SPECIAL BOARD 07 ADJUSMNT ETO. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Express Station Employes
DISPUTE ) and
Erie Lackawanna Railroad Company
QUESTIONS
AT ISSUE: (1) Mr. W. F. Heaney, an employe of the Erie Railroad,
was involved in the coordination of the Passenger
. Stations of the former Erie Railroad and the Delaware,
Lackawanna and Western Railroad at Jersey City and
Hoboken, New Jersey, which occurred on or about
' October 13, 1956, including the ferry abandonment on
. . February 19, 1958, as a part of such coordination;
and as an employe "continued in service" is, there-
', fore, entitled to be paid a displacement allowance
- : under Section 6 of the "Agreement of May, 1936,
Washington, D. C. "
(2) As an employs involved in the consolidation and-"con- .
tinued in service" Mr. W. F. Heaney is entitled to be
paid a displacement allowance equal to the difference
between his monthly earnings on any position he has
' held during the protective period as provide=d for in
-Section 6 and his average monthly earnings during the
"test
period" as defined in Section 6 (c).
'OPINION '
OF BOARD: On October 13, 1956, facilities of the Erie Railroad and
' Delaware, Lackawanna and Western Railroad Company were
.coordinated. Between August 27, 1956, when the Interstate
Commerce Commission approved the coordination and the
effective date of such on October 13, 1956, Implementing Agreements were
negotiated with the various Organizations involved therein. As Carrier was
preparing Wabandon the ferry service operated by Erie, it was compelled to
desist due to litigation initiated by Northern Valley Commuters Association,
. -which lasted until February, 1958. During the period of such litigation, Carrier
` was required to retain Claimant's position of Ferrymaster. However,
on January
18, 1958, Claimant's position
was finally abolished and he, thereafter, dis
pTed
on
g'Bumber
of
p- one~XILtwug a posit oa of Supervisory Clerk was
bulletined on March 30, 1959, paving-a higher rate of compensation, Claimant
j (failed to bid for such and it was~awarded to
a
junior employee, P.
J.-Rd'ZcT.
Award No. _187
Case
No. CL-34-E
Thus, two issues are presented for our consideration,
namely, from what period of time does Claimant's five-year protective
period start to run and the amount of compensation to be applied against
Claimant which was earned by the junior employee, P. J. Roach, who bid
into the supervisory position on March 30, 1959.
Both protagonists, in then efforts to pursuade us as
to the validity of their positions, rely on Referee Bernstein's Decision
rendered by the Section 13 Committee in Docket No. 67, involving the same
parties. We should note, however, that while the Carrier adopts the substantive portion of the analysis contained in Docket No. 67, it disagrees
with the final conclusion as stated in that Award. It is, therefore,
incumbent upon us to attempt to reconstruct the basis for. the deductions
contained in that Docket, in order to determine the significance of the
language espoused in the Decision.
' Prior to our analysis of Docket No. 67, we would first
quote for ready reference the applicable provisions of the Agreement of
Nay 21, 1936, the Washington Job Protection Agreement.
'"Section 2(c). The term 'time of coordination' as used
' herein includes the period following the affective date
of a coordination during which changes consequent upon
coordination are being made effective; a to a
particular employee it means the date in said period
III,
IF,
when
that employee s ri s _ a a
su t of said coordinat oa._
faction 6(a). No employee of say of the carriers involved in a particular coordination who is continued
is 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 with respect to compensation and rules govern-
__~ing working conditions than he occupied at the time of
such coordination so long as he is unable in the normal
-exercise of his seniority rights under existing agreements, rules and practices to obtain a position producing
compensation equal to or exceeding the compensation of
___thk position held by him at the time of the particular
coordination, except however, that if he fails to
exercise his seniority rights to secure another available
position, which does not require a change is residence, to
Award No. _187
Case No. CL-34-E
which he is entitled under the working agreement and
which carries a rate of pay and compensation exceeding those of the position which he elects to retain,
he shall thereafter be treated for the purposes of
' this section as occupying the position which he elects
to decline."
In Docket No. 67, the coordination became effective on
October 13, 1956--of course, the similarity is apparent inasmuch as the same
facilities were involved as those in the instant dispute. Voss, the Claim~ant, was continued in service until March, 1958, in the position he held at
'the time of coordination at the Erie's Jersey City passenger station. In
March, 1958, he was appointed Ticket Agent at Paterson.
Based upon these facts, Referee Bernstein stated as
follows:
"The employee was one 'continued in service' who lost his
position ' as a result of such (a) coordination. Section
6(a) makes it clear that' for a period (of) five years
following the effective date of such coordination ' he
shall not be' in a worse position with respect to compensation ' so long
as
he is unable by the exercise of
seniority to obtain a position which produces as much
or more compensation' ".
"It is the first adverse effect of a coordination which
makes the employee eligible for the benefits of Section
6 (See Section 2(c) ). Thereafter the protection of
the agreement is his for the specified five years in the
ordinary case."
"Decision
: A. W. Voss is entitled to a displacement
allowance for each month of
a
period of five years after
x_1958
, in which his compensat on umber of
hours equal to the average monthly time paid for during
his test period (3/57 - 2/58) was below the average
monthly compensation of the test period."
How do the facts in the instant dispute jibe with those in
Docket No. 67.
1.October 13, 1956, a coordination became effective.
Award No. _187
' Case No. CL-3L-E
4 :J
2. Claimant Heaney was continued in service due to
litigation instituted by Northern Valley Commuters
Association.
3. Claimant's job as Ferrymaster was abolished on
January 18, 1958..
4. January 18, 1958, was the date of the first advers
effect of the coordination which made the employee
. (eligible for the benefits of Section 6.
5. Thereafter, the protection of the Agreement is his
.for the specified five years in the ordinary case.
6. However, the facts in the instant dispute indicate
' that this is not the ordinary case. Therefore, we
turn our attention to the Carrier's arguments con- .
cerning the litigation, as well as Claimant's
failure to bid on the Supervisory Clerk position in
tech, 1959.
Previously, we mentioned that litigation was instituted by the
Northern Valley Commuters in October; 1956, which was not terminated until
February, 1958. The Carrier argues, therefore, that the employees should
not benefit from such litigation, inasmuch as the Carrier was prevented from
abolishing Claimant's position during this period. In support of this contention it cites Docket Nos. 2 and 13 of Arbitration Board No. 289.
We would be prepared to accede to the Carrier's thrust in this
regard, if sufficient proof were included thereof. The record indicates
that between August 27 and October 13, 1956, the Organization negotiated
an Implementing Agreement with respect to the said coordination. Insofar
as the 1956 coordination was concerned, only the Commuters Association was
a litigant_ not the Organization. True, the Carrier alludes to the fact
that "---this coordination was also involved in a litigation, created by
the employes, which prevented Carrier from implementing its coordination
plans for over 16 months." Thus, the impression is left that the organization
was a party to such litigation. However, we may not indulge in conjectures.
We are aware that the organization was a party litigant in the 1960 coordination
---but not to the 1956 coordination. We do not believe that the employees shoul
be penalized for an act over which they had no control. Therefore, in our view,
the delay caused by the litigation was not attributable to the Organization.
Hence, it may not now be used to penalize Claimant.
w
Award No. _187
Case No. CL-34-E
What of the failure of Claimant to bid in to the higher rated
position of Supervisory Clerk on March 30, 19597 Section 6 (a) requires
that "he shall thxreafter be treated for the purposes of this section as
occupying the position which he elects to decline." Here, too, we find
the parties in disagreement. The Carrier argues that all earnings of the
junior employee should be held against Claimant, whereas the Organization
contends that only the earnings of the junior which he received in the
position of Supervisory Clerk should be applied against Claimant. Hence,
any earnings received as Box Car Checker, Chief Clerk or Assistant Chief
Clerk, may not be used for this purpose. In our view, the junior employee's
earnings on those dates when he filled the position of Supervisory Clerk,
as well as those dates on which he could have worked the Supervisory Clerk
position, may be applied against Claimant.
We would note one additional remark. Numerous precedents were
cited by the parties to substantiate their arguments. While we are prone,
at times, to disregard precedent, we believe that in the instant dispute we
are obligated to follow the precedent established in Docket No. 67. In this
vein, it is our firm opinion that the conclusions reached herein are entirely -
consistent with the decision reached previouslx,involving the sane parties,
as well as the same coordination.
AWARD:
1. Claimant, W. F. Heaney, is entitled to be paid a displacement allowance under Section 6 of the Washington
Job Protection Agreement.
2. In determining the displacement allowance to which
W. F. Heaney is entitled to for each month of a period
of five nears commencing from Januarv_18 1958, the
data of the first effect of the coordination, the
earnings of the junior employee, P. J. Roach, on those
- dates when he filled the position of Supervisory Clerk,
as well as those dates on which he could have worked the
Supervisory Clerk position, may be applied against
Claimant Heaney.
.
~,~ltf.Qa_
h
_/Ci
rray H. hman
Neutral Member
Dated: Washington, D. C..
January 19, 1970
M -.47
is
SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Express 6 Station Employes
DISPUTE ) and
Erie Lackawanna Railroad Company
QUESTIONS
AT ISSUE: (1) Mr. E. Bouaski, an employe of the Erie Lackawanna
. Railroad Company, was involved 'in the coordination
of the passenger stations of the former Erie Rail
road and former Delaware, Lackawanna and Western
Railroad at Jersey City and Hoboken, N. J., which
occurred on or about October 13, 1956, including
the ferry abandonment on January 18, 1958, as a
part of such coordination; and as an employe _
"continued in service" in, therefore, entitled to
be paid a displAcement allowance under Section 6
of the "Agreement of May, 1936, Washington,
(2) As an employe involved in the consolidation and
"continued in service", M:. E. Bonaski is entitled
_ to be paid a displacement allowance equal to the
_ difference between his monthly earnings on any
position be has held during the protective period
provided for in Section 6 and his average monthly
earnings during the "test period" as defined in .
_ 'Section 6 (c).
OPINION -
OF BOARD:_.a The instant dispute parallels the one submitted in Case No.
CL-34-E and arose out of the coordination of facilities betwei
Erie Railroad and Delaware, Lackawanna and Western Railroad
Company. Inasmuch as we carefully analyzed the arguments of
the parties in CT.-34-E, we are adhering to our conclusions reached in Award No.
187, decided on January 19, 1970.,
We would further note that despite the organization's contention that Cisimant, E. Bonaski, was first affected on December 14, 1958, the
date his position of Ferrymaster was abolished, we find this statement to be
inaccurate. In Organization's Exhibit "A", a letter dated January 14, 1961,
signed by the General Chairman and addressed to the Carrier, the following
statement is contained:
O__
Avara No.
_:~d
Case
No. CL-35-E
. Z
"Mr. Bonaski was adversely affected on January 18,
1958 or thereabouts as a result of the abandonment
of the Erie ferry service."
It is, therefore, our considered opinion that laimant is
entitled to be paid a displacement allowance under Section 6 of the Was ington
Job Pro a on greecen . uc a owance s commence on January ,
the date of the first adverse effect of the coordination on the employee, and
shall continue for a period of five years therefrom.
.
ARM
Claimant, E. Bonaski, is entitled to a displacement
, allowance commencing on January 18, 1958, the date of the first adverse
l effect-on the employee, and shall continue for a period of five years therefrom
_ ~_- _CGLQQ .' atR C-~.~ .
. . :. . . . Tray . - ohman
Neutral Member
Dated: Washington, D. C.
January 19, 1970 .
Award ,;o. 217
Case No. CL-66-W
~J 1/~ Z ~t~
~.~
SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
T6 ) Freight Handlers, Express and Station Employees
DISPUTE ) and
St. Louis Southwestern Railway Company
QUESTIONS '
AT ISSUE: (1) Does Section 8 of the Agreement of May 1936
Washington, D. C., r ire the Carrier to provide
. heal and welfare benefits to Messrs. Carson Be 1,
. F. Burford, John Luke, Sam Miles and 0. J. Peppers,
employees affected in the October 1, 1961 St. Louis
Southwestern Railway Company - Southern Pacific
(Texas & Louisiana Lines), Dallas, Texas, Station and
Yard Facilities Coordination?
` (2) If the answer to Question 1 is affirmative, shall the
carrier now be required to afford Claimants Carson Bell,
Z. F. Burford, John Luke, Sam Miles and 0. J. Peppers
the health and welfare benefits that they were
arbitrarily deprived of? -
OPINION
OF BOARD: Effective January 1, 1962, facilities of the St. Louis
Southwestern Railway Company and the Southern Pacific
Company (T 6 L Lines) were coordinated, pursuant to the
protective provisions of the 1936 Washington Job Protection
Agreement. In substance, the Organization contends that,
Claimants Bell, Burford, Luke, Miles, and Peppers
were affected by the coordination and subsequent to being
affected have been paid displacement allowances and/or -
coordination allowances by the St. Louis Southwestern.
In months that the Claimants performed work they re-
. ceived coordination allowances, as required by Section 7
of the Washington Agreement. The Carrier, however, did
. not continue their protection with respect to health
and welfare benefits in such months.
' 'Two additional statements contained in the Organization's
submission are pertinent herein. It further alleges that, "(S)uch health and
welfare benefits are accorded to other employees on Claimants' home road in
active service." Also that, "(T)he Carrier's arbitrary elimination of such
benefits during months that the Claimants drew coordination allowances is
improper and not in keeping with.the literal specific language of both
Agreements." .
The Carrier, in turn, concedes that the Claimants herein
continued in service and performed extra work.
During months they performed compensated service.
for the Carrier under this rule the Carrier has made
payments for health and welfare benefits, but during
periods when work under this rule has not been available to them and they have performed no service no
-- such payments have been made, as no payment for health
' and welfare benefits is made to cover other employes
- who are furloughed and who perform no compensated
service for the Carrier.
Illustrative of the instant dispute, the Carrier indicated
that Bell performed some work in each month through December, 1963. There
after, he has not performed any work but received a'Section 7 coordination
allowance--and no payments were made for health and welfare benefits.
At this juncture, we would indicate two statements contained
in the submission of the parties which are inapposite. Namely, whether the
Carrier continued their health and welfare benefits in those months the
Claimants performed compensated service, as well as whether such benefits
continue to be accorded to other employees on his home road, in active service
or on furlough. We have no means of deciding such variance at our level. Both
of these statements can readily be verified on the property. However, assuming
that the Carrier's statement is correct, are the Claimants entitled to receive
health and welfare benefits in those months that they do not perform compen
sated service?
In this regard, the Organization cites two decisions by the
Section 13 Disputes Committee, which it contends is dispositive of the issue
,, herein. Docket No. 9, without a Referee, in response to the Questions posed,
· QUESTION (1) Is the "average monthly compensation"
determined in accordance with the formulae
prescribed in Section 6-(c) and 7-(a) of the
Agreement, subject to change to conform to
subsequent increases and/or decreases in
basic hourly rates resulting from general
wage adjustments?
QUESTION (2) Are affected employes who have insufficient
seniority to obtain and retain a regular
assignment, but who revert to and perform
service from the extra list,entitled to com
pensation under Section 6 or Section 7, of the
Agreement, or under a combination of both
Sections?
held that the affected employees who perform services from the extra list are
entitled to compensation under Section 6 of the WJP Agreement. In Docket No. 12
decided by Referee Bernstein on July 22, 1966, involving some of the same
Claimants herein and subsequent to the docketing of the instant dispute with
the Section 13 Committee, but thereafter withdrawn pursuant to the February 7,
1965 National Agreement, is an established precedent which our Board is
required to follow.
We have previously stated that precedents are important,
though not sacrosanct and where they are relevant to a dispute before us, we
shall analyze the precedent Award and when appropriate, we intend to follow
it unless contrary to good conscience.
- 3 -
We have found it necessary to set forth the above statement
in view of the organization's insistance that the "Decision" in Docket 127-and only that portion entitled "Decision"--shall be' our guiding light in
leciding the instant dispute. The fact that the Decision is predicated on
and responsive to the two Questions posed therein, as well as.approximately
four pages of single space "Findings," are irrelevant and no concern of ours.
We should not inquire what was involved therein, but simply accept the bald
statement, viz:
DECISION: The Claimants, regular position holders who
reverted to the Carrier's furlough list by virtue
of the coordination, are eligible for Section 6
benefits and not a combination of Section 6 and
Section 7 benefits as a matter of'interpretation
of Section 6 (a) and (c). If Section 7 (h) were
applicable the result would be the same.
Ergo, Referee Bernstein held that these Claimants were entitled to Section 6 benefits, i.e., they were continued in service. Therefore,
for a period not exceeding five years following the effective date of such
coordination be placed'in a worse position--this, of course, includes health
and welfare benefits.
Prior to analyzing the dispute in Docket 127, we would further
indicate the thrust of the Organization's position herein. Paraphrasing the
Organization, it is to the effect that once an employee becomes entitled to
a Section 6 displacement allowance, i.e., one who is continued in service, he
always remains in that category and that his entitlement becomes fixed at the
:ime of coordination as to whether he is subject to Section 6 or 7. In effect,
if he commences as a Section 7, then he is governed by Section 7 (h) and not
section 6. Why? otherwise, the WJP Agreement would have contained a Section 6 (h).
Although the parties have. failed to cite a specific Award on
this aspect, the Carrier contends that an employee who performs service in a
given month is entitled to a Section 6 displacement allowance and in those
months in which he does not perform compensated service, he is entitled to
a Section 7 coordination allowance. However, such metamorphoses in the
employee's status are controlled by monthly changes and are not to be fragmented by days within a month.
Out-analysis of the instant dispute now leads us back to
Referee Bernstein
s
decision in Docket 127. The issue before him was stated
as follows:
QUESTION:
1. Shall affected employees who have insufficient
seniority to obtain and retain a regular assignment in
the coordinated operation be paid a Section 6 Displacement Allowance in those protective period months
in which they perform service?
2. If the answer to question (1) is in the affirmative, shall the Carrier now be required to pay
. Claimants Carson Bell; --- 2. F. Burford; ---
John Luke; Sam Miles; C. J. Peppers; --- a displacement
allowance for the month of January, 1962, and
,c,
each subsequent month thereafter in which they
perform service in the protective period, rather
'-- than a combination displacement-coordination
allowance which is now being paid.
In the Findings, the following paragraph is crucial herein:
The Organization claims that in any month in which the
furloughed employees performed extra work they were
entitled to Section 6 allowances for the entire
month. However, the Carrier interprets Section 7 (h)
to mean that the Section 6 and Section 7 allowances
are to be prorated and a combination of both paid
depending upon the proportion of the working days
of the month in which the employee was working and not
working. '
Additional comments are included in the Findings, concerning
the application of dayd or months. Finally,
(T)he grossness of these categories argues against
their being subdivided into fractions measured in
days. Given the terminology and the rough justice
the allowances were to perform, it seems quite un-
likely that there was any intention that allowances'
· be made on a daily basis.
It follows, therefore, that Claimants are not eligible for
health and welfare bene s in ose months when t ev i n ce.
Furt ermore; cn~rwo~rsp osed, i.e., whether these
Claimants received health and welfare benefits during the period they performed
compensated service, as well as whether under Section 8, of the WJP Agreement,
' other employees on his home road, in active service or on furlough, are
accorded these benefits, are remanded to the property for disposition consistent with the Opinion.
' AWARD:
' The-answer to Questions l and 2 is in the negative. However,
the two factual islwes are remanded to the property for disposition per Opinion.
e,
urray`M. Rohman
Neutral Member'
Dated: Washington, D.C.
July 24, 1970