Public Law Board No. 3450
PARTIES Brotherhood of Maintenance of Way Employes
DISPUTE: and
Delaware and Hudson Railway Company
STATEMENT Carrier has failed to pay in full the wage and
CLAM: cost of living increases prescribed by the June 17,
1982 Agreement and should be ordered to make immed
iate payment thereof with seven percent interest
from the dates they became due.
FINDINGS: This dispute concerns the interpretation and ap
plication of the so-called wage deferral provision
of the parties' June 17, 1982 Agreement. That
Agreement went into effect on January 2, .982 and
settled Section 6 Notices that had been served by
each of the parties upon the other. A stated ob
jective of the Agreement is to provide:
"for the deferral of certain wage in=
creases, without reduction in current
rates of pay as a means of enhancing
the prospects of the DAH to become
self-sustaining. To accomplish this
objective, D&H agrees to adopt and
apply the terms of the National Agree
` '--. ment reached between the National Car
', rier's Conference Committee and the
Brotherhood of Maintenance of Way
Employes." subject to certain limitations.
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The most important of the "limitations" referred
to in the language Just quoted are set forth in Section A 1(a),
(b) and (c) of that Agreement. These provisions read as follows:
1. (a) Increases in rates of pay,
including cost of living adjustments
(hereinafter collectively referred
to as "rates of pay"), provided for
by the National Agreement to be made
effective on or before December 31,
1981, shall be made effective for the
Organization on the respective dates
set forth in the National Agreement
to the extent the sum of such increases
exceeds 10%.
(b) Increases in rates of pay provided
for by the National Agreement to be
made effective on or after January 1,
1982 shall be made effective for the
Organization on the respective dates
set.forth in the National Agreement
to the extent the sum of such increases,
combined with the sum of the increases
in rates of pay provided for by the Na
tional Agreement for 1981 and referred
to in subparagraph (a), exceeds 12%.
(c) For the purposes-of this Agreement,
each "increase," including each cost of
living adjustment, shall be computed as
a percentage increase over the rate of
pay existing immediately prior to the
increase.
Accordingly, the parties have incorporated the
terms of the National Agreement into their Agreement of June 17,
1982, but have agreed that wage increases provided in the National
Agreement be deferred under Section A 1(b) until such time as they
exceed twelve percent. Section A 1(a)'s provisions do not come
into play in this case since wage increasds were not sufficient
as of December 31, 1981, to reach the prescribed ten percent lever
(that is not to say that the language used in Section A 1(a) may
not be helpful in determining the intent of the parties).
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Case No. 1
Increases under the National Agreement are applied
either to the basic rate or to the COLA. Increases to the basic
rate are expressed in percentages while increases to COLA are expressed in cents.
Under the National Agreement, the following increases became effective during the period under consideration.
Effective Date Amount of Increase Type of Increase
April 1, 1981 2% General Wage Increase
July 1, 1981 $.32 COLA
October 1, 1981 3% General Wage Increase
January 1, 1982 $.35 OOLA
July 1, 1982 3% General Wage Increase
July 1, 1982 $.22 COLA
January 1, 1983 $.34 COLA
July 1, 1983 3% General Wage Increase
At the time they entered into their Agreement of
June 17, 1982, the parties were aware of all the above increases
up to and including July 1, 1982; the cost of living adjustment of
July 1, 1982 was based on the March 1982 Consumer Price Index.
The parties agree that the 12% figure mentioned in
Section A 1(b) had been attained at some point within the January 1,
1982 cost of living adjustment. However, they are not in accord
as to the method of computing the 12% total or the precise point
within the 35 cent adjustment that that total was reached.
Petitioner would compute the 12% "trigger" by (1)
applying the general wage increases of April i and October 1, 1981
to the basic rate, (2) applying the cents per hour COLA to the total
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Case No. 1
rate of pay (including basic rate and cost of living) and converting it to a percentage of that total rate and (3) adding all the
percentages by the compounding method.
It is Carrier's view that the contracting parties
never intended that the compounding method be used and that Petitioner's computing formula is not supported by evidence. Moreover,
Carrier contends, that the proper way to compute the 12% figure
is to determine the general wage increases percentages to be added
by applying those increases to the rate of pay that includes COLA;
by so doing, the April 1, 1981 increase would be added as 1.87% and
not 2% in computing the 12% figure, while the October 1, 1981 increase of 3% would be added as 2.8625%. Carrier urges that Petitioner's method fails to comply with Section A 1(c) and that it
cannot validly compute wage increase percentages on the basic rate
while determining COLA percentages on the rate that includes both
COLA and the wage increase.
It is undisputed. that both general wage increases
and cost of living adjustments are to be counted in computing the
12% wage deferral. Neither the record nor any applicable agreement
or practice to which we have been referred provides any basis for
counting the April 1, 1981, and October 1, 1981, general wage increases as less than, respectively, 2% and 3%, in computing that
12% figure. The fact that the COLA percentage is determined in
a different fashion does not call for a contrary result; COLA
and general wage increases are not treated alike in the National Agreement. No valid ground is perceived for concluding
that it *as the parties' intent to count the general wage in-
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Case No. 1
crease percentages as anything less than the percentages provided
for in the National Agreement. We find no merit in Carrier's argument to the contrary.
As to whether the 12Z is to be calculated by the
simple addition of the percentages, as is urged by Carrier, or by
compounding them, the Agreement is silent. We are not at liberty
to consider evidence submitted by Carrier after the hearings were
concluded. Nor, as Carrier maintains, are Petitioner's bare assumptions and contentions that compounding is the proper method entitled
to weight. Petitioner's case must be supported by competent evidence
and more argument and assumption, no matter how strongly made, are
not the equivalent of proof.
It nevertheless is our conclusion, after anityzing
the record in its entirety, that the proper way of calculating the
12% figure is by using the compounding method in adding the increase
percentages. This conclusion is realis-tical.y inescapable since the
wage rates of employes would have been compounded by each new increase, but for the deferral. As Section A l(c) provides, each
increase "shall be computed as a percentage increase over the rate
of pay existing immediately prior to the increase." Only through
the compounding method, can the loss to the employe and thus his
wage deferral, be appreciated and calculated.
Accordingly, it is this Board's conclusion that
Petitioner's method of computing the 12t figure mentioned in Section A 1(b) is correct and that Carrier should pay all wage increases
and cost of living adjustments after that 12% leve~is attained.
The 12% figure is readily ascertainable by the addition, on a
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compounding basis, of the April 1 and October 1 general wage increase in 1981 and the COLAs of July 1, 1981 and January 1, 1982.
Once the 12% "trigger" point was reached, the employes were entitled to the full increases in the amounts and on
the dates prescribed-by the National Agreement. There is no sound
basis for reducing those increases to any extent. Neither expressly
nor by fair implication does the. Agreement require that a 12% wage
differential exist throughout its duration between Carrier's rates
and those that would have been in effect bad there beer. no wage
differential. The wage increases, including COLAs, were merely deferred until the 12% level was attained.
Petitioner also maintains that Carrier failed to
pay the July 1, 1982 increases until August 1, 1982. At the hearing, it appeared that the increases were in fact due, but had not
been paid until August 1, 1982, due to financial problems. This
Board lacks authority to delay or modify wage payments because of
financial or equitable considerations. Increases must be paid on
their effective dates.
Petitioner's request for seven percent interest
will be denied. The Agreement does not provide for such interest
and the record does not establish that the issues in this case were
not raised in good faith and in an effort to explore and interpret
the Agreement. This conclusion does not prejudice Petitioner's
right to seek interest at-the prevailing rate if this Award is not
complied with in a timely manner.
AWARD: 1. In determining the 12% threshold mentioned
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in Section A 1(b) of the June 17, 1982 Agreement, (a) all pay
increase percentages, including cost of living adjustments.shalt
be added by compounding and (b) the general wage increase figures
shall be the identical percentage figures mentioned in the National
Agreement.
2. A 12% wage differential between Carrier's
wage rates and those that would have been received but for the
deferral is not frozen and in force throughout the life of the
June 17, 1982 Agreement. Once the 12% level is attained, the employes in question are entitled to all subsequent increases in full
and no later than the effective date of such increases.
3.
To
The claim for 7% interest is denied.
be effective within 30 days.
Adopted at Albany, New York on January
Carrier Member
1984.
Employe Member