SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Alpheus Arrington, Baggage and Mail Handler formerly employed
TO ) by Seaboard Coast Line Railroad Company and Chesapeake and
DISPUTE ) Ohio Railway Company
and
Seaboard Coast Line Railroad Company and Chesapeake and Ohio
Railway Company
QUESTION
AT ISSUE: Was Claimant required to exercise his seniority on his senior
ity district even though it required a change
in
residence ?
OPINION
OF BOARD: The instant claim was initiated by Claimant's attorney under
Article VI, Section 3, of the February 7, 1965 National Agree
ment, which abrogated Section 13 of the Washington Job Protec
tion Agreement. In lieu thereof, the disputes provisions and
procedures of the February 7, 1965 Agreement, were substituted therefor. In
brief, Claimant was adversely affected as a result of a transaction whereby
Carrier discontinued its passenger train operations at Main Street Station in
Richmond, Virginia, on April 26, 1960. In subsequent litigation, the Court
and the Interstate Commerce Commission determined that claimant, and others,
were entitled to protection under Section 5!2)(f) of the IC Act. Thus, the
Carrier. was required to protect the adversely affected Main Street employees
to the extent of the Washington Job Protection Agreement as modified by the
Oklahoma Conditions--which substituted Oklahoma Condition 5 for WJP 7(a).
In this context, Claimant's position of baggage and mail handler was abolished on April 25, 1959. Thereafter, Claimant elected to stay at
Richmond and protect extra work only at that point. Hence, the crux of the instant dispute revolves around the interpretation of Section 6(a) of the Washington Job Protection Agreement, hereinafter quoted:
"No employee of any of the carriers involved in a particular coordination who is continued in service shall, for a period not exceeding five years following the effective date of
such coordination, be placed, as a result of such
coordination, in a worse position with respect to
compensation and rules governing working conditions than he occupied at the time of such coordination so long as he is unable in the normal exercise of his seniority rights under existing agreements, rules and practices to obtain a position
producing compensation equal to or exceeding the
compensation of the position held by him at the
time of the particular coordination, except however, that if he fails to exercise his seniority
rights to secure another available position,
which does not require 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
Award No. 266
Case No.
CL-19-SE
_ 2 _
"to retain, he shall thereafter be treated for the
purposes of this section, as occupying the position
which he elects to decline."
The Carrier concedes that Claimant was adversely affected as a
result of the transaction in April, 1959. It further concedes that for the period
of May 1, 1959 through March 21, 7.960, Claimant's seniority did not entitle him
to regular employment. However, beginning with March 22, 1960 through April, 1964
--the termination of the five year protective period provided by WJP 6(a)--Claimant could have obtained a regular position at Gladstone, Virginia, and other
points, on his seniority district. As previously indicated, Claimant elected to
protect extra work only at Richmond.
Thus, it is readily apparent that the parties are in disagreement
as to the interpretation to be placed on Section 6(a). Claimant, through his
attorney, argues that the language contained therein did not require him to exercise his seniority rights to obtain a position which required a change of residence. Conversely, Carrier contends that the affected employee was first required to exercise his seniority rights to a position located within his seniority district. If no position is available to him at the point where previously
employed he is then required to exercise his seniority on his seniority district
which may require a change in residence. Thereafter, the exception comes into
play, namely, where another higher-rated position becomes available, then he may
elect to retain his present position, instead of opting for the higher-rated position which would require a change of residence.
This particular facet of Section 6(a) is one of first impression.
Was an adversely affected employee required to exercise his seniority rights within his seniority district, even though it required a change of residence? The
Carrier, by analogy to other documents and proceedings, asserts that the intent
of the Commission and of RLEA can be gleaned from a review of the arguments presented not only in the litigation preceding the instant dispute, but in other
transactions. The essence of these citations substantiate the holding that affected employees are required to exercise their seniority rights to available
positions within their seniority district, though it entailed a change of residence.
We have carefully analyzed Section 6(a) of the Washington Job Protection Agreement. In our view, we find that the phrase, "except however, that
if he. fails to exercise his seniority rights to secure another available position,
which does not require a change in residence," is basically a condition subsequent.
Thus, the condition precedent--the affected employee is required to exercise his
rights to an available position in his seniority district--must first have occurred.
Hence, an affected employee can not restrict his availability to one point on his
seniority district and expect his compensation to continue for the protective
period where other positions are available in his seniority district, albeit a
change of residence would be required.
Therefore, it is our considered opinion that the claim must be
denied.
Award No. 266
Case No. CL-19-SE
- 3 -
AWARD
The answer to the question is in the affirmative.
Claim Denied.
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/ MURRAY M. ROHMAN
Neutral Member
Dated: Washington, D. C.
October 27, 1971