SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railroad Signalmen
TO ) and
DISPUTE ) Toledo, Peoria and Western Railroad Company
QUESTION "Claim of the General Committee of the Brotherhood :F
AT ISSUE: Railroad Signalmen on the Toledo, Peoria 5 Western RaiLroad
Company:
That Mr. K. C. Carl, whose protected rate of pay ;eider the
February 7, 1965 Agreement is that of Testman Inspector, was
advised that effective May 4, 1978, his rate of pay would be
reduced to that of Signal Maintainer because he failed to bid
on higher rated position, now requests that the protected rate
of pay be paid, beginning May 4, 1978."
OPINION Claimant was a protected employee under the February 7, 1965
OF BOARD: Agreement. In April of 1978 he was receiving the rate of pay
of Testman-Inspector and occupying the position of Signal
Maintainer, residing in Piper City, Illinois with his assigned headquarters
at Gilman, Illinois. On April 24, 1978 Carrier advertised the position of
Testman-Inspector with headquarters at El Paso, Illinois and Claimant did not
bid on the assignment. The position was assigned to a junior employee.
Subsequently, on May 5, 1978 Claimant was notified by Carrier that due to his
failure to bid on the higher rated position his protected rate would be
reduced and that thereafter he would be paid the rate of the position he was
assigned to: Signal Maintainer. Following this, Petitioner informed the
Carrier that Piper City is forty-three miles from El Paso and the the new
position of Testman-Inspector would have required Claimant to change the
location of his residence. Carrier disagreed.
There is no dispute on the facts in this matter. The sole
issue herein is whether a change in residence was required under the
prevailing circumstances. Petitioner had taken the position, throughout the
handling of this dispute, that: "Of course, any distance greater than thirty
miles must constitute a change of residence under .... the February 7, 1965
Agreement." Carrier disagreed with this position.
Article IV, Section 4 of the February 7, 1965 Agreement
provides:
"If a protected employee 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 he elects to retain, he shall thereafter be
treated for the purposes of this Article as occupying the
position which he elects to decline."
Further, the interpretation of Article III, Section 1
developed in November of 1965 provides in pertinent part as follows:
"When changes are made under Items 1 or 2 above which do
not result in an employee being required to work in
excess of thirty normal travel route miles from the
residence he occupies on the effective date of the
change, such employee will not be considered as being
required to change his place of residence unless
otherwise agreed."
r
The issue in this dispute has been before this Board in a
substantial number of prior disputes. The approach generally taken has been
to construe Article IV, Section 4, and the interpretation, as being couched
in the negative. Thus, the conclusion was reached that if the change
required a move of thirty miles or less an employee would not be considered
as being required to change his place of residence but the language does not
explicitly say when that would be required (Award 271). However, no specific
standards have been established on this count. The Board so far has said
that seventy miles (Award No. 134), a hundred miles (Award No. 398) and
greater distances have been sufficient, per se, to require change of
residence. We are now asked whether forty-three miles is is the same
category.
First, we must reject the theory espoused by the organization
that any distance over thirty miles, under Article IV, Section 4, requires a
change of residence. Had the parties decided to promulgate such a standard
they could easily have done so since such specific standards have been
included in other crafts' agreements. Clearly, the Board has no authority to
establish a rule which the parties have failed to negotiate. We must take
the position that each case must be evaluated on its particular facts.
A review of the facts presented in this dispute reveals no
convincing evidence which would establish that a change in residence was
necessary had Claimant bid on the position at E1 Paso. Thus, Petitioner's
position relies solely on the forty-three miles commute, per se. Forty-three
miles, as we view it, is marginal. An hours commute would not necessarily
require a -_hange in residence. In fact, such commute is quite common
throughout the business world. However, under some circumstances, such
distance could require such a change. No circumstances establishing that
necessity were presented in this case. Thus, under the facts presenteO. in
this dispute, the forty-three miles, per se, does not support Petitioner's
position.
AWARD
Claim denied.
1. M. Lieberman
Neutral Member
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Dated: