Beginning in June, 1990, the Carrier experienced a severe decline in business. For the first time, the Carrier applied the above quoted, amended decline in business provision. Two separate disputes arose.
In computing the decline in the number of cars handled, the Carrier counted only loaded, revenue-producing cars. The organization points out that the language of amended Article I, Section 3 plainly mandates that the Carrier count all cars, both loaded and empty cars. The Carrier contends that the underlying intent of the negotiators who wrote the revised decline in business formula contemplated counting only cars which generated revenue because a decrease in revenue accurately measures a decline in business. The Carrier further contends that counting all empty cars is particularly onerous with regard to empty rack cars. Between the receipt of the cars from the NS and the ultimate placement of the cars at Ford Motor Company, the empty rack cars returning from Ford Motor Company are moved to and from CSX Transportation. The two connections with CSX are for maintenance and inspection purposes and are non-revenue movements.
When construing contract language, this Board must attribute to the words, used by the parties, their plain, usual and ordinary meaning. In this case, the negotiators of amended Article I,
CASE NO. CL-27-SE Section 3 clearly and unambiguously provided that the decline in business formula would include ~~. . . cars over its connection with all lines. . ." This phrase does not draw any distinction between empty and loaded cars or between revenue-producing and non-revenue cars. Indeed, the language clearly manifests that the Carrier must count all cars at every connection with all lines. It may be that the formula will occasionally operate in a harsh fashion, especially with regard to the empty rack cars destined for the Ford Motor Company. However, this Board may not add to or modify clear and concise contract language. Neither may this Board dispense equity between the parties. The Carrier's remedy is to seek, through negotiations, a modification in the decline in business formula. Moreover, the 1984 negotiators undoubtedly realized that the Carrier, a switching road, would handle a large number of empty cars. In any event, this Board need not consider the Carrier's argument concerning the underlying intent of the drafter of the amended Article I, Section 3, since the contract language is patently clear. Negotiating history may not alter or vary clear language in the Agreement.
The second dispute in this case involves the proper interpretation and application of the clause ". . . excluding those whose protected status has been suspended . . ." in amended Article I, Section 3.
As the business downturn continued through the successive months subsequent to June, 1990, the carrier adjusted the base -3-
CASE NO. CL-27-SE number of protected employees by excluding those protected employees who, as a result of applying the decline in business formula during the previous months, were no longer entitled to receive protective benefits. The Organization argues that the base number of protected employees must remain constant and is only reduced when a protected employee has lost protective status pursuant to Article II Section 1. The carrier responds that if the organization's interpretation is applied, the clause at issue in Article I, Section 3 would be rendered meaningless because the protective status of employees can be suspended only by operation of the decline in business formula. The Carrier stresses that Article II Section 1, determines whether the protected status of a protected employee is terminated.
Like our analysis of the first issue herein, this Board needCASE NO. CL-27-SE I, Section 3. The introductory clause, which number of protected employees is reduced as
protected employees for purposes of applying the decline in business formula. The language in the penultimate sentence specifically refers to reducing protected employees "herein." The word "herein" clearly means a reduction in the base of all employees as defined earlier in Article I, Section 3.
The Organization relies on the interpretation to Award No. 1 of Special Board of Adjustment No. 608 (Kosher). A careful reading of that decision reveals that Board No. 608 did not interpret the clause ". . . excluding those whose protected status. has been suspended." Rather, the Board defined the breadth of the base of protected employees by holding that the base includes protected employees who have not claimed protective benefits.
restoration of protective benefits. The issue of how to restore the benefits to protected employees who have endured a suspension of benefits upon an increase in business is not before this Board. Nothing in this opinion should be construed to either condone or nullify the Carrier's proposed method for determining, on a monthly basis, how many protected employees are again entitled to protective benefits if and when business conditions improve.
if and when business
the Organization has