SPECIAL BOARD OF ADJUSTMENT N0. 605

AWARD NO . 4 3 4 CASE NO. CL-123-W PARTIES TO DISPUTE:

TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS

- and -

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES

QUESTIONS AT ISSUE :

1. Did Carrier violate the provisions of the February 7, 1965 National Agreement, as amended by Agreement dated July 20, 1979, when it refused and failed to establish a protective rate of pay for Mr. C. R. Heisinger as provided by the Agreement, as amended? (Carrier's File 012)

2. Shall Carrier now be required to establish Mr. Heisinger's protective rate of pay to be that of the rate of his average monthly earnings in the preceding calendar year or the preceding twelve (12) months in which he performed service or was compensated for vacation pay, and compensate him for all protective pay benefits due beginning July 1. 1982?

OPINION OF BOARD :
C. R. Heisinger (Claimant) established a seniority date of April 10, 1964
under the BRAC Agreement on Master Roster 1. He worked as a Clerk until
June 15, 1977 when he was promoted to the position of Yardmaster, but retained
his accrued clerical seniority pursuant to Rule 66 of the BRAC Agreement.
He worked as a Yardmaster for about two years until that position was abolished
by Carrier in July 1979. At that time, Heisinger returned to service in the
clerical craft or class but lacked sufficient seniority to hold a regular job.
He was placed in furlough status and protected whatever extra work tie could get.

2

On July 23, 1982 the Organization sought to have Claimant placed on the list of protected employes subject to the benefits of the February 7, 1965 Nat.,*Aal Agreement, as amended by these parties in Memorandum Agreement of July 20, 1979 Carrier declined and also refused to recognize Claimant's request for protectiv4 pay benefits computed on the basis of his last twelve (12) months service as Yardmaster.
In Award No. H33 (Case No. CL-122-ii) involving these same parties aaJ a related issue, we were required to determine the intent of the contracting parties from external evidence, since no express language applied direct3y to that case. The present dispute may be distinguished on the ground that the agreed-upon Interpretations between the original contracting parties deal directly with the issue now before us:

Article I - Protected Employees

Section 1

Question No. 9: Can employment in more than one craft be counted in determining protected status?

Answer to Question No. 9: Ordinarily no; however, in cases such as promotion of a telegrapher to train dispatcher, promotion of a clerk to yardmaster, etc., where the seniority in the craft from which promoted is retained, employment in the higher classification will be counted.

Article IV - Compensation Due Protected Employees

Section 2

R li2n No 1: In determining the base period aj T

_!Hn Rd-er Section 2 of Article IV, may compensation earned in more than one craft be included?

WOW

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Mr to ?uestion No. 1: Under defined conditions

wViriR n Question and Answer No. 9 of the

Interpretation of Article I, Section 1, employes

may qualify as protected employes on the basis of

employment which includes service in specified

kinds of crafts other than the craft in which the

employe is to be protected. To the extent that

an employe whose guarantee is governed by Section

2 of Article IV has compensated service in such

other craft, such service will also be included

in determining the base period average earnings

and hours paid for. However, his base period

average monthly earnings shall be computed by

taking his average hourly earnings in the base

period in the craft in which he is protected

(adjusted to include subsequent general wage

increases), multiplying by the total number of

hours paid for in the base period in both crafts

and dividing by 12. Correspondingly, in

determining whether the compensation guarantee

has been met by actual service paid for in any

month after February 1965, and in determining

any additional payment guaranteed, the earnings

from actual service paid for will be considered

to be the average hourly earnings for that

month in the craft in which the employe is

protected multiplied by the average hours paid

for in both crafts in the base period."

The foregoing Interpretations have the same force and effect of the provisions of the February 7, 1965 National Agreement thus interpreted. When read together with the terms of the Amended Agreement of July 20, 1979, they leave no doubt that Claimant Heisinger vas a "protected employe" entitled to be placed. upon the list of protected employes with a protected rate established at the rate of his average monthly earnings in the preceding calendar year or twelve (12) months in which he performed service or vas compensated for vacation pay as a Yardmaster. The service as Yardmaster, although outside the clerical craft or class, is mentioned expressly by the parties. in their agreed-upon Interpretations and therefore, unlike in Award

4

No. (Case No. CL-122-W), we are neither required nor at liberty to

devine any other intent of the parties. "r

AWARD

Question No. 1 is aeswrd is the affirmative.

Question No. 2 is answered in the affirmative.

.. i

Dana R. Bischen, Chairman

Date: g/~/~Y

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