SPEC-r.A1, fOA';l OP h'),;OS'.~.':;.::5' I:u. GC,;
Pe1I2!'J.':S ) I>rothc:rhood of itai.limtd Si~n,~lr;en
TO ) 'Ind
DISPl1Ti; ) Illinois Central Railroad
QUI:STIO\
AT ISSUg: Is It. h. Call: entitled to the rage of tito ;osi.ti.o:, i::: l:-J:'.
on October 1, 1564 (Si-,ae1 'Pestm;t:. - $622.14 -p--r L:ontl:),
plus subsequent _eneral vale increases, .-~c-t be~.n~
dis:ni.ssed and later rc:i.nstat:ce: a.to l:l.;:cee. o:: a s.,,:tal
maintainer position at a lower rate of pay?
OPINION
OF 7>0":;D: The facts are not is dispute. C1 ai: ant: u:;,., ::ot^_cted
ernployc under the to-o:is of t'^.e Lelm:uary 7 _cw..:~.._. its
of October 1, 196.': he hel.ci the r..^ae of Si,_::a7 __ ....::
On April 5, 1965
Claimant
was dis:::iasec: fro:.; service a.. . reec:It o.: r.eg-l'_:_~ence
on his part. t.ppro::imatcly .: month later he was ai.loved to return to work
after he had a<~reed to tha folloc,in3:
"In consideration for being permitted to return to serv_cc
4s
signalman or siC:2a1 maintainer effective tiay 17, 1965, I ay.ee
that I will not bid on any position above that
of-'
the
or signal maintainer's class until I have been asarued a
position in the signalman or signal maintainer class by bulletin."
Claimant also agreed to the
following:
"It is agreed if I am reinstated in the Signal Departm;:nt on
the Kentucky Division, there will be no claim for tinta lost during
my dismissal."
Approximately a year later, and after Clait:ant was
awarded
the position of Signal
Maintainer
by bulletin, a claim was filet: for the
difference between his rate of compensation between a Si-.nel,::ain..-:a.nor and
that to which he received as a Signal Testman (as of October 1, 19u4).
Carrier contends Claimant voluntarily waived any right to
such differential by accepting the conditions of re-employment set forth above.
It is clear that under the terns of the February 7 A;;ree::ent
and the November 25 Interpretations to that Agreement, a protected c-;plcye
who is reinstated after dismissal is restored to protected status after such
reinstatement. He is, of course, not entitled to any compensation duri.nC
his absence.
L`., _'c.
.:p.
J.
:.;:':_ i~f.
~:~.w.~_.
.
The forms and conditions under which Cl.,.i .::L
reinstated have no relevance to his protection un<'_r the .. ,._ ,.
.:ry
Agreement. Claimant's agreement no;: to bid on certain po;,-.'.t::_o:.:: u:-ai.7.
he tans awarded a position by bulletin did not deprive Mm of his smus;
nor did his agreement not to claim compensation for time lost dm_ir:
his dismissal.
As such the question of whether an employo can naive
his rights under the February 7 A;,rec,eut need not be dctcr:aincd.
nl;a..;n
The question presented is answered in the affirwativc.
~;~L
x~
411
A Ni
cholaas H. Zurtas
Neutral i:ember
. .
4
Dated: Washington, D.C.
June 24, 1969
~,
i. m
INTERPRETATION OF AWARD N0. 108 - CASE N0. SG-12-W
SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railroad Signalmen
TO ) and
DISPUTE) Illinois Central Railroad
This matter has been resubmitted to this Board by the Organization
for an interpretation of our Award No. 108 as it applies to the Claimant under
the circumstances.
Initially the question submitted to the Board in Case No. SG-12-W
was:'
"Is H. L. Cash entitled to the rate of the position he held on October 1, 1964 (Signal Testman$622.14 per month), plus subsequent general wage
increases, after being dismissed and later reinstated and placed on a signal maintainer position
at a lower rate of pay?"
Our award, dated June 24, 1969, answered the question in the affirmative.
In applying the ruling of our award, Carrier paid Claimant the difference between his gross earnings on the hourly rated Signal Maintainer's
position, including overtime, against the monthly rated guarantee of a Signal
Testman.
The central question to be determined in this Interpretation is
whether Carrier is entitled to apply overtime pay earned as a Signal Maintainer
to meet the minimum guarantee requirements of a Testroan as was determined under
our Award No. 108.
The Organization takes the position that if and when the Claimant
worked his normal work week (five days per week) throughout the entire month
of the hourly rated position, he should receive earnings equal to the guarantee
provided under the February 7, 1965 Stabilization of Employment Agreement. If
at any time during that work period, overtime work was performed, such overtime
work should be paid over and above the guarantee. Stated another way, the Organization contends that Carrier is obligated to deduct all overtime pay in the
computation of monthly earnings and then pay the difference between the monthly
earnings and the guarantee of a Testman's monthly salary.
To hold otherwise, the Organization asserts, would allow Carrier to
require_an hourly rated protected employe to work overtime in order to make up
the equivalent of what he would be allowed on a monthly rated guaranteed position:
''~ The rationale for the Organization's position is that since the
hourly rated Signal Maintainer works eight hours a day five days per week, the
same as a Testman, he (the Signal Maintainer) should receive the equivalent of
I. . l '
--
the Testman's monthly salary for the claim period, plus all overtime worked on
the hourly rated position during the 'claim period.
Carrier contends that Article IV, Section 1 does not prohibit it from
counting the hours worked in excess of an eight hour day 40 hour week to com-
pute protection pay. Carrier further asserts that since the monthly rate of a _
Testman "comprehends" service up to 211 2/3 hours per month, it is proper to in
clude all hours (including overtime) on Claimant's current hourly rated position
fn the computation of the difference between the actual amount earned and the
"normal rate of compensation" (Article IV, Section 1 of the February 7, 1965
Agreement) of the regularly assigned position which was occupied by Claimant as
of October 1, 1964.
Article IV, Section 1 of the February 7, 1965 Agreement provides:
"Subject to the provisions of Section 3 of this Ar
ticle IV, protected employees entitled to preservation of employment
who
hold regularly assigned
positions on October 1, 1964, shall not be placed
in a worse position with respect to compensation
than the normal rate of compensation for said regularly assigned position of October 1, 1964; provided however, that in addition thereto such compensation shall be adjusted to include subsequent
general wage increases." (Underscoring added.)
the organization takes the further position that the term "normal rate
of compensation" includes not only wages, but also the number of days in the
week, i.e., five day work week - six day work week. Thus, if a Signal Maintainer
works a five day 40 hour position rated hourly and a Testman works a five day 40
hour monthly rated position, each of the positions must be considered equivalent
to each other for payment guarantee purposes; and that any.overtime worked on the
hourly rated position cannot be applied to a guarantee which is based on the
monthly rated position.
To construe "normal rate of compensation" any other way, the organization submits, would put an employe in a position where he would be required or
forced to work more hours (as an hourly rated employe) in order to be entitled
to the full monthly guarantee. .
Based on the facts as disclosed in the record in this case the Board
finds that under the provisions of Article IV, Section 1, Carrier may apply overtime hours worked in the hourly rated position to fulfill its obligation not to
put protected employes in a worse position with respect to compensation.
In ward No. 229, this Board held:
"Under Article IV, Section 1, Carrier is required to insure that protected employees 'shall not
he placed in a worse position with respect to compensation than the normal rate of compensation' on
October I, 1964. There is no obligation to increase
the October 1, 1964, compensation which would result
tf
f· '
-3-
"if it guaranteed a protected employee the monthly
rate he received for 211 2/3 hours in addition to '
overtime pay for any hours now worked in excess of
40 per week. The employee surely is not placed in
8
worse position so long as he works no more hours
than he had worked to obtain his guaranteed rate."
The Board's finding is further supported by the fact that unlike
Section 1 of Article IV, Section 2 of Article IV (which applies to other than
regularly assigned employes) includes hours worked in determining payment.
Finally, the Board finds, as it did in Award No. 229, that the facts
in this situation make it unnecessary to decide whether an employee may be
required by Carrier to work a greater number of hours as an offset against the
guarantee under the terms' of the February 7, 1965 Agreement. The scope of
this Interpretation is limited to the question of whether it is permissible
for Carrier to apply such overtime hours when and if they had been
worked.
lit
M/tt t 5r~
Nicholas Jim 2umas
Neutral er
Washington, D. C.
Dated: August 5, 1971