker. place prccaS:y mi5:hs `:e the -_m=. If t12y are to be denied the former because of i cempanicr. -barge under tro Washin=ton 4reement, it would seem appropriate :o afford the.-r. wna-:.z_ Y?Tcdy the Wa_hinatC!1 Asrecment can give. But Carrier? aiZce :nar __Clh. a remedy i3 ?=ientially the remedy for violation of the melees acre=.-<_nt and lath violation
 .5 _Y9 properly the business of the Adjustment Board.

 Manifestly claimants should no= " dri`te, from both forum; with the argument tl`at the D:her is t'·= prep=_ _.._ ?.n? ytt ha unable to secure full relief

    However, sc-c pro'Jisi-ns :L tile F<<i'l= _;O'n A5r°ee!r2nt conf=rring a~.'it_cm_l prot~=cticn s-:d ber.efic- m'i~t bra :~li_a··1.:; e.g., those of Sec=ion. 10.

    for all the contract breaches they do prove. It is for the Adjustment Board

                      _

    to pass upon alleged violations ef rubs agre=,::nrs and c,:hst remedy should flow (with provision for see of_ to prevent cc~ble recoveries - for the aim is compensation, not punish.nen_ for wrcegdcin=). cut if a hearing on the merits of such claims cannot be obtaincd, teen similar relief that is based upon the ground that employees sho"ld b=_ made whole t,-here they sustain losses due to coordination which breach this Agrce.-^t should not be withheld. For that relief does not flew from violation of the rules agreement but is based upon violation of this Agreement. If the Adjust-2enc °ce.rd does grant relief, the only objection to similar relief ~n~_r this Agre?ment would be a double recovery. Hence in the absence of s co^_pensation award by the Adjustment Board ;which cxuld be cpen to ttarr cb·ection, -mpleyees are entitled to t`·e difference between their actual ear:-ings from this Carrier and what they would have received if the ceordiraticn had not been pit into effect until tle procedures of this Agreement are fcllc,.:ed. The benefits due under Section 6, 7, etc. of the :Iashingtcn Agreement come into play after Section 4 notices are served and an implementing agreement is reached as required by Section 5.


    Carriers argue that the remedy shculd b= limited to whatever payments would have been payable under the :L,shicgtcr Agreeen= bad it been observed. But this would permit Carriers to pay t·e las.s than full compensation permitted by the Agreement even though it refused to apply it. In order to claim.it.s advantages, the Carrier must obser·re the A5-eemen t. E':en if it had given the notices it would not be entitled to displace smploye=.= end only pay the Agreement's benefits until an implementing agrsem=_nt was -thieved. Thus it asks for more than observance ef ~graam=n t scull give.


              ~g"

Strict 1_ 1C , a5 the Orga.^.1?3tlOn3 Ur2B, may call for a protective period
 t which only begins to run when the Cartier'-er-:<ss its Section 4 notice after the
 issuance of this decision, rat-Ier than one which starts 90 days after the co
 ordination actually was effectuated. iIe··_-:·=r, the effect of the decision is to
 give full recompense for all compeesation I05S occasioned by the unauthorized
 coordination. To add to tie several years of compensation thus awarded Agree
 ment benefits for five more years see mstc ma tc go beyond an appropriate remedy
 for the improper Carrier action. 5=d the Agreement procedures been followed
 lesser amosyxts would have been payable to affected employ=ees. Moreover, the .
    protection of sc.^..e section=_, such as Section 10; wcald be most needed during

    the period following actual coordination and should b=- made available for the

    period following the changes ·»hich cru-cd er..plcye_s to move their ?laces of

    residence. If Carriers consider this illogical, the alternative would be to

    adopt the Union proposal to start the protective period after Section A notices

    are given.


          (2) Affirmative O~c'a-s Directir~ Observance of Section 4 and 5.


    In this an! other cases tee Or&1ni2aricn; se=k affirmative orders directing the giving of notice of intended coordination and negotiation of an ir..plemencing agreement. Carriers crgua _^at the Refer=a >-as .no authority to order such a remcc:; a-.d that corpen:atcr·' pc·;-:_:nts under Section 6 and 7 are remedy enou,.h for failure to cbs°_rve Secti,ns 4 and 5.

-Quite clearly Secticri 4 and 5 impost re;C·irer,.ents beyond t^2 later . sections which accord com^_nsntory ~=n·~f_t;. It has peen held that Carriers must na~otiat^- an i7pl^cment:n~ agrie·nc~n: before purtl^g a coordination into effect. Dockets ':umber=d %0 .~d 5~. The req,iirema^.t is not simply a formal one; collective bargaining !:,ay help acl-lt~= a mere effective and acceptable plan of coordination than cn_ protulat-ad unilaterally,

 Nor is the Carrier argument that it ca^. obs~-r-.,e its contractual undertaking or breach and pay da.:~=es par=ua=ive. espacislly because it maintains that allcwanccs undar Section 6., 7 a-d othor provision; ccnstitute compensation for such breach. Clearly they do not; they are ind^pendently required by the AFraerent. The observe or brcac':,-::rd-pay approach n: lc.nger enjoys much credit in rcard to co7:^crcial contracts. In the rea1,m of labor relations it is an invitation to chats and, additionally- is impracticable bet-arse placing a monetary value ca the breach will sc often be difficult or impossible.

 Contrary to the contention that the Aorserent confers no remedy power upon the Section 13 Committee, .Section 13 specifically provides that unresolved disputes over "interpretation, applicati^n or _enfortom_ent of any provisions of this agreement" (emphasis supplied) m,jy be referred to and decided by this Committee. Such an assionrent would seem necessarily to comprehend a d=ecision as to how enforcement is to be effectua=cd. In the face of a Carrier ccnten-
                        / observ-

ance, that a violation oF _ Sectin_ns ~ an.d 5 neeeed not be .. rEro..,_died by their c4-~erv
 ante, nothing less than a direction to obser-ie them will do. (And if the par
 ties do not conclude the requisite aSrc-ement, this Committee car. writs one for
 them. Docket N^. 70.)

 Nor are notices and an inple-:enting, a,reec,_nt sterile, academic exercises. They require specific Carrier pcepcsls and pro ride the opportunity for Organization participation in d°_cidina how ~,cst cc effectuate the coordination, thereby brinoin-~ to bear the knc::l_dge and experience of the employees and consideration of their interests, which must he reconciled with the interests of the coordinating Carriers in achieving maximally efficient and productive arrangements.

 Nor wWld I regard the serving of notices and the negotiation and execution of an implementing agree--=nt as moct if, as is possible, the prot<_ctive period measured from 90 ninety (sic) after the coordination was put into effect should expire before such an agree-ent is concluded. :hose procedure; are important parts of. the Agreement and nctliing less than an implementing agreement actually achieved and put into effect will di3cr,ar_~e tl-n obligations of the parties.

 DECIS IOM:

 (a) The discontinuance of the 3alti-ore and Ohio City Ticket Office and the transfer o: its operations and services to the Cincinnati Union Ter.inal ., Ticket Office corsticuted a cocrdin-tior.

 (h) The 1 act: of a notice of cocc ~ination and of an agreement hetiaen the Organiaaticn a,cl tha ;,on-a;>;:~ic.:~xo^ ,o_ C;1= =2[:t provision> of the Wa;hin to:: ~·,-ee;:-_:~t co"Scr::;_~ -violations of CS_ l?,1s1·in;ton A-grec-.,ent.
 (c) The Carrier is directed to pay full b;ck pay (i.e. based upon' the avmra~e Of compensation earned in the 12 months preceding the dates of the changes and including all fringe benefits and improvements in pay and fringes since that time), less actual wages and/or benefits received, to all employees affected by those unauthorized charges until Section 4 notices are served and a Section 5 implementing Agreeaent is achieved. The protective conditions under the Washington Agreement shall be in force through ,arch 31, 1967.

 The Carrier is further directed to serve the required notices and negotiate the required agreement.

                    ---------------------------


              DOCKET N0. 107 --- Withdra~,-n by Parties


The Pennsylvania Railroad Company and )
 Lehigh Valley Railroad Company )
 vs. )
 Lighter Captains Union, Local 996 )
 International Longshoremen's Association; )
 International Organization of Masters, Mates )
 and Pilots, Inc.; )
 Seafarers International Union; )
 Transport Workers Union of America; )
 Marine Engineers Beneficial Association; ) PARTIES TO DISPUTE
 Sheet Metal L7orkers International )
 Association, System Federations 96 and 152; )
 Brotherhood of Railuay Carmen of America, )
 System Federation 96; )
 International Brotherhood of Electrical Workers, )
 System Federation 96; )
 International Association of Machinists, )
 System Federation 96 and 152; )
 International Brotherhood of Boilermakers,- )
 Iron Ship Builders, Blacksmiths, Forgers and )
 Helpers, System Federations 96 and 152; )
 International Brotherhood of Firemen, Oilers, )
 Helpers, Roundhouse and Railway Shop Laborers, )
 System Federation 96;
 Brotherhood of Railway and Steamship Clerks, )
 Freight Handlers, Express and Station Employes )

 QUESTION: 1. Should the Carriers' proposals for the selection and assign
 ment of employes set forth in the proposed agreements attached
 hereto as Exhibits "J" "K"> "N" > and "P"> be adopted for ef
 fectuating the coordination of Pennsylvania and Lehigh Valley marine facili
 ties, services and op,:rations in the New York harbor area?
        2. In the event it is determined that the Carriers' proposal

        concerning the selection and assigcm,cnt of employes should

        not be adopted in t heir entirety, o: hat provisicns should be adopted for

        effectuation of this coordination?


      DECISION:


          Withdrawn.


                          ----------------------------


              DOCKET N0. 108 --- Decision by Referee Bernstein


        Brotherhood of Locomotive Firemen and Enginemen )


                  and ) Parties to Dispute


      Erie-Lackawanna Railroad Company )


      QUESTION:


      "Claim of Avoca, Pa. Fireman W. J. Tuffy for being adversely affected by reason of merger of the Erie Lackawanna Railroad for the months of October, November, December, 1960 and January, February, March, April, May and June, 1961."


      d FINDINGS:


        I. '"he Extra Issue


      In denying the claims in this and other cases (e,g. Dockets Numbered 103, 115, 137, 139) the carriers interpreted Sections 6 and 7 of the Washington Agreement ac affording protection only to full time regular incucnbcnts of bulletined positions to the exclusion of Employees who were working "extra" or in furloughed status when the coordinations took place. Reliance for such an interpretation is placed upon the decision in Docket No. 95 which held that the guarantee of Section 6 against "a worse positic.n with respect to compensation" applies to a-bulletine position only and was not = guarantee to extra employees whose compensation psition became poorer as a result of the coordination. This interpretaion of Section 6 led the Carrier in Docket No. 121 to declare Section 6 inapplicable to regular position holders whose worsened compensation resulted from lessened opportunities for extra work. And in this Docket (No. 108) the interpretation put upon "position" in Section 6 was applied to "position" in Section 7 so as to deny claim of a fireman who, assertedly, worked regularly on a regulated extra board prior to the coordination but moved to the "emergency list", an inactive status as a result of the coordination.


      Because the "extra" issue runs through so many of the cases now before me, I shall discuss it at length and in detail in this opinion and shall include


r

                                _ 148 -

        facts and arSuments pertinent to it w:iich were presented in other cases in the group submitted to me for decision.


            The starting point is the follo:iing lam-uage of Section 6:


                (a) No employee of any of the carriers involved in a particular

        coordination who is continued in service shall, for a period not ex

        ceeding.five years folloWing the e=fective date of the coordination,

        be placed, ns a result of such coordination, in a worse position with

        respect to co-?ensation and rules ooverninv work_ng conditions than he

        occupied at the tire of scc;i coorl_nation so lonZ as ::e is unable in

        the normal e:.:ercise of his seniority riShts to obtain a position pro

        ducinS co:::ncrsation equal to or e:<ceeding the compensa Lion of the po

        sition held by him at the time o° the particular coordination, except

        however, that if he fails to e:xcrcise his seniority rights to secure

        another available position . . . to which he is entitled under the

        working agreement and which carries ,. rate of pay and compensation ex

        - ceeding those of the position which he elects to retain, he shall there

        after be treated for the purposes of this Section as occupying the po

        sition which he elects to decline.


_ In Docket ;:o. 95 a series of displacements by regular employees brought
        on by the abolition of the Telegrapher's position in the newly coordinated

        operation caused a former regular position holder to revert to the extra list.

        Claim was made on behalf of those who had been on the e:ctra list prior to the

        coordination ~jhosc opportunities for work and earnings were reduced by the

        appearance of the former regular employee ahead of them on the extra list. The

        referee decided:


            'A 'position" under the Telezraphers' Agreement always has meant, with rare e:cceptions, a post of erployment with a well defined place of work, hours, duties, and a fixed compensation to be periodically paid for regular work or services of greater worth and responsibility than that of a tnanual or menial hind.


            .:~3osition", regular or extra, within the contractual meaning of the term, are those that are advertised as such on the system of railroad in accordance with existing rules and practices and/or awarded in the exercise of seniority.


            Reasoned as above, additional ,)rotcctiva benefits are not al JOT jable in connection with this particular "coordination".)


        As I observed in Docket ao. 59, consistency in the interpretation of agreements is desirable, a.^,d there I followed an earlier decision under this Agreement w!t!: ~.:;.ich I disagreed. ?lost reluctantly, I must decline to follow


        1. The la::~ quoted is t'::e entire discussion of this issue in that

        decision`.

        the holding in Docket ::~. 95 because:


        (1) It is not consistent with the implications of Docket No. 17, an early case decided without a referee;


            (2) It is not consistent with the decision in Docket No. 66;


        (3) It is not compatible with either literal terms of the Section nor its regular application to those reduced to extra po3itions in coordinations;


        (4) It is inconsistent with several well-reasoned holdings in cases arising under comparable provisions of protective provisions derived from the portion of this Agreement at issue;


        (5) It is not compatible with the basic scheme of the Washington Agreement.


        _ I shall take up these points in order.

        (1) The Organizations cite Docket No. 17 for the proposition that em-

ployees come within the protection of Section 6(a). In r-hat case ten of the
 dozen claimants were, as the Committee's decision recites, "assigned to extra
 ^a board prior and subsequent to coordination." However, as the Carriers argue
 here, the decision does not "hold" that they were eligible for Section 6 al
 lowances because that was not in dispute. The Committee did decide two other
 issues. One is not relevant here (the effect of the failure of an eligible
 regular employee to take an available job at the coordinated faculty). The
 second issue decided eras how Section 6 allowances for these claimants should
 be computed. The case may have as r.uch or even greater force than a holding
 on the eligibility of extra issue because it was handled without a referee -
 which means it represents the interpretation of both carrier and orSanization
 representatives, rather than that of a referee - necessarily an "outsider," -
 fairly early in the. life of the Washington Aer=ement (1942) when this Commit
 tee had members who participated in or witnessed the negotiation and drafting
 of the Agreement. It seems most unlikely that they would decide how Section 6
 allowances should be computed if they believed that the claimants were not
 eligible iethe first place.2 There is the counter argument that the treat
 ment of extras in this case stem-ed from the Carrier'; offer of settlement.
 But the Carriers' memorandum to r:a dated August 15, 1965 indicates the present
 Carrier Members' belief that if the determination of the second issue had been
 2. Although the Carriers do not concede the correctness of the Organization
 contention, they assert that if Docket No. 17 is influential on this
 point, the Organizations are equally bound by the Committee's decision
 of the issue as to how to compute allowances for employees continued in
 employ:7ent who later suffer reduction; in earnin.,s demonstrably due to
 non-coordination develop-.ents. :'::c araur.ent seems reasonable. `,lhethcr
 the mold::;,^, of D~c:cet ::u. 17 undec;i~nes the later holding of Doc%·=t ::o.
 67 ('Part (3)), -is asserted by Carriers, is discussed in Doc;:et No. 129.
 - 150 -
 unsntisfa cto:-y the Carrier ;.:embers n?,ht net h;;ve felt bound by tile inter
 pretacioc: o` Section G -rlp licit in tl:c o:fer, But this .:aeries little per
 'bc:use as the discussiu~ Dcci:et ::-). 129 sho:-s, tl:e Carrier
 suasiveress .i i^
 party probablyw.^s unsuccessful in t',·,^ ccmputaticn cc co^~pensation issue in
 Docket :;o. 17. At the very least, the case S!l;`i:5 that within a fell years
 of the :.greem_·; t s Inception one carrier thoul;ht that Section G allowances
 were due extra employees whose compensation was reduced by the coordination -
 and that the Com;.:ittea did nothing to cast d,x·bt upon that view.

 (2) As the referec who decided Djc;:et 2;o. 95 observed, that decision stemmed in la=~c part frorl this reaso;:ic:g:

                                        ., .,

    I tried, but could not reason that the words worse position" ,- " ·,

    pear?nS in Suction 6(a) diffeTa._,, fro;.l t,le use of the u;ur-. pcsitiar,

    five more ti.::-s in the same Section, or i n connection '::ith its many

    other appearances elsewhere in the - S:eer,-.er.t of ,lay, 1936, Washington,

    D.C. Sce Sections 6(c), 7(a), S (c), 7(f), and 9.


IL- is to be remembered that he held that only an "advertised" position came
 within its corpass. Yet in an earlier case, Docket No. 66, I held, as urged
 by the Carrier mc;;lbers, that a non-bulletined; non-barb;incd a-tea board as
 signt:ent can qualify as a position for the purposes of Section 7. Docket N,;o.
 66 declares: -

    . . . The Carrier contends that the clain,znt did not effectively make such all election before lie was offered a "position' on the clerks'

                                                      .

    extra board. The Organizacion .alerts chat tile offer of the .,position,

    was not m.--,dc until after the election, under Section 9 and that the

    ., .,

    proffered status is not a position" wit tile me;nin~ of Section 7(c) 2.


                  "Position" The Carriers urea that can dean su^et!li.^.g other than a bulletined,

bargained position and the decision ;ie1d that this was so. This cleans that
 the reasoning of Docket \o. 95 on chis point t:as faulty and in conflict with
 an establisocd precedent.

 In this Doc;,et (10. 108) the Carrier declined the claim on the around, among others, that the Claimant was not the holder of a bulletined position and hence not eligible for a Section 7 allcl:ance, relying upon the decision in Doc!cet ho. 95. The fact is the= there were nc firemen ";os_tions" at Avoca and that all work in that classification was performed by men on the .I extra board" bccore and after t;,c coordination. Under such circumstances the denial of eligibility is completely at odds with the purpose of the Agreement. In turn, such an attempted application slic:~s how unpersuasive the reasoning underlying Doc',;et ::o. 95 is n;:d ho,.., much at odds it is with the earlier decision is Doc'cet No. 66.

 Carriers argue that if Docl:ct i;c. 95 is to be overruled, which they do not concede to be necessary or proper, the holding should be limited to claimant; holc!ine t':e ecuivr;ler.t of full-.roe ,jobs - as in Docket ::o. 66 and this

    Prom his .c;:ly to t!ic Oz.Saniz.lt:o:1 dIssenc.


                        - 151 -

    case. But bola the language and appl·_caticn e: Scctien.6(a) preclude such a result.


        (3) What must be decided is the meaning of "position" when it first

    appears in Section 6(a) and Inter in Section 7. As shown, that word, con

    trary to the reasoning of Docket No. 95, need not mean bulletined, barSained

    "position when used in SecCion 7. M:oreover, its sucseeuent uses it Section

    6(a) arc not necessarily limited =o such a "position", contrary to the argu

    ments made in D;c::et No. 95 and before me. For the seniority of extra men

    entitles then to priority in ass13,-.r.c_-,-.t in many situations - hence the "posi

    tion" ion L7 sne;cun of later in the section co-= be extra :cork. Even if this

    were not so, it is not u;i:;no%n for the sarc ".r :n to to used in different

    senses within tt,e sane document or c·,·en sentence.3 This is especially so in

    collective bar1gaining agreements often drafted by hurried and exhausted nego

    tiators.


    But the first use of "position" in this Agreer..ent and its application to "extra~ men are even pore persuasive of a result contrary to that reached in Docket I:o. 95. The languao at issue is:


    r No employee . . . shall . . . be placed, as a result of

    such coordination, in a worse position with respect to com

    pensation . . .


    'position.. there is used to compare t:ie pre- and post- coordination "positioa". In other words, "position" is used to describe the employee's "position" after as well as before the coordination.


      In Docket :;o. 9 the Committee was presented this question;


      Are affected employees who have insufficient seniority to obtain and retain a regular assignment, but who revert to and perform service from the extra list, entitled to compensation under Section 6 or Section 7, of the Agreement, or under a combination of both Sections?


    Its answela without the aid of a referee, was: "Section 6." Review of the record in that case shows that in reaching that conclusion the Committee


      3. In his comment on the Organization dissent to Dec1c!t No. 95, the Referee set out extensive Q and A before Ercrgenc;: Board No. 143 in which the (then) Tele;rap;:ers were arZuin- for the attrition principle. The deli-

. nation of "position" put fo nrard in that case for purposes of an attri-
      tion agreer:cnt Was thus limited to bulletined positions; he apparently

      deduced ..,,_. ~a. n~,ani_n,. ~..~ t.._ . izaticn deli-iticn was a Proper one for "posi

      tion" t!;rou-hout the Washington A-,recmer.t, which urns not involved before

      the Er..err;-.--y 3oard. The contc::ts d_ffer so widely and tire purposes o~

      the ec_:n:_;on in an attrition ..rra-=eme,^.t ace so different from cliose

      in protu;tivc arr..^,;,e::.c;·.ts that such a transfer seems thoroughly unreal

      istic.


                          - 152 -

w

      app.rcrtly rejectud the Carrier ar.umcnts that in order to qualify for a Section 6 allowance an emp loyee 11.-d to be in a rJ--i:-·-r "position" after the coordination nifected him adversely. I:ssent?a11v the same arguments were made '-n that case for that prop0siticn as were ;,a~c in DJe"et t:o. 95 and :;ere that "po!~-ition" car. oily mc;.n one who hole's a re.-ular position

                                                . .

      at the tine of c0orJin·ztion. It see.-~s quite c1e,:r thr.t i: ,position, when

                                                ·

      first med i;. Suction 6(a) does not r. ;n "re5ulsr p0sit;on. when applied to his post-ccordinntion situation it d0=s not mean regular position in regard to his pre-coordination situation. (Tho case is further discussed in another context in Docket No. 1.'9).


      Similarly is Doc;<et \o. 17 one cla_T.c:nt who had beer a reular position holder and reverted to extra status was _,,.corded a Section 6 a11oldar.ce. Indeed, this secas to be general practice. This Must be by virtue of their

                          · ·

      worsened past-coordination ,pos=t:0n,.


      (4) Several boards have applied the O;clahoma and Burlington, conditions

      to reach results contrary to that of DOc;<et Ne. 95. They are based upon

      Section 5 (2) (f) of the Interstate C;;mmerce Act which in turn. was derived

      from the Vashington Agreement; as the Cccmission has noted, all of its pro

      tective conditions follow the pattern cc this Agreement. So the experienced

      Francis i:obertson, as sole -rccibcr of Arbitration. Socrd \o. 84, held that

      Section. 4 of the Oklahoma Conditions", comprehended n.^,t only the bullatined

      position the claimant held during th_ test period tut all other assignments

      ., ,

      (which undoubtedly can include extra vaor::). H°_ observed:


          It uill be noted that the words "Norse position" as they first appear in the language of the Conditions are in line :with the provisions of tae statute. There can be no doubt that as the work position is used in the statute it -s not synonymous with job or assignment but rather connotes status, situation or posture. The provisions of Section 4 apply to all classes of employees operating and non-operating. It is co.^...^.,oa knowledge that in the cperacing group a large


      4. The_r%levant provision of Section 4 is:


          If, as a result of the abandonment of operation herein permitted and the purchases, etc., herein autl-lorized, hereinafter referred to as the trnasaution, any e7ployec . . . is displaced, that is placed in a worse pisition with respect ,.3 his compensation and rules governing his won.. conditions, and so lo;;., thereafter as he is unable, in the exercise of his seniority rijhts under existicg agreements, rules, and practice, to obtain a position o=oducing com;cnsation equal to or exceeding the compensation he :eceivcd in the position from which he was displaced, he shall be paid a ront:nly displacement allowance equal to the difierenee between the nonthl; co^pensation received by him in the position in which he is retainers and the monthly compensation received by him in tine position :coin ,:hich he ups displaced.


                              - 153 -

                                          -

            proportion of such employees wori< on assignm:nts which might vary from day to day. Hence in referrinS to 4n employee's Do_sirien with respect to compensation and rules governing c:or!c conditions it is a?parent that in this context the word "pcsiticn" cannot be intended to mean a specific job or assignment. Hence it is clear that what the Commission was seeking to accomplish in imposing the Oklahoma Conditions was to assure an affected employee that his employment status insofar as compensation and working conditions sere con:erned would be preserved to him for the four years protective period.


        The very same reasoning applies to Section 6(a); in addition, Section 5(2)(f), Section 4 of the Oklahoma Conditions and Section 6(a) of this Agreement all have the same purpose and should be construed in the. same way, absent quite specific reasons for different treatments none of which appears to be present.


        Referee Posers in SBA 226, case No. 41, observed, in applying the similar provision of the Burlington Conditions6. . . it is immaterial whether _-the claimant,- was an extra employee or a regular employee at the time she was forced to leave Hollis on account of the abandonment." In that case the Board did determine that she was a regular employee because she was the senior extra employee replacing an ill regular employee in a bulletined position; the Carriers claim that this is a limiting factor of the case. But, while not a square holding, the quoted conclusion and reasoning are of some value.' The referee observed that the term "position", when referring to both pre- and post-abandonment periods, applied to as many differing positions as the employee held in tt-,c test and guarantee periods and that the computation of


        5. In the June 3, 1965 arbitration a-Sara in the Chicago, Northwestern and

            Transportation-Communication case an extra employee's claim to a dis

            placement allowance under the 1962 strike settlement agreement was denied

            because there were other specific provisions for extra employees guaran

            teeing them 40 hours of work a week.


        6. It pavvides:


            If, as a result of the abandonment p=rmitted herein, any employee of the Chicago, Burlington & Quincy Railroad Company, . . . is displaced, that is, placed in a worse position with respect to his compensation and rules governing his work conditions, and so lend, thereafter as he is unable, in the e::ercise of his senio7ity rights under existing agreements, rules, and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, he shall be paid a monthly displacement allowance equal to the difference be'-Teen th..e monthly compensation received by him in the position in which he is retained -nd the monthly compensation received

.i by him in the position from which he was displaced.
                                            '


      allowances tool:. into account all comner.sation in those periods whether earned as anetra or regular employoe. That is assuredly true of the test period under the Washin.ton A3reecent.


          MI

      oreover, it should be observed that in Case No. 41 the claimant was an ~~extra"employee after the abandonment, but nonetheless was held to be in a "worse cositior.."


      In Arbitration ':o. 279 (Southern Pacific Co. and The Order of Railroad Tele,raphers, 1063) :re find:


          . . . the primary question. ultimately at issue here is whether the Burlin-ton Conditions are i.-tended to afford protective benefits to an extra employee who, following, an abandonment, is retained as an extra emp loyce, but is giver, a different assi-me-,t where his conpensation fails to equal that which he enjoyed on the position or positions to which he had been assigned durin; the immediately preceding twelve

          _ months. Put a little differently, the question is whether the word '1position" as used in the lan~.ua:,e, "placed in a worse position", refers to placing an employee in a Worse condition with respect to his employment, conpensation, etc. The Carrier agrees that extra employees dismissed when, extra lists are reduced because of work loss solely attributable to the abandonment, are entitled to protection under Item 2 of the Burlington Conditions.


      The Board concluded:


          As tic have reviewed the legislative and judicial history, and the experience out of which the vanic,:s rail:oad employee protective plans, and especially the disputed tan.--~a=a of the Burlington Conditions have emerged, we have become conviaccd that it was rot the intent of Section 5(2)(f) of the Transportation 'ct of 1940, and is not the intent of the Burlington Conditions, that a line should or car, be drawn bet-::een extra employees as such and regular assigned employees in determining who is

- if adversely affected," or who is entitled to protection against the ad-
          verse effects of abandonments . . . .

              __a


      This decision. came after Docket :7g,. 95 and the referee noted it.


      (5) The fundamental purpose and desl of the Uashington agreement arSue for extending its benefits to "extra's men and woman. Commonly under rules agreements in this industry covered won:. cannot be transferred to other; outside t;te unit. (See discussion in Docket No. 106). This factor made it ir.possible for railroads to achieve the greater efficiency a.^.d economies which merged facilities and services often ·ai11 produce. The Washington Agreement overrides this limiting factor of rules agreements and permits such transfers if effectuates: in accordance with its procedures; ?n recur:;, the r1^ree'-eat provides for allo-acnces to the employees adversely affected. The transfer of the won;: ;,.^rfe:^'.d by e:<tra men is ::o less prohibited by the rules agreements than that ,erfjr::·cd by reZular position !;oldcrs. A carrier ecn.--ionly co:1d not trans_cr cit-cr .._:;d of wcr:: w-c-a it ;.ot for the .;ashin=ten Agrcc,-eat. That AL,rce7-cnt, ha·!ever, eoes perr.,it trn-is l-^rs o: both categories of wcri;. (It should be :1otcd th,st this :.;,rec::.~r:t is not linited by the terms to conrdinationS i.n W`.1i:h tt1c rules tic) h:vc t!,ts prohibitory effect.) It would seem

rcacyi.Z~L'- to CJII_ 1L·d_- that t·t0·: Prot,- C::C11 0. tt? i:`,r;'.·?,^:nt all.^.Uld C2 CO
 .,_ and th_ relea e
 °-xtCTliiV:!'lit,l C~9 cG:riJn ~f0::_7i~:_J.. U° t_r: r~:w3 =£r_~..9n:i -5 5
 of that pruhl"'lti;:n '_V ChiS A ~~_-_.-.C:1C.
          .'- a Fu!b.itl.-t=al 5.'. :.'."..:r:'·: Of tile rai1:''1~ -";p.'·^vea population

Gc?:cr·.,i ,t would '._ .nicd th1 I'rot_ctir:'.1 :.f tl'iC A~rf~-7Cn: -C=~.L~C Ll·= app3rCPt pYotcCCi~n au^I.J~C::! ChCir WC:K b:' C::l=5 a;1ri:~'.^2ntS. ?'i~r:.w~r, if °sx:tras warp ex CludL''j :'.tom Section 6(1.,ly it'··iL:10 be 7.i~i-_C _:Y C:irrici'S t.^. CanipulatC the sc'op'1. of this A;~i'.%:,1Cn: ;'1'..!71`1 t',`7 11.·1ny f^-',v~Y 'Cc,,!lt.r p.^.jiti :n5 a^.d morc~
                                                      '


entras at 4i^':~<.~ pCJOC· `:i`.lt s'1.'.', dr-::rli;-`.:CP:s ~':.!.aC,: .)OCti~n 1.2 of the A.greCment would '.)c dicflcul:.

 Tendinil to th:'. same conclusloll i3 t',e drafting ~~SC':r~ of this Agreer;Cnt.7 The Mad' i prop·:,sal cf the Carrier> in':i~,?_d thes_ prc·:isi:.ns:

    It its the int_er;=io', OF. t'-,e oar ti=s 'b_c. the ecotc'nncior. ^_llov;ance

    ccntemo l.';_=;1_iR _ it_,~se- -_ _~ 1i_ '._._ .·''-.t.= =`'- _=~-.'1_ar lY .2s4 ip:~d i=-

    C:mI::Vtt of c'·_no= 1o.__O^4 t___f.'_r=f-"7,, :t' 4~i',g 'J.',: C~to.^.c Lnat in no event 511:111 th't ,llc::~hc'eap~!`JCJ .I;JCe tv:un ^^2 i:wir$On 'Sith tEspeCt t7 dny one pcsItion. (emphasis ~dd~l)


and

    It is tl?C' in'tantion cf the par=i-_.^. thot ti,_ protecticn calgainit reduction in ra!':_ of pay pro';id.ad. for in t;:i. s2<.t:o:sh?:L: apply only to tt... regul.irly assign^d incor^·>1'it of t;:-- pcsi:ion a=fsctec, it being understooi t1:ar ir, no :,Ie-t ::1:11 --A·C ~r0:·_·~·:i0'1 arc'lv :;/ more than 0.^._ Derson With tespect CO ar;a One r.'?·iC1=,


Jc~tlcn ?1L) cz:ntains lang·:i~ge ~'J-.=t!''i::~ iikp~ _.._ und-'Scored -portion Of the iiYC·i L'SYC~I'.:?.'. _ '.':Led . above, ':"iL'h, 110:v=vr=.,. S_,-,= ?ip.ifican: cla^~.e5. But Clothing 1it;c- tn= secon·i pa-agt42r -f=c-c%inz, _:d.=as ,._r~-~.~:s~tio n was incor?orated in Se=rion b Of _:._ final e1~, -Q:T...'.ar, r.~l`..itt: te^d> :J SUF:yeSC that the Cirriers did 'to% pLC'/ail, t.. this loin t. O= coLrS°_, drtAting ch%:.<_es can have -.any expland-(a:_, e.S., Char th°_ _0'1'b'l3_;°. ii unnf·ts'u:ary ~2:rli!S8 tile poin: LS already c0;'t4wrl in ano"'er fns::ill: n: '_s _-7i.=··:ir 5.^. ti mor_ Sen°cr?1 $rate·m°snt. Nonet^Cless, r.. Lc:tt~'C pl~a.:l ._.^.d its E·li..^.iS._oti0` e·=e.m tc regativ'e tee

 7. ilcit~°_r p.nrr- Cited t,'is ' c '^i V?e rarrip:ri .>i'Otlid.;C!. 2:e with the
    hintri r_v, prop=_rC. t·y tla- _I' an i2LC-"OCS. it','hc tlted i·. ar3':M-:1t On

    Doc:'.t -ic. 117 f:'r t"-,e pr,:'17.si:i0^ t_:: C·':e basic ?~v;_00?= of the .fig.!°_=_^°_nt

    i= Co':::(?n~:Li:Y. AS Z :.= ulrrar~,v' t)e[scuaeJ :,f this, I di'i ^."C refer to

    tl'e i.:7COf '_r '.E scln-, './ co^c._-cion. ... t..~.: t°-r tl'C Ciri'-`.r~ l~dl_bCEd

    that a s·l.c:itlc ~hri'.:~2 :·C<u·r°edt,·ut ~viS'1_._%ant cc -`.h·: 1saC . h3i al

    rC<:dy dc;ci&3. 12: I'iatd,i'^ .:_ ..._.'.CC~ Gn th:;t ~olrt, I was struck 7y the


    lv.r~'~P~C C_'0::._ r.`E:oF'.


        i· ., ( t>- ', ,, r;; ' '::'yn~r ' C:.'..7.O~ CC'lc'in:l'c-r

fj. .C70_ C C %".1 -?~' L1 ,:::C; _ .1 =~J b
    1.C· .,!t._ _ :1 Jt:v1.iCS ..c' ',:or:__.7=C'.s ;j1 C`. a C':.,_-iCLCC :Cf.r.lSLnti~,

    GJi_._t'= ... t: V..it0r: .._C-,t·:s C" t` _ ~t.·":_:t O:. Pr::tc-tiol! .-. R~-t5

    ar:-' lntt1L-<< PE !:,'.l·. . l .,·ol:;~.. i;-.;!red in .. C.:.Jr':ir.at:-n c= .'ai.-


    C'C"t!_ on 1:' _. i~t.)r:_._~ . ;. L:~, - / r,ri~t=ilvi-,

contention that the parties agreed at the outset that only regular position holders were covered by what became Section 6.

              The Problem of 'hIindfall" Benefits.


As noted under point (3), Section 6(a) applies to all crafts and classes. To limit it to bulletined jobs would exclude whole groups to whom it obviously should apply - as with Firemen in this case. For the many reasons noted, it seems inappropriate to limit Section 6(a)'s procection to those with the equivalent of full time jobs. As several cases sho·a, some extra men make more than regular position, holders, so;.^.e rake about tho same and many make less. But many extra men and ~·ome n ;nor'.: hundreds of 'ours a year and earn thousands of dollars. In other words, many extras have a regular and substantial attachment to their railroad jcbs a ::d are dependent upon those jobs for at least a substantial part, if not all, of their livelihood. Where the attachment has been tenuous the test period carvings will tend to be low and easily matched 'and exceeded by post-coordination earnings.

 Where employees are "furloughed" at the time of coordination, Carriers argued, they might capture large windfall benefits because the test period under Section 6(c) depends upon the 12 months prior to his displacement "in which he performed service." The fear was expressed that some remote period in which employment was reou'_ar and earnings high might provide a high test period earnings average for employees whose actual work and job connection just before the coordination were slim. To a considerable extent, perhaps completely, such a possibility is obviated by my ruling (see Docket \o. 103) that there must be a showing that the lowered earnings are due to the coordination; little or no wore: in the year or many months preceding the coordination would tend to
 ,show that the coordination was not the cause. Despite such a ruling which tun.^.: on all possibly relevant facts, Carriers persisted in arguing that all "furloughed" employees be exclud-=d from the cover of Section 6(a) last they obtain such windfalls. In our mid-July meeting I asked the Carriers to search. for examples of such potential occurrences. Their mid-August memorandum reported no example -in the presently pending 'roup of 30 cases despite the presence of many clai6 for extra and furloughed er,ployees, nor were any examples from. other coordinations proffered.

 It also was argued that on some properties it is the practice for furloughed employees to be able to decline extra work offered on other than weekends (impliedly because they hold nor.-railroad week day jobs) or for less than the equivalent of a full time job. Hence, the argument goes, they can refuse work but get the benefit of the guarantee. But that is not so; Section 6(c), which governs the computation of allowances, explicitly requires the subtraction from benefits of pay lost due to "voluntary absences."

    9. A difficulty with any such distinction is that from craft to craft and carrier to carrier cL:sifications end practice vary greatly. I believe that t'.^.e test period :,-·L2raZes and .^.y ruling in Doc%et \o. 103 protect against dispr ;,ortion;to a11o-anc_s.

                                                                1


        For all of these reasons, I interpret Section 7 as providing protection to "extras" with the equiaalent of fall-time po>itions and S,^c-Vion 6 to be available to all cetegorics of extra. and furlc"-'n:3 empleYees

        5 (theri is no

        contention thct they arc: not "e~rplove2;"' , where they establish

        eligibility under those prooisioris.10

        II. Th e Issuc of Ad-r^rse Efl_`rct


        The Erie -Lacl;swanna t:orger caas appre::d by the ICC in mid·-September 1960; the ICC set Oztober 17, 1950 as the eff2ctiie date of its c·_der: A few days before the lattsr date, a-.ployee r=p-:.,=ntativ=; c-tain°-d a:^ order restrain-

        ing the newly-cergsd Carrier from abolishing pcsiticns or furloughing emp:cyees

        in effectuating coordinations is the absence of implemcntin; agreements. That order was subsequ=ntly dissolved bat was reinstated while a direct appeal to the United States Supteme Court was prosecute.3, In May 1961 the Court ruled adversely to the employee representatives' claims. Meanwhile in early February 1961 the Carrier and the Brotherhood of Locarctive Fireman and Enginemen reached an Implementing Agreement.


        Claimant and the Organization claim that he eras adversely affected on October 17, 1960, the effective date of the ICC ordsr. The Carrier contetids that it made no changes in operation that could h-~-rc affected th~ Claimant prior to July 1951. it states; no cruel rw=r.Oin..j or conscli3a=ing of work assiJOsneent-L in Mr. Tuffy's seniority district occurred it,:rcdiately following the date of merger." Alrthola-,h this might possi::.ly b-_ read as not pertaining to changes allegedly made on Octoer 17, 1960, I think it was want and taken as a denial of Claimant's allegation as to adverse effect o^ and after October 17.


        The Claimant and O.-ganization assert that en October 17, 1960 there was a reduction of former Erie m=n amounting to thtee train crews. This allegedly was caused by the shutdown of the former Eria freight rouse and a change in > .. switching arrangements and a change frcr: Erie-Ls.ch,·janna crews in serving certain industries; and in March 1.901, allesedly some interchange worn: formerly handled by former Eric Crews was assin=d to for~cr Lacl:aw·snna crews. Mr. Tuffy's re pwval from the 1·!ycrring Division =xtra list, the Carrier maintains,, resulted from a deterioration in b,-sires; which beean long before the merger and has persisted and worsened since.


        As I have noted in Section 1: Cc7-,:tree discuseicns, a record consisting of exchanges of correspondence and o=serti=ns in suhniss-ns makes resolution of issues of fact extre-ely diffi-.ulc. lloti?v?C, unccncroverted assertions of the Carrier lead T__ to conclude that the Claimant and the Organization have

        not shown that there were coordination chances prior to June, 1961

        ^oval frc~ the ehtra which were

        the 's relist and t~:c cons-quest diminu-

        tion of Claimant !

        tion of his earni-igs. So, for t:;a-.ple, the Carrier statcd, without contradic

        tion, that the shur66cwn of th= fcr:-ar Eris fry=ig'ric scacicn did not result in


l

        10. T1:is is a holding as to =h~ ot~,cr cases in the group pen.aii·g before

            me in i:l1ich tl-., ..,~.^_ is directly in;cl~:_~-1. As noted a" the eucsct, all

            of ti:c ca sea :-ithrtlii; car°cn issue - cnd th-= related one as to Section

            7 - ai.o discus-c%' Lour-t~icr l;_rr for ccn-enicnce.

the loss of an assibnment, noting that prior to October 17, 1960 only one car was handled there three times a week wit`.: no more than 30 minutes required to spot %nd pull the car on e.:c'n occasicn. Moreover, the prcse^ce of "subs tan tia1" industries in the vicinity req,:ired ecntinucd servic= by former Erie crews. And I find thut the thrcc other causes cf crew reduction assertedly resulting from chann-es in operations in October, 1960 made possible by the merger were refuted by tl,e Carrier. In addition, during

the five months preceding October 1900, Claimant worked no more than 3 to 6 days a month on the Wycmin;, Division in contrast to much greater employment during the period Octobcr 1959 throu~.`i April 1960.

. which buctresses the Carrier argument that it was poor business rather than merger which bro:ght on the Claimant's loss of work.

    For these reasons, I conclude that the claim is without merit.11


DECISION:

 The claim of Fireman W. J. Tuffy was timely filed and he would have been eligible to receive a Section 6 or 7 allowance although he only worked "extra". The claim is denied, however, for lack of proof that any merger or rearrangement of work on the Wyoming Division tool: place prior to June 1961 which adversely affected him.

 11. Anotlicr carrier ground of denial that the claim was untienly filed
 washed out during the scaring.

                        - lrJ9 -.