BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES




            THE DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY


STATEMENT OF CLAIM: _ .

 (1) Carrier violated the provisions of the August 4, 1965 Memorandum of
 Agreement between The Detroit and Toledo Shore Line Railroad Company and
 the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express
 and Station Employes when it discontinued effective December 31, 1965 all
 positions at Detroit, Michigan held by employes affected by transfer of

certain work from Detroit, Michigan to Toledo, Ohio on July 30, 1965 and who were restored, effective August 5, 1965 to employment and continuation on the payroll at their former location at a rate of pay no less than their pay prior to July 30, 1965.


(2) Carrier shall now be required to pay the following employes of the office of Superintendent Car Service, who were on the payroll as of July 30, 1965, for the difference in rate of pay between the position they

occupied on July 30, 1965 (plus general wage increases effective January 1, 1966 and any subsequent general wage increases) and that which they have received, if any, commencing with January 1, 1966 and each and every day thereafter until the violation of which ore complain is corrected:


                                                  Adjusted Rate

                  Of Pay

                  Seniority Title Of Position Effective

Name Date Held 7-30-65 1-1-66
 Polley, R. M. 5- 3-19 Reclaims Payable Clerk $ 25.4924
 Kirkendall, M. C. 7- 8-25 Reclaims Collectible
 Clerk 24.7824
 Thompson, F. M. 7-26-26 Secretary and Open
 Records Clerk 24.3124
 Nopper, J. J. 3- 1-41 Demurrage and Mileage
 Clerk 26.2024
 Smalarz, L. M. 8-29-45 Sr.Stat. Clerk 22.6624
 Ezrow, N. A. 12-11-47 Interchg. & Car Record Clk. 21.4824
 Gallagher, E. W. 11- 4-52 Jr. Stat. & Fgn. P/D Claim
 Clerk 22.4324
 Abood, D. E. 10- 1-57 DTSL P/D Claim Clerk 21.2524
                                                PL (3 Ilq


                              Award No. 6

                              (Case No. 5) Page 2


JURISDICTION:

 The jurisdiction of this Board is set forth in its Award No. 1. The statement of jurisdiction therein is incorporated herein by reference thereto.

 OPINION OF BOARD:

 On April 16, 1965, carrier addressed a letter to Clerks advising that it was proceeding with its previously announced plan to convert manual operation to electronic operation; whereupon Clerks in its letter dated April 19, 1965, raised objection and stated its position was "that proper notice must be given and if the parties fail to reach an implementing agree ment within the time limitation of such notices, the Carrier is prohibited from proceeding with changes." Carrier responded that the National Agreement of February 7, 1965, provides that notices are required only "whenever such intended change or changes are of such a nature as to require an implementing agreement as provided in Section 1;" and, further, the February 7, 1965 Agreement in this instance did not require an implementing agreement.

 Without an implementing agreement the Carrier, on Julv 30, 1965, placed into effect a technological change resulting in the loss of six clerical positions and also in a transfer of five positions from Detroit, Michigan, to Toledo, Ohio. This action by Carrier precipitated a work stoppage on
 August 1, 1965, which was terminated when the parties, on August 4, 1965,
 entered into an agreement which in pertinent part reads:
 "1. The Shore Line will file its submission with the Disputes
 Committee as provided in Article VII of said Mediation Agree
 ment."
 "5. Pending decision by said Disputes Committee, the perform
 ance of the work in question will be continued at Lang Yard,
 but employees affected by said transfer of work will forthwith
 be offered restoration to employment and continuation on the
 payroll at their former location or at such location as may
 be agreeable to the Shore Line and the particular employe, at
 a rate of pay no less than their pay prior to July 30, 1965.
 The decision of said Disputes Committee shall be final and
 indi5 ng upon the parties." /Emphasis supplied-7

                                                PL13 llq


                              Award No. 6

                              (Case No. 5) Page 3


Carrier complied with paragraph (1) of the Agreement; and, it is undisputed that the Claimants named in the Statement of Claim, supra, were, as stated in paragraph 5 of the Agreement "employees affected by said transfer of work."

 On November 24, 1965, the parties to the February 7, 1965 Agreement rendered various interpretations to that Agreement, some addressed to the requirement for entering into an implementing Agreement under Article III. Carrier's position is that those interpretations were dispositive of the dispute filed with the Disputes Committee pursuant to paragraph 1 of the August 4, 1965 Agreement. Predicated upon that position Carrier, on December 9, 1965, notified Clerks that the dispute submitted to the DisputesCommittee has been disposed of by such interpretations and that effective with completion of work December 31, 1965, all employes held in service by virtue of paragraph 5 of the August 4, 1965 Agreement would be released and could take whatever action was available to them under the Schedule Agreement. Clerks filed Claim that : (1) the interpretations rendered by the Disputes Committee did not decide the issue presented in Carrier's Submission to that Committee; (2) the August 4, 1965 Agreement remains effective until the Disputes Committee issues a "decision;" (3) "interpretations" relative to the February 7, 1965 Agreement are not "decisions;" (4) Carrier's action in terminating the application of paragraph 5 of the August 4, 1965 Agreement violated the prescriptions of that paragraph; (5) paragraph 5 of the August 4, 1965 Agreement continues in full force and effect until the Disputes Committee issues its decision in the particular dispute submitted to it; and (6) the employes named in the Statement of Claim, supra, who were adversely affected by Carrier's violation of the Agreement, are contractually entitled to be made whole and continue to enjoy the guarantees of the Agreement until its term, as prescribed in the Agreement, expires.

 The issue before this Board is whether the Disputes Committee issued a decision in the dispute submitted to it by Carrier in compliance with paragraph 1 of the August 4, 1965 Agreement. If it did the Claim before us must be denied. If it had not Claimants continue under the contractual guarantee of "continuation on the payroll at their former location or at such location as may be agreeable to the Shore Line and the particular employe" until the Disputes Committee does render its decision.

 Carrier moves that we dismiss the Claim on the grounds that we have no jurisdiction to interpret and apply the National Agreement of February 7, 1965, the parties having created a forum in which to resolve disputes arising out of that Agreement. Resolution of the Claim before us concerns only application and interpretation of the August 4, 1965 Agreement over which our jurisdiction is founded in Section 3, First (i) of the Railway Labor Act. Therefore, we have no need to pass upon whether this Board has - jurisdiction to interpret and apply the National Agreement; but, we will look to it as an aid in determining whether the Disputes Committee has
 rendered a decision. Carrier's motion is DENIED.

                                                PL 6 1 ra


                            Award No. 6

                            (Case No. 5) Page 4


    We come now to resolution of the issue before us.


The distinction between an "interpretation" and a "decision" is elementary. An "interpretation" is merely an expression of opinion. A "decision" is the settling or termination of a particular dispute by judicial or quasi-judicial determination by a person or forum having jurisdiction. A "decision" has a dignity and finality and establishes legal rights which do not attach to an expression. This distinction, alone, compels us to conclude that the Disputes Committee did not render a "decision."

 Further evidence that the Disputes Committee did not issue a decision on the issue presented to it is found in Article VII = Disputes Committee - Section 1 of the February 7, 1965 National Agreement which reads:

    "Any dispute involving the interpretation or application of any of the terms of this agreement and not settled on the carrier may be referred by either party to the dispute for decision to a committee consisting of two members of the Carriers' Conference Committees signatory to this agreement, two members of the Employees' National Conference Committee signatory to this agreement, and a referee to be selected as hereinafter provided. The referee selected shall preside at the meetings of the committee and act as chairman of the committee. A majority vote of the partisan members of the committee shall be necessary to decide a dispute, provided that if such partisan members are unable to reach a decision, the dispute shall be decided by the referee. Decisions so arrived at shall be final and binding upon the parties to the dispute." /Emphasis supplied .7


This Article, which is referred to in paragraph 1 of the August 4, 1965, Agreement, prescribes the procedural due process that the Disputes Committee is contractually bound to satisfy in the process of reaching a "decision" on a dispute "not settled on the property." No carrier or organization party to a dispute can be denied, without waiver, Disputes Committee adherence to this Article in reaching a "decision." In the instant case Clerks have not waived the contractual due process.

 We find that: (1) the August 4, 1965 Agreement between the parties herein remains in full force and effect until the Disputes Committee, created under the February 7, 1965 National Agreement, renders a "decision" on the dispute submitted to it; (2) the Disputes Committee has not rendered a "decision;" (3) Claimants were and are unqualifiedly entitled to "continuation on the payroll at their former location or at such location as may be agreeable to the Shore Line and the particular employe, at a rateof pay no less than their pay prior to July 30, 1965," pending decision by the Disputes Committee. We will sustain the Claim.
 Award No. 6
 (Case No. 5)

 Page 5

 This opinion is not to be construed as a holding that parties to an agreement may not agree upon the meaning of its provisions and application. Such a procedure is legally sound and is to be encouraged in the attainment of good faith collective bargaining. However, in the case before us the parties to the formulation of the "interpretations" are in disagreement as to whether the "interpretations" encompassed the dispute submitted in compliance with paragraph 1 of the August 4, 1965 Agreement. Carrier had the burden of proving its affirmative defense that the "interpretations" were of the force and effect of a "decision." It failed to satisfy the burden.

 FINDINGS:

 Public Law Board No. 119, upon the whole record and all the evidence, finds and holds:

        1. That Carrier and Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;


        2. That this Board has jurisdiction over the dispute involved herein; and,


3. That Carrier violated the Agreement.

 AWARD
    Claim sustained.


ORDER

 Carrier is hereby ordered to make effec ' Award No. 6, supra made
 by Public Law Board No. 119, on or before

                                        l


in H sey, has man

 D. G. Vane, Carrier Mem er
 iSSrNT

 Neutral Members

 Dated at Detroit, Michigan, the ~~day of

 .ef, E ploye Member
                      BEFORE AWARD NO. 6

                      PUBLIC LAW BOARD NO. 119 (Case No. 5)


BROTHERHOOD OF RAIL7AY, AIRJ I:dE AND STEA2iSHIP CLERKS,

FREIGHT HANDLERS, EPRLSS AND STATION E_JPLOYES


                                and


            THE DETROIT AND TOLEDO SHORE LINE RAILROAD CO:IPANY


                        INTERPRETATIO:; ::0. 1


JURISDICTION: _ ~.

      The Agreement between the parties;-dated November 14, 1967, provides,

inter alias -

      "(10) ... In case a dispute arises involving the interpretation of an award, the Board, upon recuest of either Darty, will convene and interpret the award in tie light of tie dispute."


Under date of 2ari1 19, 19'08, Carrier De titioned the Board to reconvene for the purpose of interoretaticn of its A%ards 1, 2, 4 and 6. A copy of the z)etition is attached hereto and made part hereof. The Board was convened and the ~art_es were afforded full o.-Dortunity to argue tineir respective =osltlons relative to the C_UeSt4one ^resented. Questions 1, 2, 3, 4, and 5, it was stipulated at the hearing, are in issue relative to AIIARD \O. 6 (Case No. 5).

 INTERP'tETA=T_0:,;S
                      A. Questions 1, 4 and 5


These questions are answered in our Interpretation No. 1, A^lARD NO. 1 (Case No. 1) which is incorporated herein by reference thereto.

                      B. Question 2


Question: "Is the Carrier obligated to compensate a claimant during any period in which the claimant was voluntarily absent from duty?"

                          Answer: :40.

                                                PLQ !!cf


                        INTERPRETATION \0. 1 3-


                            (Casa i;o. 5)


                      C. Question 3 --


Question: "Does a voluntary resignation of seniority rights terminate the Carrier's liability?"

 Discussion: In the case presented the employe voluntarily transferred - from the collective bargaining unit covered by the Clerk's agreement to another craft or class represent--.-:d b·: another organization. The a_uestion is anso:ered in the light of those fact.

                          Answer: YES.


                                      r


                  Tr'Jonn H. Dorsav, ,_==-is

                          Neutral =Iember


      Lh i

y
 D. G. .Vane, Carrier _Ilemner C. E. i<ief , /E:m.)love _·iember

                                  l

Dated at Chicago, Illinois, this day of /~'y , 1668.

BE:=

PUBLIC LA:l BOARD NO. 119


3ROTHERHCOD OF^.IL`.~AY, AIRLINE AND STEAMSHIP CL.--R:<S

FREIGHT HANDLERS, E`hPR'_~SS AND STATION EMPLOYES


                      and


THE DETROIT AND TOLEDO SHORE LINE, RAILROAD COMPANY

              INTERPRETATION NO. 2


Award in this case, .Sustaining -the claim, issue-d ia~ 2, 190'8. The Agreement between the parties establishing this Board-, dated Novesaber 14, 1967, provides, inter alia:

      11(10) In case a G15--)ute arises involving the

      interpretation of ail award, the Board, upon reccuest -

      of either part-! will convene and interpret the a'eard_

      in the light of the dispute."


Upon petition of Carrier; dated April 19, 1968, tha lcc-rd - . issued Interpretation 10. _ of Award on Day 27, 1968. L. at interpretation we held: (1) Claimant had an obligacion -to ' iaitigate damages; and (2) Carrier 'lad the right to
 reC_i:._..,_ Claimant to supply information that she had reasonably sou~'at amployment, of like din _t;1 to that which, she enjoye~ ,:.___~. e=mployed by Carrier, during referred to periods in ,.e. C~i :ion :·!:1en sine was not working :`or Ca -_rler and during wficn .; -~ would have worked for Carzier absent Car'rier's viclativ^^':: o:: '~._C: Agree-men t.

      Subsequently, Carrier refused to:


      "Compensate /Cia1-an''7 fo'= the period starting

      July 14, 1966, to August 10, 1967, alleging that

      during this period s:1C made no attempt whatsoever

      to find other employ" ".en'-- and, therefore, did not

      mace a reasonable attempt to mitigate the damages

      due."

PLQ s/9
              F.:~aYd :vo. 0

              \W JE 1:0. JN?pCC

              1ntelv~L~C.~1v~_ No. 2


      Under date O° Decer~-_er 2, 1968, Clerks petitic-n.- 'i.C

..-Cer~r~t l: he Award - - Cl-rk- a-Cjuing that Ciall;ta-- 1':;:4 x.-~C
 raasO-able efforts durl:=g :::7e-inV01Vc-.Q period to ODtnn=it
 ai-ployment through .::i~ 2a--'_road .ReL_reaent Board and by
 application for emplor:en'Z to, at 'Least, two railroads.

      On February 21, 1909: =he Board met in Executive Session,

in Chicago, Iilin015; tG- Consider fierks'
 petltion for _.1 tation and the answer o2 Carrier thereto. The Board decided:
 ~1.) it had jurisdiCLion u= the s:Abject 'clatter', (2) zhe
 averments as t0 Claimant's efforts t0 reasonably obtain emp=Oy
 L:eat during the periods =- Vo1VCd did not satisfy her Obligation-
 to mitigate damages; and';3; granted Clerks a reasonable tme
 in whit n to adduce aCQi'G-v nai evide n.=a that Clali:ant .:aa i:.ad°
 reasonable efforts to seer-e:;ploy.:~ent.

      Subsequent to Februar-- 21, 1965, Clerks not having su-~nlied

additional evidence in s;:;-D;'..Jrt of its 1_pOSi..lOi1, Carrier, did C^
 :iDrii 17, 1969, move that '`~ -.oard sustain Carrier's :;G:~=~.~Cn^. ,:at Claimant had not _,:l__~_ed- Er legal obligatl0: Z.0 _..i'~iC';ac da=mages in the period ~.=:v J-Vt=:~.; a nQ, consequently, unC.Er .:._a .:.ake whole theory the rP:·;.-. . C,~_C :'-^v'.. O'..Jilgdt2 Carrier ',:^v cO::pensate her for wages. lost during that period. T.le -.J-:l.G-_
 SL-ly
 cT -
 .,_AIJ:ED . -

          /J Oh"i' :=. DJ-'_:.=«, C.^_dirllan .

          Neutral. 2,:e:ab.r

          i '


J. G. Vane, Carrier i·1e:ber C. E. Kief, ·Empl eye ._ cr
 ,l
 'w
 Dated at Chicago, Illinois,-t:,_s day of may, 1909.