' (d) The rates of pay?
 (e) The application of the elections and benefits provided
 in Article V of the February 7, 1965 Agreement to em
 ployees who are required to move their place of residence?
 4. Shall the Carrier now be required to return the Cashier's
 Department work from Cincinnati, Ohio to Bellefontaine, Ohio
 · and retain it there until such time as an appropriate imple
 menting agreement has been reached?
 5. Shall the Carrier be required to compensate each and every
 protected employee involved by the changes instituted at
 Bellefontaine, Ohio, effective February 1, 1966, for any
 wage loss or expenses incurred on and after February 1, 1966
 . Case \o. CL-9-E



        OPINION

        OF BOARD: On May 23, 1962, the parties executed an agreement on the

        property which provided in Section 2 thereof, that an im

        plementing agreement shall be negotiated before transferring

        either work or positions from one seniority district to another.

        Despite said provision, on February 1, 1966, the Carrier instituted a tech

        nological change at Bellefontaine, Ohio, by installing a DICC System. This,

        in effect required the abolishment of the eight clerical positions then in

        existence at that point and, in lieu thereof, the establishment of eight nets

        positions at that point. In addition, six hours of one cashier's work was

        transferred to Cincinnati, Ohio, which could nova be performed in approxi

        mately 40 minutes. Further, the incumbent cashier remained at Bellefontaine

        and obtained a position paying $2.768 per day higher than her former rate.


        Prior to initiating the proposed changes, the Carrier attempted to negotiate an implementing agreement sanctioning these changes. However, the Organization declined to execute such agreement, on the contention that the February 7, 1965 National Agreement provided for an election of options, namely, that the incumbent be permitted the choice whether to transfer with her work to Cincinnati, or resigning and accepting a lump-sum separation allowance. In passing, we would note that in Case No. CL-1-E, Award No. 42, we held that an implementing agreement was not required due to the fact that the agreement on the property merely provided for a meeting of the parties. In the instant dispute, however, the 1962 agreement specifically obligated the parties to execute an implementing agreement.


        In this context, did the February 7, 1965 National Agreement reinforce the obligation of the Carrier to enter into an implementing agreement or supplant it? Again, in issue herein is the compromise Interpretation of November 24, 1965, Section 1 (b), Article III. In analyzing this Interpretation, we find in the statement preceding Section 1, an expression that the parties have agreed on a compromise interpretation. Following said statement is Section 1, which provides for an implementing agreement in the following situations:


                  (a) Whenever the proposed change involves the transfer

                  of employes from one seniority district or roster to

                  another, as such seniority districts or rosters existed

                  on February 7, 1965. -


                  . (b) Whenever the proposed change, under the agreement in effect prior to February 7, 1965, would not have been permissible without conference and agreement with representatives of the Organizations.

Case No. CL-9-E
- 3 -

    Admittedly, under Section 1 (a), an implementing agreement would now be necessary if employees were required to transfer across seniority districts or craft lines. Therefore, the crux of this dispute hinges on the question whether the Carrier could transfer work from one point to another without an implementing agreement, though such was required on the property prior to the National Agreement.


    In our view, Section 1 (a) and (b) of the November 24, 1965 Interpretations, cannot be interpreted as two separate and distinct entities. Rather, they fit together more harmoniously if ere compare (a) and (b) to both halves of a pair of cutting shears. The intent of the parties, as garnered by the language therein, was to provide a guideline for interpreting Section 1 of Article III. In consideratiori'of the protective benefits, Carriers were now granted the right to transfer work and/or employees throughout the system, provided craft lines were not crossed. Why then muddle the issue further by a compromise interpretation?


    Hence, it was the intent of the parties to clarify what may have been ambiguous in said section. Thus, transferring employees across seniority districts would now require an implementing agreement. Why did the parties not see fit to include a requirement for an implementing agreement when only work was tranferred, even though such is included in Article III, Section 1? Again, because of the protective benefits provided the affected employees, as well as permitting those employees to exercise their seniority in conformity with existing seniority rules, as specified in Section 2 of Article III of the November 24, 1965 Interpretations.


    In summary, the following principles vDuld appear to be applicable herein. Where no provision for an implementing agreement was originally required on the property, the Carrier is not obligated to enter into such an implementing agreement for transfer of work. Where prior to February 7, 1965, an agreement on the property provided for the execution of an implementing agreement in the transfer of work, the Carrier will be permitted to carry out such transfer of work, without an implementing agreement. However, it is recognized that employees who are adversely affected as a result-of-such transfer of work would receive the protection they are

-----entitled -to-rnder-the-provisions of--the-February-7j-1965 -Nstional---Agreen-ene.

    --- --It is;-therefore;-wur-considered-opinion-that undar-ta2-circumstances prevalent herein, as well as the previous decisions rendered

--b-y-Spec ia1 .Boaxd-of-lCd jusfirient No -.--605 - iWAtoBrd-i%los :- 3--and- 40;-'the-Carrier
 was not obligated to execute an implementing agreement.
                                        Case No. CL-9-E


                    Award:


Answer to question 1 is in the affirmative and answer to questions 2, 3, 4 and 5 is in the negative.

                              J.

          al ~GGGGae ~o- l~l~t~l~


                Mur ay M. P.ohman'

                Ne)(tral Member


Dated: Washington, D. C.
 April 28, 1969
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                        May 23, (969


Mr. C. L. Dennis /
 Mr. H. C. Crottyv'
 Mr. A. R, Lowry
 Mr. C. J. Chamberlain
 Mr. R. W. Smith

                    SUBJECT: Employees Dissent ro Award 1;:. 43

                    (Case No. CL-9-E

                    Carrier's Dissent to Award No 44

                    (Case No. CL-S-E)

                    Disputes Committee, February 7, f9.,:: Agreement


Dear Sirs and Brothers:

 I am enclosing herewith our Dissent to Award No. 43 (Case No. CL-9-E) of Special Board of Adjustment No, 605 established by the February 7, 9b5 Agreement which was signed by Referee Rohman on April 28, 1969. We believe that this Award is contrary to the Agreement and Interpretations thereuncar end the Dissent is necessary to maintain our position.

 I am also enclosing herewith the Dissent to the Carrier members .n c;,;._ecr~or. with Award No. 44 (Case No. CL-S-E) of this same board which was signed on the same date.
                          Fraternally yours,


                      J & -


                      Five CC~rag- ~~

R ' way Lu&bor Organizations Attachments cc: L. P. $choene
 l

                                  Dissent to Award No. 43 Case No. CL-9-E


                SPECIAL BOARD OF ADJUSTMENT NO. 605


                      Dissent of Labor Members


    This case, like a number of others that have come before the Committee, involves the interpretation and application of Article III, Section I of the February 7, 1955 Agreement. It is futile to try to determine the-intent of the parties from the orgin6l

    text. The unions understood the section to require an implementing agreement in all'

    cases of technological, operational or organizational changes to govern the transfer (if

    any) and use of employees and the allocation or rearrangement of forces made necessary

    by the contemplated change. The carriers, hqwover, insisted that an agreement was

    "necessary" only if employees were to be transferred across seniority district lines.


    Because the divergence of view between the parties as to the intent expressed in the Agreement was so sharp, the parties frankly recognized the irreconcilability of the difference. Accordingly, in the Interpretations of November 24, 1905, they introduced their discussion of this section with the announcement that not being in accord as to the meaning and intent of the original text, they had agreed an a compromise to govern its application; the compromise was patently a substitute.


    In the substitute the carrier's original view predominantly prevailed. Paragraph I(a) expresses the extant of the requirement for implementing agreements as originally urged by the carriers.


    However, paragraph i(b) did express inclusion in the requirement of any other situation in which prior to February 7, 1965_conference and agreement with the organization was necessary. This can hardly be described as a gain for the employees. It only said that they hadn't given up any preexisting right to hove a voice in the disposition of their people through technological, operational and organizational changes.


    Nevertheless, the Referee now says, at least for purposes of this case, that the organization did give up the preexisting right to have an implementing agreement when work is to be transferred from ono seniority district to another. This is a direct contradiction of paragraph I(b) of tine Interpretations.


    We confess that we have difficulty understanding even what the reasoning process is by which this result is achieved. A part of it apparently involves an attempt to interpret the original Article III, Section I without regard to the Interpretations.

                          _2_


If this were permissible, of course, the Referee could simply adapt thv carrier interpretation of the original text. There is some reason to suppose thct is the essence of what he has done, since he asks "Why ton muddle the issue further
 by a compromise interpretation?"

 On the other hand, the Referee does seem to recognize an obligation to take account of the Interpretations. He tells us that Section I (a) and (b) "cannot Linterpreted as two separate and distinct entities." Why not? They certciniy purport to set forth'] two separate and distinct tests for requiring an irnpicmantin;; c~recrr,~nt even though admittedly there would be a considerable overlap. ~ucp:..c~:4y ~aj requires an agreement whenever employees era transferred from one sen:cr..y distr ict or roster to another regardless of what preexisting unilateral authority the carrier may have had to make such transfers in certain situations. Subparagraph (b) says that regardless of whether employees or-work or anything else is transfer. ad and regcrdless of seniority linens, an implementing agreement is required when the proposed change would not have boon permissible prior to February 7, 1965 without conference and agreement with the organization.

 In many situations, each subparagraph would require an agreement even if the other ware not there. But this does not warrant the statement: "Rather, they fit together more harmoniously if we compare (a) and (b) to both halves of a pair of cutting shears." We cannot escape the suspicion that the comparison to cutting shears came to mind because the Referee, perhaps subconsciously, wanted to cut subparagraph (b) out of the Interpretations in order to reach the results he was determined to reach.

                                  - ,.

                                            ~.~./'J

                                    Labor nu;~_ ~::r


                                        .,.

                                            ..h .1' _r,; ,

                                  ~Labor MemT.~e~,