Brotherhood of Railway and Steamship Clerks )

 vs. )
 Memphis Union Station Con?any ) Parties to the Dispute
 Louisville & Nashville Railroad Company )
 Missouri Pacific Railroad Company )
 Soulhorn Railwa;' System )
 St. Louis-South-:estarn Rai1·_ay Company )
 Illinois Central railroad Company )

 QULST:O-:::

 (a) The transfer of station work and services from the Memphis Union Station Company to the Louisville and Nashville Railroad Company, the Southern Railway System, the St. Louis -Southcrestern Railc:ay Lines and the Illinois Central Railroad Company is a coordination of separate railroad services and facilities and subject to the terms and conditions of the Washington Agreement,

 (b) The Carriers violated the terms and conditions of the Washington Agreement when they failed to furnish a Section 4 notice of intended coordination and failed and refused to apply the terms and conditions of the Agreement for the protection of the employes affected by the coordination.

 (c) The Carriers violated the terms and conditions of the Washington Agreement when they coordinated ::=mph is Union Station work with Louisville and Nashville work, tiissouri Pacific work, Southern work, St. Louis-Southwestern work and Illinois Central work without an agreement for the selection of forces from the employes of all the Carriers involved as required by Section S.

 (d) The Carriers shall now be required to restore the status quo and apply all the terms and conditions of the Agreement to the coordinations involved.

 DECISION:






Transportation-Cor.-unication Employees Union )

The C=orgies railroad )

 ''Are J. Sa·^>tcr, "illy I?ad,'.:ny -nd all other employees, includinZ tt.ose as
 S1; .l'', tb .fl. a:.__.. f`Ca__' o_ :C:LCC2 .._. n.. L1:.. _.,tl.. b0ard, :Jl:p .:i:r~ .·.fiac.cty C...
 co._c'.?.,:!t?on`o: ti._ _cpa=a"_ tr:in di~;~:_,:!;i ~o:.ices in Atlinta,^Caor;;in, of
Atlanta and h1e;= Point Railroad Company - '-he L?estern Railroad of Alaba;r= and Georgia ".aiir^_ad, anti=lad to pr:t:c=eon of Section 5 of the ',lasi:inbton Agreement to the extent applicable under t:i_a for^u la pre3crriD~d ir: Section 6(c) !hereof, and other applic=ble pro :ac=,~:e prcvisi_ris :..s provid=a in tae Implenanting Agreem=nt of January S, 1952:"

 FINDT':~S
In anticipation of the t:_rger of dispa=cning facilities the Carrier end the Atlanta and `rtcst Point Rail:_=y Co. n=_Lotiated =.. implementing Agreement o·ith the Organi::ation un..or the Was~:ir.g:ez At,rc_.,arc. -h=- ,..,c issues presented are. (1) Are c.^plo'Yeas in o%tra status prior :c ;.=rzsr eligible for Section 6 !isplacemant allowarces? u7d %2,1 If _..- _=qerr to (ij is y_3, ar= the lea>-:lea post-ccordirat=On earnings of cl i~zant -Silly t~6C=:·'=`f dug Lo abnormal coordinatiC'1-caus,d inflated earnin.-s prior to the coordination and, if so, is he thereby not eligible =or a displacement allow-=nee?

 (a) The E_::tra Is_s:,e - For the res=_ens more fully set forth in Docket No. 108,
 the answer to (1) is "y=_s, .-picy=_: in extra status prior to merger who are con-
 tinued It is noteworthy
 tinueci in that category a.re eligible _r:r Section 5 alloaanc?s. that the average test period hours of t%:e only Clzir.ant for whom such data was furnished -was 199 a mcnt; --ran if all of ti-e. overtime hours worked in N'oveg:b-er and Decen·ber 1961 ithe only ones I find -hick ray
 possibly fall within the category "unusual and inflated"; were subtracted., extra. =elagrapher H3daway would have averaged 187 hours of -ork a month prior to cocrdinttion, an amount not always equaled by regular position holders.

 (b) The "Infl. teB__ ° _rnings" Issica - Having decided that extra Telegraphers are eligible for Section 6 disa1_ac:ment a llo'ances, the sole remaining issue is whether rlr. liadaway's earnin33 were abnormally h:g,; bsta-se of the coordination be=ore it was effectuated so that is the m.nt'hs aft=r coordination, when his earnings 'ell below his test period carnin=s, the _=ficit was c=:is°-o not by the normal effects -- diminished work oppert,:nities due to increased efficiency -- of a coordination but by reversion to to ordinary pattern of c,nploymsnt. Even if this c;ere so, the Organization argu=s that nothing in the 'Srae-.=nt wzrr_ncs ignoring or excluding them. Essentially this Haas the issu= in Dock=-t No. 62, where I held that an employe :;ho had frequently ::old a -second position because the Carrier was not filling vacancies in anticipation of--42' cocrdina=ion was not entitled to a di3placem=nt allowance when the only attempted proof of post-ccordina=ion adwers<e effect consisted of earnin,s lower than the pre-eccrdinaticn test period a':araga thereby achieved. Both Carriers and Organizction object toe different ast^c.=s o_° Docket No. 62 - those which are disadvantageous - and applaud, or at last accept, other aspects.

 I have beer. given no persuasive reasons for cha -l~ng the analysis of the Agreement presented _,. t';:at case. Intensive reccr.sidaration leads me to reaffirm its major principles and expand on certain aspects of it.

 It still ace^.s sound to test "adverse effect" in part by comparing test period averaLe,_rni:;.-:= vith ;cat-cocr.a.i::ation actu<,l _arninga and to treat a deficit as presu~.p=iv,:ly t'-:= result of a coordinrcicn. -'his is so because the Sect_cn 6 (a) basic ~,~ .....ntcc is --~.inst s.'orsc,ed c^..-,:-.e,;:.cioz and actual saving effected by n t::crLer :~adlti-:C1r 177~'_,t upon cmp loyCLs zr=- -o difficult to trace in complc:: sit'.:ati.~n.
 whcre so na7^.y variables interact. Su c:i a si:o:·_r.0 is prcp3 r 1y ub'cct to rCbULL-11 that the lc:;cred enrnin.-s dc.ons-r-bly result frc:n a c_ ~. !.e 1'
                                        ~,.us= other ",= n the C, :mi

tion of jobs or ration al ization o_` ·.:or::. T:: i= sccon c sr_a-- properly der i·;cs from
 the prow=sons of Section 1 whi-cn ~Ocla_'c, t.^.;:t Carriers do not i::sure carnin,-s -
 against all hazards, but only tt.icse stc--.ir.~ ~rom coordination.

 Employees also argue that by not fillinl- jobs before coordination the Carrier
 is able to save twice - first by not em21ci.- __-cone to fill a job and thereby
 avoidi -~, a guc.r..r.tee to him and seco-d by e? i;.:nating the unusual c::er t_7:e worked
 prior to coon-'ination by whoever -..tans the u::=':' lied job w`nen measu:'_n~ whether he
 has been adversely 4=feet=d. To do as the OrC;_nizetiov urg=s would: be to ra:;e car
 riers guarantors Of tl:Ci_ prC-CCOr(.inat_On t. tai pa·_Olls. u!:- ts.u.C ACrCeC.:C.^.C _5
 desifrlcd t0 protect c.':p_cye°-s a-ainst rCGUCti~.. Of t:':e~r normal C:.'~.^.in.^~5. .,.1i1C in
 railroad arbi`_ration there is a- observable ,_ndency to hew as literal-_y as possible
 to agree--',ant lan~,UC~C (a course ur,-.c~ _r. t=1 = ase by the Unions), resort t0 ~.
 p;1_ O
 sive interpretation see:.·s necessary iG _ tike pre?er balance bet;een Sections 1 and 6
 is to be appro:cimated. hence, I reaf_irci the holding of D.)c:;et NO. 62 that where
 abnormal earnings occur in the test period which are caused by anticipation of a co
 ordination, such earnin.-s are to be ignored in determinir:S whether an employee has
 suffered a decrense in compensation attir>>utable to the ccordinati:n's effects.
 ParentEetically, I note that the individual e:,,ployrer_ has the full benefit of the pre
 coordination additional earnings and is no worse off than any other employee in re
 gard to post-coordination employ-ant.

    In this case, Mr. Hadaway s test pcricd earrings are claimed to have

                            Or ab:;o_'nai pc-iobeer.

flin-
            ·, abnor-alto re1_. _ dated by (1) =eG _ work tcs of sicknr.ess by re~.ar

employees; (2) abnormal. relief cork for an operator who relieved dispatchers wino were
 training to qualify as dispatchers on the other coordinatin, Carriar as required by
                                        -,

the Imolece.^.t-_ag Agrec-c^t. As to the al!egedly· abr.crc,.. s=ci;,^.ess, "fr. cfada:;ay re
 lieved on jobs usually manned by two emplcyces cr'l~ mere absent for many mont'-s due
 to sickness. Dut such relief work is one usual `.:ay in which men workinextra catch
 work, so that it can hardly be called e-:trncrdinary. e1=- to (2), the relief :nor:; per
 formed by :=r. lfada;:ay occasioned by this was concentrated, says the Carrier, in Octo
 ber, November and Dccc mbar 1961 and January 1962. Ha,_,evcr, as the Carricr states,
 some overtime is to be expected. That worked Burin; October 1961 and January 1562,
 16 hours in each out of total emplcy-,ent of 160 and 12=, hours, was not out of Iire
 with the pattern of Claimant's overtime in otllcr months of the test period. Novem
 bar and December 1961 present a somewhat di__crcnt picture. In each month overtime
 totalled 72 houll (for $279.72 in overtim.O pay-,ants) out of total hours worked of
 176 rend 163 hours. This compares with an a·`era~e of 13-'1 `!ours of overtira (for an
 average of $51.50) worked is the seven other months in which he worked overti-.e.
 Taken as a rough measure, overti7.a in excess of this average if shc:n to be caused
 by this paculiar set oc _ pre -coorcinat_on circa- tances r:cy properly be iZ-..orcd in
 coriputir.- .,. ' period a··erc,..c. TI.--L only sc:.:c of the Lest period ovCr-
          '..ada;:ays test ror .~

time should to excluded -- and c-1·; a;en shc::n to be e·:cessive and directly due to
 the impending coordination -- is shc%n by the fact that ~=tar the coordination
      t

lfadariay s Ca.-_s~5 V.w._c:.iC,a. t1:C test period .=. O.a~^ (O_'.'·p:.._=d with".=l)t any Subtraction

 t
 in five of t;:a succee__-g tairttcn -.c-nths a.^.? that in C.:o other r..o:a:ls :he guar::tees
 claimed (deficit of carni-Os visa-via ~~.r.-to=-) were but $10.60 and $29.93.
 DE CISI0:; :

 Claimants, extra e-ployces prior to coordinati-n who were continued in service in that cate.-ory, were eligible for displacc:ient a11o·=ances if they can show loss of ea:nin,s attributable to the ccerdinaticn. Carrier improperly dented eligibility on the orc'und "let Claimants were extra board or extra men. In computing test period averages, it i5 pr0^cr t0 exclude overtice tarnin_s in C-<ces$ Of average overtime if directly attributable to increased pre-coerdinacien work opportunities caused by the impendin.- coordination.

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


            DOCK ST '.'O. 138 --- Decison bv,-,,cfere^ zcrnsttein


Trans portation-Oc-unicat ion Employees Union )

              and ) Parties to the Dispute


Erie -Lacl;awannn Railroad Co. )

 QUESTION
"Is Mr. L. 11. Hunt's claim for benefits for the period August 1962 to January 1963, inclusive, barred by the September 11, 1961 Letter Agreement?"

 FI\ '7I:;GS
On September 11, 1961 the Organization and the Carrier entered into an Implementin.- A-,-cement and, on the same- date, executed a 1?ecorandum agreement. The latter specified that co-pensaticn claims by employees claiming to be adversely affected by the 1961 merocr must be filed on an agreed form "within 60 days following the last day of the calendar month in which cc.-,lpensation loss is clai^ed."

 Mr. L. 11. Hunt claims such a less for the period August, 1902, through January 1963. The Carrier denied that claim on the ground that the requisite fore: was not timely filed. The Or.,anization counters with the assertions that althou.-h the General Chairman rogues-~64 test period earnings on Novabcr 11, 1961, the Carrier Improperly neglected to provide them, as assert=dly required by the Implementing and `_rorandum Aoree-onts until April 3, 1963 and that this five months delay excuses the failure to file the claim on the specified form :,-thin GO days of the end of August 1962. 'Mes facts are not in dispute. In addition, tie Organization claims that this Clai-ant -and ot;:ers -- did not receive .-?ividual written notification of the claim requi_-er·,2nts as c,~lled for by the A~Irec-ent; but the Carrier asserts that the required dOcu c:nts were -...iced to all of the employees ·_., "2 unit. Both could be correct. But I find it unnecessary to resolve the factual dispute :or the reasons which appear later.

    The following are the pertinent excerpts from the parties' agreements:

        (1) The Implementing Agreement provides:


                              ARTICLE IV


            1. If as a result of the merger an employee is displaced or deprived

            of employment, upon written request of the employee or his representa

            tive to the Superintendent, the carrier shall promptly furnish to such

            employee, with copy to his General Chairman, a statement showing total

            compensation received by such employee and his total time paid for during

            the last twelve months in which tie perfcrm=d ser:rica immediately preced

            ing the date on which he is displacca or deprived of employment.


        (2) The Letter Agreement provides:


    n

            1. The Erie -Lackawanna Railroad Company will furnish the General

    ' Chairman and employee as quickly as possible after the date of written

            request, information as to total compensation paid (calculated in accord

            ance with Section 6 of Washington Agreement) to involved employees, as

            soon as it is known what employees are affected.


            I2. Any employee who is adversely affected and claims compensation loss

            will be required to file such claim with Superintendent on form similar

'"'~ to sample attached herewith within sixty (60) days following the last day
            of the calendar month in which compensation loss is claimed, . . . Fail

            ure to submit claim within time limitations prescribed herein will bar the

            claim unless such failure to submit can be proved to be due to circumstance:

            beyond the control of the employees making said claims.


    The agreed form calls for: specification of =he rnnonth for which claim is made; earnings from the Carrier, other Carrier payments, other employment and unemployment compensation for that period; and the dates on which unavailable for service. All of these items are pertinent to the computation of benefits. However, the form does not specifically call for test period earnings, a computation which is thoroughly reliable only if prepared from the Carrier's own records. Item 6 is "Basis upon which claim is made: ~~ followed by blank lines for the statement on that point.


    The issues to be resolved are (1) whether the alleged failure to provide the Claimant with a copy of the form and Letter Agreement excused the late filing and (2) whether the Carrier's failure to provide test period earnings soon after the November request excused the late filing in the form required (which apparently occurred after test period earnings were provided in April 1963).


    It is not possible to resolve the factual issue of actual receipt of the Letter Agreement by the Claimant, although it is entirely possible that he received it in 1961 (for there is no reason to believe it was net mailed to all to whom it was due) but did not note its significance or contents sufficiently to recall the receipt who.-. his statement (the candor of which I do not question) was made in 1964. It also is possible that the mail miscarried. However that may be, a full ten months elapsed

    .between the execution of the Agreement (9/61) and the claimed adverse effect 8/62).

    Practically all of the claims filed during that period were on the required form. It


                              - 213 -

    wide-spread use and the generally hiSh level of infor.,redn_ss as to employment matters among rail=gad employees give reasonable a;sursnce chat the Claimant had actual notice of the requirement, which was the pnrpcse of requiring chat copies of the Letter Aorce;;ent be sent to emplcyces in the unit; his representatives surely did. Early in the life of the Aorcement failure to conform with the prescribed procedure would be another matter if there were a q,~estion about the employees' receipt of the .-Agreement. After almost a full year, it stretches the imagination to conclude that affected employees were unaware of the requirement, to which the Carrier quite clearly has attached great importance.


    The next question is whether the nature of the claim is such, or the form or the two Agreements are so structured, as to require test pericd earnings from the Carrier before timely filing can be required of the claiming employee.


    The parties are in disagreercnt as to the relevance of test period earnings to a claim for displacement allowance. The Orflanization coetends that a showing of worsened compensation is an essential element in determining adverse effect; they assert that the decision in Docket Pro. 62 supports this view. There I said about eligibility for displacement allowances:


        In the normal and usual case, applying the. fc-muia of Section 6(c) will show whether an employee is "in a worse position with respect to compensation."

^i In other words, if an employee drops below the "a·.Yerage compensation" (all
        earnings) for a period equal to or less than the "average monthly time paid

        for" he makes out a prima facie case that he is in a ,worse position than be

        fore the coordination.


    The Carriers (while endorsing the result in that case and the reasoning that the test period was abnormal and hence lessened earnings in relation to it did not show a worsened position caused by the ccordinaticn) assert that the formula of Section 6(c) for computing displacement allowances (roughly the difference between the precoordination test period average and the post-ccordinacion earnings for comparable periods of work) has no relation to a determination whether employees involved in a coordination arc in a worsened position because of it. The interpretation of Sections 6(a) and G(c) [and G (b) as well, in my judg:mentt3 is pertinent to how an employee is to judge. whether he can make a probably valid claim for a displacement allowance; if-d4comparison with the test pe:iod average is an essential element in determining eligibility, he must have that information to make a claim; if it is irrelevant to establishing eligibility, he need not know it in order to make a claim.


        The starting point, once more, is Section 6(a)l. It guarantees that


            no employee . . . involved in a coordination who is continued in service shall, for a period not exceeding five years following the effective date of such coordination, be placed, as a result of such coordination, in a worse position wit?: respect to compensation and rules governing working


      r

            conditions than he occupied ac the tun= of such cecrdination . . .


        1. The Carriers ceatcnd that the newt six paragraphs (including this one) go beyond the necessicies cf tars case. t.oa.:v:r, they explain the r=lationship of test period earnin.^; tc "displac-:7cnt". The other issues discussed are pertinent to asccrtainin;; the rclaticnship.


                        ` - 214 -

In part the Carrier position is based upon its contention that "position" means regular position so that it is the loss of that position by abolition or bumping relating bac'.: to an abolished position that establishes "displacement." This view of "position" has been rejected. (Docl;ct No. 1C B). Moreover, the Carriers would apply the test of Section 7(c) to Section 6; considering th= great difference in language employed, it seems incorrect to read the spcc.ific definition of Section 7(c) into Section 6(a). Rather the latter. Zuarartce; to all employees in a coordination that their "compensation" and rules governing working conditions "shall not be worsened" for a period not exceeding five years following the effective date of such coordination.

 But it does not come into play until the individual's compensation is caorsened, requiring a comparison of his compensation before and after he is first adversely affected.

 When he is "first adversely affected" could mean (as urgaad by Carriers) when he loses a "position" by abolition or bumping, which, however, need not reduce his earnings. Such an interpretation would be inapplicable to those without bulletined positions who are, however, continued in service and receive the protection of Section 6(a). As to these, only worsened compensation could be the test. In addition "adversely affected' would seem to r=quire =-once actual detriment--that might be the loss of overtime on his own position or extra work on another. Actual earnings detriment would be the signal of "adverse effect." The ether factors support this conclusion. Section 6(b) provides that the protection of Section 6(a) will be made by a "displacement allowance." A "displaced eoployee" is one who is "entitled to such an allowance," which .could seem to m-=an actually entitled rather than possibly entitled at some future time when another factor of eligibility !worsened compensation) would be necessary. Furthermore, under Section 6(, c) the displacement allowance is determined by averaging the compensation of the individual "during the last twelve (12) months in which he performed-service immediately preceding the date of b.is disolac-_ment" and subtracting his post-coordination co.^.^.pensaticn--the difference is the displacement allowance. This seems to .rvzke "displacement .1 and "adverse effect" equivalent. The Carrier mombers (and the Organ iz2ti-,n members, ot'nner than the Clerks; reckon the test period as the twelve months in which tie employee performed service immediately preceding his worsened co7pensation. So that the test period and the period prior tc6the individual's "time of coordination" (i.e., date of his adverse effect) are the same.

 In sum, in order to determine w! :ether he is adversely affected the employee continued in service must know his test period earnings.

 In addition, the Implementing and letter A.groements seem to contemplate that relation: the specific provisicns that test period earnings will be supplied are

    * While the question is not directly concorned here, there is the problem of delay cr.used by Or-,anization obst_nacy (os in Doclfct No. 119); in such a sicuation tl:_ effectiv^- date s'^ould `-u t!:^_ 9011 day after notice. The Orq:nization cennot hav= the b·:ncfi: of both its delays and a full five years 1-::arantced. The startinnn date is not t'::t_ ^c`:cctiv= date of an ICC order; wh~n the Agree-cat was entered into in 19?6 t'ic ICC did not have its pros-eat functio:·'s as to r:cr~cr.,--1·cc:c~ it- actions c,1n r.irdly ~e taken to govern a contrccc ter" predating tl·,:'c .`unction; by -.arc tknn -cur ,.,cars.

fellcwcd by provisious containing the form.. filing r2qvirem^nt. e!creover, an e:-.ployce would have no occasion to ma'.:e a claim unless his cernpensacion were lower. After -If, he is seeking additional cor,ipensntion.

 For this reason, the Carrier's failure p·omptly to provide ,.sat period ^arnings as requcstcd in the November 12, 1962 latter, o:hich also supplied the d.aca o= claimed adverse effcct, excused the Claim_ant ft:;m filing a claim on the require form for the period for which a prompt reply would have enabled him to file. H2nce,
 tN -r 29. tic la ha c e a. Ind
 he NOVCmbcr 12 request, if answered any time up to Nove~br L1 V n ~) -
 him to file a valid claim for the monchs of Occobir and Septem'er 1962 (it t:ould
 have come within 60 days of the last day of the mcnch for which claim was made;. In
 no event could a timcly claim. have b=en mad:. for August 196 1 -and failur.= to fil, a
 timely claim for that month is not excused by any Carrier action or inaction.

 Thee-essential purpose of the claim form 'and the 50 day requirement is to put the Carrier on notics of irs liability and to enable it to ascertain or. a fairly current basis what it is with same dc:init-ess---once the forms are processed. .Thc November 12, 1961 letter advised the Carrier of the names of those believing tncmselves_to be adversely affect=d ;including the Ciaimant) and t~-te months which their claims coy=red. Tae letter lacked some of the data required to compute benefits, if any were in fact due. The Carrier could simply have sent copies of the forms to have them completed. For some reason. or ocher it did not ascertain the test period averages for some of those named in the letter, (including the Claimant) until March or April, and supplied the information in a letter dated April ,'s, 1963. Under the circumstances it is hard to see how the failure to file fuller information chan that contained in the November letter prejudiced the Carrier. If claimant had a valid alai,-: it should not be blocked by minor n^n-confcrmance unless the Carrier sla,o> some real damage, which it could have readily averted by supplying forms once is was en notice of the claim, .

 DECISION :

 Mr. H. L. Hunt's claim for benefits is barred for Aug_st 1962 because it ::as untimely filed. The claims for September 1962 and the months following were timely because the November 1962 letter gave actual notice cf the claim, the Carrier has shown no damage due to the omissions of soce in formation, and it failed to request more adequate information. Further, the Carrier
 ' failure to provide test period earnings disable`c~ the Claimant from making a timely claim for the months beginning with September 1962 because test period earnings are an essential element in establishing eligibility for a displacement allowance under Section 6 of the Washington Agreement.

 - 2 i6
                DOC!a,T,.:.O. 1?;' .__ Decision __,b,="ef_r--. e=..,-t, in


      Brotherhood of Railway -and Steamship Clarks, )

      Freight Handlers, Express and Station Employees ;


                ' ) Parties to the Dispute and )


    St. Louis Southwestern Railway Company )


    QUESTIONS


    "(1) Was Sidney Green affected by the January 1, 1962, St. Louis SouchwesternSouthern Pacific Company (Texas and Louisiana Lines;, Dallas, Texas, coordination?


    "(2) If the answer to Iiem (1) is affirmative, ;hall the Carrier new be required to afford Claimant Green the protective b?nefics of the Washington Agreement and the July 31, 1951, Implementing Agreement covering the Dallas coordination."


    FINDINGS


        The Carrier ;the "Cotton Belt") and the Soutosrn Pacific Company (Texas and

    .T Pacific Lines) effectuated a coordination pursuanc to an Implementing Agreement with the Clerks effective January 1, 1962. the Claimant was a furloughed employee both before and after the coordination. Carrier's detailed and earn·_st argument that a furloughed employee is ineligible for Section 6 benefits was fully considered; the reasons for its rejectic-t are stated in the opinion in Docket No. 108.


    As a furloughed employee the Claimant wcrl:ed extra repeatedly during the year preceding the coordination (1961); he earned just cve: Y4,OQ with the Carrier. The Carrier stated without contradiction that a regila=ly assigned employee in his cat=egory working fill time in 1961 earned $4,1-60; here then is another instance of the substantial job relationship enjoyed by many who work in a furloughed or extra capacity. And as t;.e opinion in Docket No. 127 shows, this Carrier, despite its contrary

    contentio^, did have a f~z. t," The fact of coordination,, the

    furlough and extra 'lis drop in Claimant'; seniority rank, and his lessened earnings make a prima facie case that the Claimel~t was affected by the cocrdinatien and entitled to the protection of Section 6.


    In argument the Carrier warned that although Mr. Green was furloughed and earned somewhat more than $7-,000 in 1961, other "standby" claimants worked less or not at all in 1961 and some never held regu_ar positions but only worked as extras at all periods of thcir cmploy-.ant. Althcugt, so^=_ informe_tion was presented about these individuals, t`;, L:dividual claims were r.oc contested before me and I cannot pass upon

    .. them. Their disposition will be governed by the principles of this decision and any others which are relevant (=.g., Doclct :;o. 103 l?art III of "F'-ndings";) dealing with the eligi'=ility o= emplc,eas furloughed substantial. periods before ctordination


    The Car-i_r also ar,ues that the decisions of tT-e Acme Freight For:arding CC7-_)a and the ~o::t':-.c_-_rn Tran>;ccrtaticn cj.-psny and So:thcrn Pacific Transport Company t0 C.=ScU?'.ti n~,cl'~.':inj, t'"^_ rott.J-'1 ~.clt perform tncir ~i=renoase war" caused the reduction 0: car:'..7..,.; clal-ca 1iy those i1 Ctaimant'3 sit'-i: cion; Lt cites this ai non-c0^-' nation cause .,_ -j3t earnin_5.


                              - 217 - -

However, these discontinuance- took place in 1963. If their occurrence coincided-with tha first post-coordination reduction of inco~re experienced by claimants then eligibility for Section 6 benefits mign· not be established. See Docket No. 109. If Claimants had reduced earnings prior to that tun= then their Section 6 eligibility remained unimpaired. Doc:cets Fu-tered 67 and 129. Hence the Carrier's explanation does not negate coordination - caused impairment of earnings and consequent eligibility for Section 6 benefits. DECISION':
Claimant Green, a furloughed employee both before and after the coordination to which the Carrier was a party, was eligible for the benefits of Section. 6 of the Washington Agreement.
                    --------------------------


            DOCKET N0. 140 - - Decision by Referee °ernscein


Brotherhood of Railway and Steamship Clerks, )
 Freight Handlers, Express and Station Employees )'

            and ) Parties to the Dispute

Southern Railway Company )
 Central of Georgia Railway Company )
 Illinois Central Railroad Company )
 QUESTION' AT ISSUE:

    "Claim of the system Committee of the Brotharhocd that:


of (a) The transfer of Central of Georgia Railway Company clerical work from the Illinois Central Railroad Company FreiGl-,t Agency, Mechanical and Store Department facilities, Birmingham, Alabama, to Southern Railway System facilities are subject to the terms and conditions of the :7ashingcon Agreement of :fey 1936, Washington, D. C.__

 of (b) The Carriers violated the terms and conditions of the Washington Agreement when they failed to furnish a Secticn 4 notice of intended coordination and failed anal refused tb apply the ten^.s and conditions of the Agreement for the protection of the employees affected by the coordination.

 "(c) The Carriers violated the ten^.; and conditions of the Washington Agreement when they coordinated Central of G^eor=is wcricwith Southern work without an agreement for the selection of forces from the Carriers involved as required by Section 5.

 "(d) The Carriers shall no-.7 be required to restore tl-.a stacus quo and arply all the terms and condition= of the :,:~rc~..ent to the coordination involve .

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FINDI\~S :

 The-dispute in this case arises out of the several transactions described and discussed in Docket 1o. 141; Southern and Central of G_crgia mace t%:e same contention that the Section. 13 Com-nitt=_e is wicho--ut jurisdiction. The description and discussion in the opinion in Docket Nc. i4l of :h= . background and co,^.tentions on this aspect of the case apply equally h=re. Hence I conclude that the consideration of the merits is in order. =spice the non-participation of Southern and Central on the rerits, the Organizaticr, must make affirmative s:-:owing the violations alleged did occur and that Claimants are entitled to the relief sought.

 The violations alleged here concern work perfer:red by the Illinois Central for Central of Georgia u'nich was transferred to Scut'.^.e:n as a resulr_ of Southern ; acquisition of control of Central of Gcorgia in 1963, lied the work been perform=d
                                              "coordinations" by Central of Georgia employees the transfers cuculd constitute and

would require Section 4 notices and Section 5 agreements to be consummated; and
 the benefit provisions of the Agreement would apply. The issue is whether the ad
 versely affected employees of Illinois Central ;who performed the work for Central
 of Ge6rgia) can clan.;. these protections, 711inoi.s Central asserts that it is not
 a carrier party to the acts of unificati,n; con=oxidation, etc. and so it does net
 come within the definition of "coordination" in Section 2(a); and its employees are
 not those of a "carrier involved" within the meaning of Section 6(a) or a "carrier
 participating in a . . . coordination" within the meaning of Section 7(a).

 That position is sustained by the results and opinicns in Dockets Numbered 51 and 47 i« which claims of employee; o` carriers performing the work withdra~Yn and transferred to another carrier were denied,

 In Docket No. 59 I reluctantly followed those rulings as precedents noting, however, that I thought the arguments in favor of the claims were more meritorious.

 The Organizations contend that s=bseq..ent court and IGC rulings on similar provisions of Section 5(2) (f) of the Interstate Com-.erce Act -- including one concerning the very same transaction involved in Docket Num'oer 51 -- further vitiate, indeed destroy, the precedent value of tire rulings in Dockets Numbered 51 and In Rail;.ay Labor Executives Assn. v. United State: (D.C.E.D.Vz. 1963) 216 F. Supp. 101 (52 L.'?.1i 2890) the court overturned an ICC determination chat Section 5(2) (f) did not apply to C & 0 employee: who performed work for the Seaboard which t;.e Seaboard withdrew and had perferened elsew;ere. The court's second ground for rejecting the !CC ruling was that the Seaboard's acquisition of alternative facilities was a "transaction involving' the C & 0 altho,;bh chat carrier was clot a direct party to the transfer of work. The ICC reached a result inconsistent with Docket \o. 51 in 295 ICC 457 (1957) and 312 ICC 676 (1961); a three judge court rejected a.^. attack on the Cor-aits_en order granting protection to employees of the carrier perfcr-ing the services altheu.-h it was not a direct party to the consolidation. Louisville and .Nashville R.R. Co. v. United States (D .C.~: lay. 1965: 244 F. Supp. 337, affir.2a U. S. , USLW 3234 (February 21, 1966).

 In m-,; jud:;-ent tliete cases, involvir.1 t';.: jud-5r2nt of two courts and th.e Cc-missio^, doe ~in~ with similar laani;aage of Section 5 (2) (f., warrant overrui_n; Dockets i~u.-o-red 51 and 47. As I st~itcd in Doc'~ct No. 53:

                          - 219 -

    the questi^_n is oheth-r the trar,;fer tf LL.e work and sarviees formerly pecfer-^=d throe=h one f~cility _ a EI Eu_-e_ui cc ancth=r facility (the C & WI Bureau) and co7:.bined -ith the work and service; of the latter is a "coordination." A ^= or factcr is that t^e e--plcyees ea=a lest the work are emplcyces of the C &JE1 and not e-pl--ees :f the Erie,and the Wabash whose operations and services :_rs combined %:itn these of the C o.INI.


    As an original proposition I::culd :-a:e no hesita^cy .in deciding that this was a coordination and that t'-:c emplev_es war-o due. the b3nefits of the Agreement. Operations and sart,ic~.s fcrm_rl-y pprformad thrc·_;gh one facility were combi·n-:d. %ith op=ration= and ;=_:ric-e; of anc_h=r carrier. As a result employees lost 'obi, The fact c=1;1T -:'.e Erie and the Wabash obtained the . performance of th~se -_p=raticns anal :e=-iic°> `htougr the .-mplOYees of ,o=her Carriers und_r contract arran.-emcntslsho.:ld not be con-rolling. It makes good law and go=d sense that what ca·.nct be done directly cannot be done indirectly.


    Had Erie and Wabash employee-3 been p°.rfc_r,inz the work w;lich was combined with that of the C & W1 there und.;niably i,·:·il-i have been a coordination and these ecployces adversely offectad z_cald ha-.!s bean eligible for the benefits of the Washin.-ton Job ?rotectica Aarcement. This s??.ms to be the general kind of situation in which the Agree-..ant was me_nc to ocerate. Here Carriers combine their operations and services with those of another Carrier in tl-a interests of economy and efficiency, It is ths: purp:se of 6e Agreement to facilitate such coordination and, also; tc cushion its impact ucon employees.


    The dacisions of two prior cases lead to a contrary conclusion.. In the Atlanta Joint Terminals Case (Dc c:<et No, 51, award No. 5 - - Referee Gilden) and the CN.r case (,Docket No. 47, A·card No o - - Referee Gil.den) it was held that ernplcyees of carriers which were nor i!rm=2diate parties =o the coordination were outside the protections of the Agreement and that as to the carriers who lost the contracted work t:nero teas no coordination-, Such interpretations seem to be core formalistic than realistic.


To continue to accord Dockets Numbarcd 51 and 0 precedent value would be to distort the Agree-enc and.rna'ke it inharmcnicus with parallel previsions of the Act. Employee=_ of carriers p<yjorming car-ices under contract wo.ild be denied benefits accorded those doing the same thing directly for a carrier party to a coordination, The unfairness of such results is manifest, the potentiality for abuse is clear.

 As indicated !but not bald) b.y Ju3Ze Bryan. in the C o. 0 ieabeard case, the carrier for whom. the work is perfcrr=d and ~:ac`: transfers the ,.;crk is the appropriate employer tc bear the financial. b,~rden cf the prct_ctiva conditions. In this case, Sout'-_n ;:7'-ich would be in that position;: might have argued chat the interpretatioz O= ...= :Iashin=t0--? Agreement _Jv^rnig this kind ef situation should not be chani'°-d' witnou_ notice and that it vas 2·ititled t0 rel.y upon the interpretation of the a~r·=?i._·7; in DCckets 51, C^7 and 09; and 1 woLl3 !-ave a.,reef. However, it did not rely on these interpretations for it 'Jai?d its actions on the premise that the ·~=shi-.-rc ; :\=: c_.-ant , ss not ::?plicable to this ccer:iz,.ation and that only the ICC .Moo:=c'-c:^.Jit:,=~.s ;_c =rn-~.. U'nd_r the circu-~st3nees it ~·as not 1^_d to tie aeticns it co):, by virtu·- ef earlier intrirprctaci^ns .f the elhc=a~rent. llelce it is

 , app ~ , 7 rae on
 rcpri,,.t-2 tD arc!!-.r it to cbs-~-rc tl,~ Ag L as inrerpretcd hcra in
 relation LO .._ a:~·ers-ly affec.^d ~-·~lo;te. of the Illinois C^ntral.

                            - 220 - -

DEC ISICV:

 (1) The trtnsfcr of the work performed by Illinois Central for Central of Georgia to Soutncrn eras a "coordination;"

 (2) Central of Georgia and Sout?:crn violated the Washington Agreement by failing to give Section 4 notices to Illinois Central and other affected employees and to neootia-^r_ an implementi-,g agree-ant before putting t-a coo rdinatien into effect;

 (3) Southern is directed to pay full back pay (i,e. based upon the average of compensaticn earned in the 12 months preceeding the dates of the chanycs and including all frinf.e benefits and improvements in pay _.nd fringes since that time), less actual wages and/or benefits received to all employees effected by those unauthorized cha:zze_s until Section 4 notices are served and a Section 5 irplementing agreement is achieved. The protective conditions under the Washington Agreement shall be in force through September 16, 1968.

 The Carriers are further directed to serve the required notice; and negotiate the required a_rcenent.

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