Award 17o. _t~;7
Case No. CL-34-1:
SPEC l-AL QOAM) O1' ;~!;,T(r~ =-" P'n. G0.S
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Enpress & Station Ec: yes
DISPUTE ) and
Eric Lacka;anna Railroad Company
QUESTIONS
AT ISSUE: (1) Mr. W. F. Hear ·y, an employe of the Erie Railrond,
' was involved in the coordination of the Passenger
Stations of the former Erie Railroad and the Delc rare,
Lackawanna and Western Railroad at Jersey City and
Hoboken, New Jersey, which occurred on or. about
Octobc, 13, 1956, including the ferry abandon;aeni: on
Febrvvv:y 19, 1958, as a part of such coordination;
and as an employe "continued in service" is, there
fore, entitled to be paid a display :.v=at allowance
under Secti-n 6 of the "Agrc :neat of Pay, 1936,
Washii._toa., D. C. "
(2) As an e:aploy, involved in the consolidation and "con
tinued in service" V. W. F. Heaney is entitled to be
paid a displacen!ent allowance equal to the difference
between his monthly earnings on any position he has
held during the proteetivr period as provided 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 R ilroad Company were
coor6inated. Between August 27, 1956, when the Interstat·
Commerce Commission app oved tae coordioetion and the
effective date of such on Gct:·,er
'3;
1956, Implercntin; A3rwcments were
negotiated with the various Organizations involved tharein. As C rrier was
preprving to abandon the ferry service operated by Erie, it was compelled to
desist die to litigation initl..led by Northern Valley Commuters As socioo,tion,
which lasted until February, 1958. During the period of such litigation, Carries
was required to retain CW:.ir::<:!.t s po: i.tioa. o':. Perrym:oMr. However, an January
18, 19.58, Claimant's position was finally abolished and h_n, thnreaft=·or, dis
placed on a number of positio ts. Alkhouga a position. of Supervisory Clerk was
bu17-ecined on Larch 30, 1959, pryLng a higher rate of compannation, C1a:m- '.
failed to aid nor such and it: v;a.s ,_::ar,iwd to s junior employee, P. J. Rocca.
Award No. _1817
Case No. CL-.' -::
_ 2 -
1nus, two iasu.s are presente' fo' our consideration,
namely, from what period of times does Claimant's five-year protective
peri_oJ start to run and the al;;jurt of comrens; tion tc be al.; lied a;air:;t
Claimant ·:hich ~: ns earned by
ti.-,
junior employee, P. J. Roach, wiio biu
into the :.uperv-liory position on ::arch 30, 1959.
Both protagonists, in their ef;_orts 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 d;.ce.I-r, ·s
with the final conclusion as stated in that Award. It is, therefore,
incurbent upon us to atteri:;·t to reconstruct the basis for the deductions
contain^.d in t' at Docket, in order to determine the significance of ti
language espoused in th-, Decision..
Prior to our analysis of Docket No. 67, we would first
quote for ready reference tile applicable provisions of the Agreement of
May 21, 1936, the Washington Job P;Aection Agreement.
'11Section
.'_L.
The term 'tune of coo- iina~:ion' a. used
herein includes the period following the efffec':ive date
of a coordi~c,tion during which changes consec nt upon
coordinatiu- are bFAng r:. ae effective; as appiyin g to a
partiol:lrr employe i;: means the date in said period
when that employee is first adversely affected as a
result of said coordination."
"Section_6(a). No employee of any of the carriers in
volved in a particula.. coordination who is. continued
in s:rvice shall, for a period not exceeding five
years following; the effective date of suc-h coordination,
be placed, as a result of such coordination, in a worse
position with respect to compensation and rules Zovern
ing working conditions than he occupied at the tim: of
such coordination so long as he is unable in the normal
exercise of his seatiority rights under existinagree
ments, rule .:,d practices to obuain a position praducing
compensation c1u~Ito or e;ceecling t.i_ compen5ation of
the position held 'ay him .;t the tune of the par:icula r
coordination, except howev:r, that if he fails to
exerci:a his seniority rights to secure another avail,ble
position, which does not: reaiiire a change in residence, to
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
March, 1958, in which his compensation for the number 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.
1^:1
2. Claimant Heaney was continucd in service due to
litigation instil .:t.~d i.· D.',,nrther:: Valley Commuters
Asso: la!-,ion.
3. Claimant's job .^.s Ferryi:;~ster s.os duolis:> .on
January 18, 1958.
4. January 18, 1958, was the. date of the first adverse
effect- of the coordination which made the employee
eligible for tao benefits of Section 6.
5. Thereafter, the protection of the Agreemnt is his
for the specified five years in the ordinary ca-2.
6. However, the facts in the inst:^nt dispute indicate
that this is not the ordinary case. Therefore, we
turn our attention to the Carrier's arg -ants concerning the litigation, a:, well as Claic .pt's
fiilure to bid on tire Supervisory Clerk position in
March, 1959.
Previously, we mentioned that litigation was instituted by the
northern Valley CorcnuLers in Octob=·r, 1956, which
;.ns
not termina;:ed until
February, 1958. Tha Carrier argues, therefore, the:. the employees should
not benefit from such litigation, inasrrsch as the Carrirr was prevented frock
abolishing Clair;ant's position during this period. In support of this contention it cites Docket Nos. 2 and 13 of Arbitration Board ho. 289.
We would be prepared to acceda to th: Carrier's thrust in this
regard, if sufficic. nt proof were included the eof. TL- record indicat:cs
that between August 27 acid October 13, 1956, uha Organization neotiattad
an ImpletroAC,
nS;
Agreement with respect to the said coordination. Insofar
as the 1956 coordination was concerne only the Coi;,m:ters Association was
a litigant, not the Organization. Tr· -, the Carrier alludes to t~;e fact
that "---this coordination was also involved in a litigation, crc.nted by
the en:plf. :, which prevented Carrier from implcm_:ntiuc; its coordination
plan;: fog: over 16 month:',.' Thus, the inpressioo is left that ti!:~ Organiaation
was a pc°:~:y to such liti-ation. However, we mr.y not indulge in conjcctcres.
l;: are -:,rare that the orl;:,~nizatioa was ,: party litigaat in tile 1960 coordinatiun
---but: nut to the 1056 coordi:inLion. We do not Lelicve that tae employcass should
be p;.nalized for an act over erhich they had no control. Tae'if:fora, in ollY View,
.,
the del.:, caused by the lit-i.,,,,_t ioi:
G:
as not
at-,-:.
.,ut.;.i:le to the Orr;ani..atiun.
Hence, it may not now he us<<d to pet:a lize ClaimaizL.
- 5 -
w;.-:t of the failure of Claimant t.. bid in to the higher r,itc(',
position of S, rvisory C7:2rk on 1·iarch 30, 1959? Section 6 (a) requires
that "he shall. thereafter be treated for the purposes of this section as
occupying the position which I:e elects to dcacline." E:·re, too,
wL·
find
the parties in disagraemont. The Carrier argues that all earnings of tl·e
junior employee should bc: held against Ci.airrant, whereas the Organization
contends that only the earnings of the junior which he received in the
pition of Supervisory Clerk should be applied against Claim_-~t. Hence,
osi
any earnings received as lox Car Checker, Chief Clerk or Assistant Chief
CL,rk, may not be used for this purpose. In our view, the junior employee's
earnings on those dat(:s when he filled the position of Supervisory Clerk,
as well as those dat:3 on which he could have worked the Supervisory Clerk
position, may be applied against Claimant.
We ca_uld note one additional remark. Numerous precedents were
cited by t'- par:. es to substantiate their arguments. Idhile we are prone,
at times, t disregard pr;cedent, ;se believe that in the instant d.':;pute we
are obligated to follow th:: 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 previous 1y,in~olving the samia parties,
as well as the same coordination.
1. Claimant, id. F. Ileanay, is entitled to be paid a displacem:,rt al-lo-1-c :ice a-der Sectiou 6 of the Washington
Job Protection Agreement.
2. In determining the displacerpnt allo:rauce to which
W. F. Heaney is entitled to for e.-.cli month of a period
of five years comancncing from January 18, 1958, the
date of the fist efc~; t of the coordination, tha
earnings of the junior employee, P. J. Roach, on those
dates when he filled the ;osition of Supervisory Clerk,
as we' '. .,.~ thos, dates on which .,e could have worked tl-·=
Super--.;ory Clerk position, may be _>pl .ed a6; lust
Claimant
surrlly
14.
~~
i/
Dated:
w
arhington, D. C.
January 19, 1.970