Case No. MW-57-W
SPECIAL BOARD OF ADJUSTMENT NO. 605
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO THE ) and
DISPUTE ) CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY
QUESTION AT ISSUE:
1. Were Section Foreman D. E. Cockrell and Trackman L. Schneider
entitled to a moving allowance and protection from the loss on the
sale of their homes under Article V of the February 7, 1965
Agreement when the Carrier abolished the Miller, South Dakota,
section and assigned the section crews duties to the adjoining
sections located at Huron and Pierre, South Dakota?
2. Is Assistant Foreman M. M. Mack entitled to moving allowance
and protection from the loss on the sale of his residence under
Article V of the February 7, 1965 Agreement when he was displaced
by J. A. Brand at Aberdeen, South Dakota, on December 14, 1982;
differential in rates between a Trackman and an Assistant Foreman;
and thirteen (13) days lost wages because of not being able to
work in his zone?
3. Is Track Supervisor J. A. Brand entitled to a moving allowance
and protection from the loss on the sale of his residence under
Article V of the February 7, 1965 Agreement because of Carrier's
abolishment of the Track Supervisor's position at Redfield, South
Dakota?
4. Are the claims allowable as presented under Rule 21(a) of the
August 1, 1974 Agreement and the Interpretations of the February
7, 1965 Agreement since the Carrier failed to give a reason within
the time limits for the disallowance of the claims?
OPINION OF THE BOARD:
Claimants D. E. Cockrell and L. Schneider (Section Foreman and
Trackman, respectively) were assigned to Miller, South Dakota when, in
December 1982, the Carrier abolished their section. Cockrell displaced to
Pierre, South Dakota and Schneider displaced to Huron, South Dakota.
Claimant M. M. Mack, Assistant Foreman, was assigned to Aberdeen, South
Dakota until his position was abolished in December 1982. At that time, he
displaced to Pierre, South Dakota until he was displaced by J. A. Brand.
When that occurred, Mack displaced to Huron, South Dakota.
Claimant J. A. Brand, Track Supervisor, was assigned to Redfield, South
Dakota, until his position was abolished in December 1982. At that time, he
displaced Claimant Mack at Pierre, South Dakota.
Although each of Claimants displaced to a different section, the system
map in the record and the unchallenged assertion of the Carrier indicates
that all the various assignment points are within Zone D of Seniority
District 6.
Article V of the February 7, 1965 Agreement provides:
Article V--Moving Expenses and Separation Allowances
In the case of any transfers or rearrangement of forces for which
an implementing agreement has been made, any protected employee
who
has 15 or more years of employment relationship with the
carrier and
who is
requested by the carrier pursuant to said
implementing agreement to transfer to a new point of employment
requiring him to move his residence shall be given an election,
which must be exercised within seven calendar days from the date
of request, to make such transfer or to resign and accept a lump
sum separation allowance in accordance with the following
provisions:
If the employee elects to transfer to the new point of employment
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requiring a change of residence, such transfer and change of
residence shall be subject to the benefits contained in Sections
10 and 11 of the Washington Agreement notwithstanding anything to
the contrary contained in said provisions and in addition to such
benefits shall receive a transfer allowance of four hundred
dollars ($400) and five working days instead of the "two working
days" provided by Section 10(a) of said Agreement.
If the employee elects to resign in lieu of making the requested
transfer as aforesaid he shall do so as of the date the transfer
would have been made and shall be given (in lieu of all other
benefits and protections to which he may have been entitled under
the Protective Agreement and Washington Agreement ) a lump sum
separation allowance which shall be computed in accordance with
the schedule set forth in Section 9 of the Washington Agreement;
provided, however, that force reductions permitted to be made
under this Agreement shall be in addition to the number of
employees who resign to accept the separation allowance herein
provided.
Those protected employees who do not have 15 years or more of
employment relationship with the carrier and who are required to
change their place of residence shall be entitled to the benefits
contained in Sections 10 and 11 of the Washington Agreement
notwithstanding anything to the contrary contained in such
provisions and in addition to such benefits shall receive a
transfer allowance of four hundred dollars ($400) and 5 working
days instead of "two working days" provided in Section 10(a) of
said Agreement.
Article III of the February 7, 1965 Agreement provides:
The organizations recognize the right of the carriers to make
technological, operational and organizational changes, and in
consideration of the protective benefits provided by this
Agreement the carrier shall have the right to transfer work
and/or transfer employees throughout the system which do not
require the crossing of craft lines. The organizations signatory
hereto shall enter into such implementing agreements with the
carrier as may be necessary to provide for the transfer and use of
employees and the allocation or rearrangement of forces made
necessary by the contemplated change. One of the purposes of such
implementing agreements shall be to provide a force adequate to
meet the carrier's requirements.
Article III, Section 1 of the November 24, 1965 Interpretation
Agreement provides:
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Article III--Implementing Agreements
Viso
The parties to the Agreement of February 7, 1965, being not in
accord as to the meaning and intent of Article III, Section 1, of
that Agreement, have agreed on the following compromise interpretation to govern its application:
1. Implementing agreements will be required in the following
situations:
(a) Whenever the proposed change involves the transfer
of employes from one seniority district or roster to
another, as such seniority districts or rosters existed
on February 7, 1965.
(b) Whenever the proposed change, under the agreement
in effect prior to February 7, 1965, would not have been
permissible without conference and agreement with
representatives of the Organizations.
That part of Item 1(a) which reads
...as such seniority districts or rosters existed on
February 7, 1965
applies particularly to situations such as those that frequently
obtain in collective agreements to which the Brotherhood of
Maintenance of Way Employes is a party which provide that
seniority is co-extensive with the territorial jurisdiction of a
supervisory officer. Under these conditions, if the territory of
the designated officer is expanded or contracted it does not have
any effect on the seniority of the involved employes. The
language above quoted is intended to mean that seniority districts
or rosters existing on the effective date of the February 7, 1965
Agreement are not to be changed insofar as the application of the
aforesaid agreement is concerned, except as the result of an
implementing agreement or other agreement mutually acceptable to
the interested parties.
The Letter of Understanding dated April 18, 1974 provides:
During the course of negotiations involving the consolidation of
the existing Maintenance of Way Agreements, and particularly the
conformation of seniority districts to operating division,
question was raised as to the effect of such changes on the
protective status of Protected employes under the February 7, 1965
Agreement.
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Specifically, the question relates to the provisions of the
February 7, 1965 Agreement and the interpretations thereof which
relate to pre-existing seniority districts. As you know, in many
cases the pre-existing seniority district is now divided between
two, and in some cases three seniority districts. Occasions
therefore may exist where an employe cannot work in his preexisting seniority district solely because it is not a part of his
present seniority district.
In order that this problem not arise, I propose we agree that for
the purpose of the application of this portion of the February 7,
1965 Agreement we agree to substitute, for the pre-existing
seniority districts, the zones as set forth in the new schedule
agreement.
The position of the Organization is that Claimants are entitled to
protection benefits because the Carrier failed to provide the appropriate,
timely explanation for the denial of claims, in violation of Rule 21(a); and
Claimants are protected employees, qualified to receive protection benefits,
according to Article V. On the timeliness theory, the Organization contends
that the Carrier's answers to its claims provided no reasons for the
denials. As to the qualification theory, the Organization maintains that
the Carrier instituted an operational change which required protected
employees to be relocated outside the "30 normal travel route miles" and
that such a change does not require an implementing agreement as would
otherwise be required by Article III, Section 1. Therefore, the absence of
an implementing agreement cannot defeat the employees' claims for protection
benefits. Furthermore, the Organization contends that if an implementing
agreement is deemed to be required, then the Letter of Understanding dated
April 18, 1974, constitutes that agreement; and with the agreement in place,
the Organization contends that Claimants are entitled to the protection
benefits claimed. The Organization maintains that this Letter substituted
zones for the seniority districts, and that fact renders the Letter of
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Understanding an implementing agreement.
The position of the Carrier is that Claimants are not entitled to labor
protection benefits.
Specifically, the Carrier notes that Article V applies only "in the
case of any transfer or rearrangement of forces for which an implementing
agreement has been made" and it contends that no implementing agreement was
necessary because the transfers or rearrangements of Claimants were not
necessitated by "technological, operational or organizational changes."
Rather, the Carrier maintains, the transfers of Claimants were made
necessary by the abolishment of jobs due to "budgetary constraints." The
Carrier cites Award Nos. 6 and 167 of this Board in support of its position,
especially as to the conclusion that "ordinary reductions in force due to a
fluctuation in business does not fit the definition [of `operational' or
'organizational']."
The Carrier further maintains that should this Board find that the
changes made were technological, operational or organizational, then no
implementing agreement was required because the Claimants' moves were all
within the same zone of Seniority District 6. As to the agreements of April
18 and May 30, 1974, the Carrier argues that these are limited and deal only
with the realignment of seniority districts to conform to the operating
districts of the Carrier. Thus, protection benefits apply only to those
employees who were affected by the change in seniority districts, and the
Carrier cites the decision of an Oregon Short Line committee, chaired by
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Neutral Kasher, which resolved this point in the course of a broader
decision between it and the Organization in 1982. Finally, the Carrier
asserts that its responses to the claims herein were timely and adequate.
After considering the entire record, the Board finds that the instant
claims must be denied.
The Board finds that arguments concerning time limit violations in this
case have no merit. The finding of this Board in Award No. 318 with respect
to time limits is dispositive of the issue.
On the merits, the arguments of the Carrier are persuasive and well
founded. There is substantial, credible evidence in the record that all the
relocations applicable to Claimants took place within Zone D of Seniority
District 6. Article III, Section 1 is clear that an implementing agreement
is required only when the relocation or realignment of employees is
necessitated by contemplated technological, operational or organizational
changes. The credible evidence in the record is that the relocation of
Claimants was the product of normal business judgment, what the Carrier
termed "budgetary constraints," not those reasons that would require an
implementing agreement. Further, the decisions of this Board cited by the
Carrier are persuasive and controlling as to whether ordinary reductions in
force due to market conditions are actions that require the creation of an
implementing agreement; they are not. Since Article V labor protection
benefits only apply where an implementing agreement is in effect, they
cannot apply to Claimants here.
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There is sufficient evidence in the record to indicate that the April
18, 1974 Letter of Understanding is an implementing agreement. That Letter
was of limited purpose which did not include the abolishment of Claimants
positions.
AWARD The answer to Questions 1, 2, 3 and 4 is "No."
Nicholas H. Zumas, utral Member
Date:
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