SPECIAL BOARD OF ADJUSTMENT N0
. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Express 6 Station Employee
DISPUTE ) and
Central Vermont Railway Company
QUESTIONS (1) Did the Carrier violate the provisions of the Implementing
AT ISSUE: Agreement of December 14,
1971,
particularly Section
2,
(a), when it
required Mr. E. A. Tape, Agent, Bethel, Vermont, to exercise his
seniority to point in excess of thirty
(30)
mile radius defined as a
point requiring a change of residence?
(2)
Shall the Carrier be required to restore claimant to his
protected rate and compensate him for wage loss subsequent to
September 26, 1978?
(3)
Shall the Carrier be required to compensate claimant's travel
time and expenses for each day he is required to work at his present
location?
OPINION OF Carrier and the Organization entered into an Implementing Agreement
THE BOARD:
on December 14, 1971
for the purpose of providing protection for
employees who might be adversely affected by the establishment of a
Carload Center at St. Albans, Vermont and attendant changes. Section
2
of that
Agreement provides:
Section
2:
The employees affected by this implementation shall have
the following options:
"a) Exercise seniority rights in accordance with the Collective
Agreement to another available position not requiring a change
of residence.
They will not be compelled to exercise their seniority rights at
a point beyond their home location for a period of five years,
as proscribed in Paragraph
6
of the Washington Job Protection
Agreement of
toy
21, 1936.
"b) Exercise seniority rights in accordance with the Collect'Agreement to another position which does require a change .n
residence.
"c) Elect to resign and accept a lump sum separation allowance
computed in accordance with the provisions set forth in Section
9
of the Washington Job Protection Agreement of Nay
21, 1936,
such separation to be computed as follows:
Award No. 423
Case No.
CL-71-E
Length of Service Separation Allowance
1 year and less than 2 years 3 montas' pay
2 years
5 " or more
Claimant herein had been the regularly assigned Agent at Bethel.
Carrier sought and secured permission from the Vermont Public Service Commission
to close its facilities at Bethel and Montpelier Junction and transfer the
functions to the St. Albans Carload Center. The parties agreed that the 1971
Implementing Agreement would cover the affected employees. Effective September
29, 1978 the station at Bethel was closed and Claimant herein elected to displace
the third trick operator's position at Montpelier Junction (27 miles from his
home location). Claim was submitted for the difference between the protected
rate of Claimant and the rate at Montpelier Junction (64 per hour) and was
rejected by Carrier on the grounds that he did not exercise his rights to a
position producing compensation equal to his protected rate - and such position
was available to him at White River Jct., Vermont (34 miles from his home
location).
On January 26, 1979 the station at Montpelier Jct. was closed and
Claimant, under protest, displaced at White River Jct. resulting in the dispute
herein. It is noted that at the time of the development of the Implementing
Agreement, in 1971, there was system wide seniority for the Agent-Telegraphers.
Carrier relies in large measure on Award
No.
266 of this Board as
interprets Section 6(a) of the WJPA. This argument rests on the reference to
Section 6 of the WJPA in Section 2 of the 1971 Implementing Agreement.
Petitioner, inter alia, argues that the .reference in Section 2 was to Section
6(c) of the WJPA only. Further, the Organization argues that Award
No.
266 is
not consistent with the factual and contractual language of the instant case.
The issues involved is this dispute may be resolved without
construing the applicability of the WJPA or of Award
No.
266. The crux of this
dispute is whether Claimant was forced to exercise his seniority to a position
requiring a change of residence. The dispute falls into two parts: the move to
Montpelier Jct. and later the move to White River Jct. With respect to the first
move, it is clear from the handling on the property that the carrier wan aware
chat this was the only position available to Claimant within his "home location"
limits. Thus, under the provisions of the Implementing Agreement, he should have
received his protected rate. When Montpelier was closed and Claimant was forced
to exercise his seniority to White River Jct., Carrier did not know whether or
not this would require a change of residence. The facts indicate that there was
a distance of 34 miles involved and it was on this basis chat the Claim was
pursued. However, the record and the claim itself indicate that Claimant was not
in fact required to change his residence in order to fill the position ac White
River Jct. This Board has considered this precise situation in Award No. 271.
In that Award we said that by not moving the Claimant had transformed the (thirty
mile question) of whether or mat he was required to move from the theoretical to
the practical. Further we said:
- 3 - Award No. 423
Case No.
CL-71-E
"Since Claimant did not move, he properly exercised his seniority
rights to secure another available position upon being displaced,
which did not require his change in residence. He is therefore
entitled to continuation of his guaranteed compensation."
With respect to the request for travel time and expenses contained in paragraph
(3) of the question, we have ruled on that precise issue in Award 368: the Board
has no jurisdiction to make such a determination.
AWARD
Question
No. 1 is
answered in the negative.
Question
No.
2 is answered in the positive.
Question
No.
3 is answered in the negative.
i
J~ ~ ` t'~,' lii... 'ls'-L'L
I. H. Lieberman
Neutral Member
Dated: "~ --tr