CASE NO. CL-173-W established his job stabilization protection was rated at $2,875.78 per month. In each of the ensuing months, the Carrier apparently paid Claimant his monthly protected rate.
Later, pursuant to an October 17, 1989 Implementing Agreement, Claimant elected to resign from the Carrier and he accepted a separation allowance to be computed in accord with Section 9(b) of the Washington Job Protection Agreement. Section 9(b) of the Washington Job Protection Agreement provides:
This dispute centers on the mathematical method for payment calculating the separation allowance due Claimant pursuant to Section 9(b). The Carrier divided Claimant's monthly protective guarantee by 30, multiplied this so-called daily rate by 30 and then multiplied the rate by twelve. In simple terms, the Carrier's formula for computing Claimant's separation allowance was twelve times his monthly protected rate. Based on this formula, the Carrier paid claimant a lump sum separation allowance of $34,509.36 on January 2, 1990. Claimant protested the amount contending that his true severance allowance should have been $38,833.65. The Organization contends that it reduced Claimant's allowance because the Carrier's calculations were improperly based on 261 days of pay as opposed to 360 days of pay. Section 9(b), the organization asserts, calls for 12 months of pay (each month consisting of 30 days) which equals 360 days. Using Schedule Rule 49-B, the Organization concludes that Claimant's daily rate is his monthly
CASE NO. CL-173-W rate divided by 213 hours and then multiplied by eight hours. Using this formula, claimant's daily rate is $108.01 per day. To compute the Section 9(b) separation allowance, the daily rate is multiplied by 360 days.
A literal interpretation of Section 9(b) of the Washington Job Protection Agreement supports the organization's mathematical formula. The position, which embraced six days per week, was predicated on 213 hours per month. Therefore, the daily rate is computed by taking eight times 1/213th of Claimant's monthly rate. Section 9(b) then unambiguously provides that the daily rate shall be multiplied by 30 to determine one month's pay. Then, the one month's pay figure is multiplied by twelve months, which is equivalent to the organization's formula whereby the daily rate is multiplied by 360 days.
The Carrier cites Kleq_ et al. v. Southern Freight Association (Zumas; July 24, 1982) and an October 15, 1973 decision issued by the Assistant Secretary of Labor Paul J. Fasser involving an exempt employee on this property. Both cases are distinguishable from the peculiar facts in this claim. In Southern Freight Association, the arbitrator ruled that, for purposes of applying Section 9(b), the daily rate of a monthly rated position must be 1/30th of the monthly rate. This decision would ordinarily carry some precedential weight except, on this property, the Carrier has consistently used a different method to calculate the daily protected rate of an employee whose guarantee was predicated on a monthly rate. To determine offsets against the protected
CASE N0. CL-173-W guarantee, the Carrier utilizes schedule rules to determine the daily protected rate. Thus, the Carrier reaps a savings because it condenses the sixth day into five days for purposes of computing the offset. (See SBA 605, Award No. 481.) However, to maintain consistent and equal treatment of protected employees, the Carrier must apply the same calculation to determine the amount of a Section 9(b) separation allowance. The Assistant Secretary of Labor's decision is inapplicable to Claimant herein since the Grievant who petitioned the Assistant Secretary of Labor occupied an all services rendered, monthly rated position as opposed to a six day monthly rated position.
Therefore, the Carrier miscalculated Claimant's separation allowance under Section 9(b) Washington Job Protection Agreement.