SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Chicago, Burlington & Quincy Railroad Company
TO THE and
DISPUTE Transportation-Communication Employees Union
QUESTIONS 1. Did Carrier violate the Agreement, par-
AT ISSUE: ticularly Article V, when it refused to
pay D. E. Parish a lump sum separation
allowance (in lieu of all other benefits
and protections provided in the Protective
Agreement and Washington Agreement) when
the agencies at Hale and Sumner, Missouri,
were consolidated .larch 5, 1966?
2. Shall Carrier be required to allow D. E.
Parish a lump sum separation allowance
computed in accordance with the schedule
set forth in Section 9 of the Washington
Job Protection Agreement?
OPINION On January 11, 1966, the parties entered into an
OF BOARD: implementing agreement which provided for the con
solidation of agency positions at Hale and Sumner,
Missouri. The senior employee at the two stations
was given preference in selecting the dualized job. The agree
ment added that if he did not want it, then it was to be avail
able to the junior man. If the junior man also declined it, it
would be bulletined as a new position.
Section 6 of the implementing agreement provided:
Any protected employe transferring to
a new point of employment as a result
of the operational and organizational
changes made herein, therefore requiring
a move of residence, will be entitled to
the benefits provided for in Article V
of the Agreement made on February 7, 1965,
and interpretations thereto dated November 24, 1965.
Award No.
zi9
The dualization was effective March 7, 1966.
claimant, a protected employee, by letter on February 26, 1966,
advised Carrier that he elected to resign "in lieu of transferring."
He requested payment of the separation allowance set forth in
the Washington Agreement:.. His letter stated, in part:
Please be advised that I elect to
resign on the effective date of the
dualization in lieu of transferring,
and respectfully request a lump sum
separation allowance computed in
accordance with the schedule set
forth in section 9 of the Washington
Agreement.
Article V of the February 7, 1965, Agreement provides a lump-sum separation allowance in accordance with the
Washington Agreement w'nen employees are requested to transfer,
pursuant to an implementing agreement, and it necessitates a
change in residence. There is no question that this implementing
agreement grants Claimant the Article V benefits, if he transfers to a point requiring a change of residence. Haaever,
Carrier contends that Claimant did not transfer to any new point
of employment at all, nor was he requested to make such a transfer. Carrier said it had no reason to make the request since he
had primary rights to the dualized position. Carrier contends
that Claimant has no contractual support for the separation
allowance "if he elects neither to take the dual agency or transfer to some other station."
According to the organization, since Claimant
had a seniority date of 1905 he could have selected virtually
any position for which he was qualified. It is perfectly clear
that Claimant properly exercised his option to decline the
dualized position. But it is also plain that he neither transferred, nor was he requested to transfer, to a point of employment requiring a change of residence.
Neither the implementing agreement nor the
February 7 Agreement provides for a separation allowance simply
because an employee exercises a right to decline a position.
There is nothing in the record which indicates what transfer
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Award No.
2 1?
Case No. TCU-23-W
or transfers were available to Claimant and whether a change of
residence would have been involved had he made a transfer. Thus
what is sought here is the transformation of Section
6
of the
implementing agreement and Article V of the February
7
Agreement
into superfluities, as they would be if the separation allowance
were to be made payable merely upon resignation.
If Claimant, in accordance with the implementing
agreement, had been required to transfer to another position and
if it required a change of residence, he would have been entitled
to the separation allowance. However, a claim cannot be based
upon the subjunctive. It must rest upon established facts and must
meet contractual prerequisites. This claim does not.
A W A R D
The answer to the Questions is No.
Gw1
Milton Fri - an
Neutral Member
Washington, D. C.
November/,/,,, 1970
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