At the October 22, 1985 meeting, it was agreed to also submit these disputes to you for resolution.
Following receipt of the above letter it was mutually agreed that the Arbitration Board would meet with the parties on January 10, 1986 to consider each of the matters in dispute.
The Grand Trunk Western Railroad Company (GTW) meantime addressed the following letter to the chairman and neutral member of the board, with copy to the partisan members and the General Chairman of the UTU:
Award in the initial dispute would be handled as separate cases through presentation of ex parts submissions.
As concerns the three separate issues or questions presented for interpretation, each of the parties presented extensive argument in support of their position and thereafter forwarded to the board additional comments relative to past awards on the subjects in dispute.
Since the rights of the Claimants were jeopardized or frustrated by GTw's inaction in not having negotiated an implementing agreement, the board has no alternative but to make a decision on each issue in dispute by means of what is perceived to be literal and strict application to the Oregon Short Line Conditions. We do not believe, as the GTW would suggest, that the questions in dispute may be evaluated on the presumption of what the situation might have been had an implementing agreement been in place prior to the adverse affect experienced by the Claimants.
As concerns the first question, i.e., whether Claimant Schneider is entitled to a dismissal allowance for the time he was in furlough status, the Oregon Short Line Conditions stipulate that a monthly dismissal allowance shall be paid from the date the adversly affected employee is deprived of employment because of the abolition of his position or the loss thereof as a result of the exercise of seniority rights by an employee whose position is abolished as a result of a transaction. Further, that payment of such dismissal allowance shall cease while the employee is returned to service or reemployed, at which time the employee shall be entitled to protection under those provisions of the Oregon Short Line Conditions which concern payment of a monthly displacement allowance.
In this latter regard, the Oregon Short Line Conditions provide that if a displaced employee fails to exercise seniority rights to secure another position available which does not require a change in the employee's place of residence, that the employee shall thereafter be treated for the purposes of entitlement to a
displacement allowance as occupying the position which that employee elects to decline.
Accordingly, to the extent Claimant Schneider was involuntarily cut-off or furloughed, he shall be entitled to a monthly dismissal allowance. However, Claimant Schneider shall not be entitled to such dismissal allowance for any period of time that he had elected to take a voluntary cut-off or furlough. In this latter regard, Claimant Schneider would be subject to guidelines related to payment of a displacement allowance, or that protective allowance which may be properly reduced on account of voluntary absences for service and failure to exercise seniority to an available position which does not require a change in the employee's place of residence.
For purposes of this interpretation only, and not to be considered in any manner as a precedent, since the Oregon Short Line Conditions do not establish specific parameters as to what highway distance or other factors shall be recognized as constituting the need for a change in an employee's residence, the board would think it appropriate to here hold such matter be resolved through joint check of records to determine the distance Claimant had in fact traveled from his place of residence to cover assignments in the normal exercise of seniority during the 12 months prior to the transaction, and that such distance as traveled, except in an isolated situation, be used to determine what an appropriate distance would here represent for Claimant to cover available assignments without need for a change in his place of residence.
Turning to the second question at issue, namely, whether Claimant Schneider is entitled to a moving allowance for going to Flint, Michigan.
Section 9 of the Oregon Short Line Conditions provides for payment of moving expenses to employees who are "required" to move their place of residence, with "the exact extent of the responsibility of the railroad... for such transfer ...and the ways and means of transportation to be agreed upon in advance by the railroad and the affected employee or his representative."
In the absence of probative evidence showing Claimant had been required by the GTW to exercise seniority to Flint so as to be entitled to benefit of a. displacement allowance, and absent advance agreement upon the exact extent of responsibility for moving expenses, it must be held that Claimant Schneider is not entitled to reimbursement of moving expenses associated with an apparently unilateral decision to temporarily relocate his place of residence to Flint, Michigan.
Lastly, as concerns the third question at issue and whether the Claimants are entitled to payment at the hourly rate of their guarantee for time worked in excess of their average monthly time paid for during the test period.
The "average monthly time paid for" factor as contained in the Oregon Short Line Conditions is, in the board's opinion, designed to protect a displaced employee in circumstances related the following types of situations: (1) Adjustments to average test period compensation necessary to reflect subsequent general wage increases; (2) Development of appropriate comparisons between average rates of pay for various classes of service; (3) Prorating offsets for time lost in a retained or current position account absences from service; and, (4) Determination of the time at which an employee may be voluntarily absent during a month without deduction being made from the employee's monthly displacement allowance.
The board does not believe the reference to such time factor was for the purpose of providing a protected employee benefit of payment of hours worked in excess of test period time on a basis that would grant reimbursement for time worked in a retained or current position at the rate of that position and, in addition, payment for that same or like period of time at the hourly rate of pay of the employee's test period average compensation.
Actually, even insofar as the Oregon Short Line Conditions make reference to work in excess of average monthly time paid for during the test period, it !'a merely states that the protected employee shall be additionally compensated for such excess time at the rate of pay of the "retained" position. The Conditions make no reference whatsoever to the employee being compensated at the average rate of pay derived from average earnings during the test period.
We think the intent of the authors of the Oregon Short Line Conditions in providing that a protected employee be additionally compensated for excess hours was to protect the employee's right to the total earnings of an assignment attained through the normal exercise of seniority, as opposed to being cutoff after attaining compensation necessary to satisfy a_monthly displacement allowance so as to have the excess earnings be utilized to cover displacement allowances due other protected employees.
As concerns additional questions which came to light during board hearings, the board would hold that the following criteria be used to resolve those questions at issue: (1) If the protected
employee works the equivalent number of test period average hours, but fails to earn compensation equal to or greater than test period earnings, the employee is entitled to full benefit of the monthly displacement allowance. (2) If the protected employee works all available hours, but the total number of hours falls below test period time, the employee is entitled to full benefit of the monthly displacement allowance. (3) If the protected employee works more than the total number of test period hours, the employee is entitled to full benefit of the monthly displacement allowance, but not to additional compensation for the excess hours worked at the rate of the test period average hourly earnings.