PARTIES UNIT= TRANSPORTATION UNION
 TO 1
 OI5PL= ) CSX TRANSPORTATION, INC. (FORMER WESTERN MARYLAND RR)
STAB OF IM


UINNUIs

The Board, after hearing upon the whole record and ail the evidence. finds that =he parties here--n are Carrier and Employee within the meaning of the Railway Labor Act. as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due tocice of hearing thereon. A third panty in interest notice was given to the General Committee of Adjustment (GCA1 of the United Transportation Union (UTU) for employees which it represents on the former saltinoxe & Ohio System t8&O) of CSX Transportation. Inc. (Carrier). The GCA for the H&O filed a written statement an the issue in dispute, and thereafter participated in hearings before the Hoard.


The question at issue calls for a determination as to whether engineers on the former western Maryland Railroad ('KM) property of the Carrier !represented by the GCA of the C)TU party to this dispura! are entitled to a pay differential when they work with a e&0 ground crew within ::e meaning and intent of Side Letter #12 of the November 1. 1991 UZU National Agreement.


Side Letter #12 was included in the 1991 UTU National Agreement as one of several implementing documents related to the adoption of the Report and Recommendations of Presidential Emergency Board No. 2=9 (PF_8 No. 219). This Letter makes provision for a special pay differential for "eligible" engineers when working without a fireman and, in addition. working with ground crew members who receive produativicy funds as "crew consist protected trainmen.." Entitlement to the special pay differential differs fo; work performed prior to as opposed to on and after November 1, 1994.





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                                            AWARD N0. 9 CASE NO. 9


          recognized or has beers certified by the Rstxoaal Mediation Board as the authorised bargaining representative far the engineer craft, as set forth below:


          SHCj_0U I Z_ Payment


          (a) Effective auly 29, 7.991, a differential of S12-00

          per basic day 7..a freight and yard service, and 12 cents

          per mile for miles in excess o£ the number of miles en-

          compassed in the basic day 7..n freight Service. wilt be payable to eligible engineers working aasiyamenes without a fireman provided the conditions described below are met.


          (b) Effsotive januaxy 1, 1995 such differential will be increased to $13.00 per basic day, and to 1$ cents per male for miles 7.5 excess of the number of miles encompassed in the basic day.


            S eSSAoa


            (a) Under the applicable agreement governing the consist of train crews:


                (7.S a meaber of the train crew 7.e cutitled to receive a pzoductivity fund, or per-trip paymeat in lieu thereof. and


                (ii) the carrier is required to make a productivity zuad payment for that trip or tour of duty.


            (b) The engineer uuet have-


                W an engineer's seniority date no later than the date that determines eligibility for "protected employees" receiving productivity fund payments 7..n that territory, or


                (ii) been a "protected employeeO under a crew consist agreement. and wets subsequently promoted to engineer on the same railroad.


            goation 3


            PrLor to November i, 1994. the special pay differential will continue to be paid to otherwise eligible aagiucers, notwithstanding the provisions of any agree mCUf. any carrier may enter i=to apbsequent to the data of this letter to eliminate productivity Funds far crew consist prexeatad cxa=^=en purauan.n to a crew consist

' agrtemeat or to substitute °up-front" allawancea n lieu
            thereof. On or after November 1, 1994, engineers will


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      L S /J a - 5'j AWARD NO. 9

      CASE NQ. 9


'- be eligible for the special pay difterantial only i£
            they meet the conditions oar forth in Section a above.


            seat' on, ,4


            This Side Letter is nor applicable on a carrier that has as agreemant ...


        material to a consideration of the issue here in dispute is the -fact that on .Tune 2, 1993 the Carrier and. its employees represented by the vTff an the former ew/H&OCT significantly changed the then existing crew consist agreement so as to permit a reduction of train crew members to one cnnductor. The agreement is commonly known as "The Conductor-Only Agreement."


        Attachsttent 1 to the C=ductor-Only Agreement is entitled: ';Signing Bonus and Special Allowance/Productivity Fund Buy Out. It it provides, in Paragraph "A", that all protected employees receive a signi-n.9 barsus of $23,000. This signing bonus "tray be taken as a lump sum cash payment or diverted in three installments to the Employee's 4oltk) account for calendar years 1993, 1994, and 1995."


        Attachment i further provides, in Paragraph "8", that a protected employee "may elect to buy out his Special Allowance and his

--. share of the Productivity Fund" u.zder a schedule of payments,
        This schedule of payments calls for a $20,000 allowance tq be

        paid upon selecting the buy-out option, and with a "cash balance

        pension, plan" established under the Employee Retirement Income

        Security Act of 1974 (ERISA) so as to provide each participating

        employee with certain vested amounts of money, based upon years

        of train 4q.rviGP, and to be pain upa.a Lnrmination of employment

        as a result of retirement ox otherwise. The vested amounts shown

        on the schedule range from $6,524.oa for one year t4 5163.1oo.o0

        for 25 years of service.


          Paragraph "g" of Attachment 1 further reads in part as follows:


                  (31 Cal The speeiLal Allawauce and credit £or ahArea of the ProdactivLty Fund wi17. cease for those employees electing the buy-oui option =PC= implementation o$ the Rule- The $20,000 allowance shall be paid within thirty days of implementxtioa of the RSile.


                  <b) Vpam implementation of this Rule] Productivity FVnd 6641 will be closed. The conies is Fund 6601 will be held for di$tribution u=· der exiati_ag agreement provisions. A new frcduct'L.vity Pund 6607 (a) will be established for tie remainder of the 1992/1993 Eigcal year. with dLstsibutioa governed by the provi a:Loris of section 14 of csrT Labor Agreement 4-


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. PLC's- 5'13'7 NWARZ NO. 9
                                              CASE N0. 9


'" 069-93 .

                (4) (a) oa the effootive data o£ the Mule, the Carrier's contribueio=s under geetian 14 - PrnAuetivity iron,. will lie redueac Ay the Vercentage of the. eligible esiployaes electing to buy out their share of the Productivity Fund. For example, if 80% of the eligible employees buy cat lafl the fund. Che S48-25 will be reduced to $9.65.


                The following formula will be used to calculate the adjusted caatribution: _ . .


        It is unquestioned that the vast majority of 2&O/B&,OCT praxec=ed employees elected to buy out their shares of the sgroduccivicy 'und and thus their rights to the crew consist special Allowance.


        It is the position of the Carrier thaLL U_a i~enauctor-only Agreement coasticlaces an action contemplated within the meaning and intent of Section 3 of Side Letter #12 to the 1991 = National Agreement. That is, an agreement made subsequent to the November 1, 1991 JT'U National Agreement to "eliminate" ox buy out the productivity fund.


--- The Carrier thus contends that it was only obliged by section 3
          of Side :.enter #12 to have cancinued its payment of the qpecial

          differential until November 1. 1994. It says this on the basis

          of that language of Saari= 3 which pravidea such pay differen

          tial continue to November 1, 7.994 -notwithstanding the provisions

          of any agreement .._ subsequent to the date of this [side] latter

          (November 1. 19911 to eliminate productivity funds for crew con

          sist protected trax_men or to substixute 'up-front' allowances in

          Lieu thereof."


          At the same time, the Carrier says chat pursuant to the remaining provisions of Section 3 of Side Letter #12 that it ceased payment of the saecial differential on or after November 1, 1994 on the basis that the June 2, 1992 Conductor-Only Agreement eliminated =he payment of productivity funds to ground service crews and that such action, in turn, resulted in engineers not meeting the conditions set forth in Section 2 of Side Letter #12 so as ta.be eligible for tt1e special differential.


          The carrier therefore says that it made a proper dett=minari.on to

          cq.aZe payment mf the spa"al pay nrtterential to 8&n Engineers

          who worked with SW train crews that had elected to buy-out their Productivity Fund and short crew Allowance, and, ss concerns the dispute here at issue, cc likewise cease such payment ca wbi Engineers who worked with a&o ground service crew members who had elected to buy-out `heir shares of the Productivity Fund and their rights to the short Crew Allowance.


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PLO /)D. `j~ HWJ4~1J NU . `!
 CASE NQ. s
the Brotherhood of Locomotive Engineers (9LE). Side Letter #8 of the ELF National Agreement is identical to the language contained in side Letter #12 of the 1991 U3-u National Agreement.

 In this respect. it is worthy of note that the BIZ made the following request -!or interpretation to the Special Board-

        M Zemunet No. 11


        Did the PEB intend that a Carrier would be obligated to continue asking the required payments to its engineers, oven if the Carrier agreed to "buy cut" its train, serviea crew members, right to receive future payme=nts foam "productivity fund"°


    In argument involving the above request, the oLE related to Special Board tie. ;.02-29 that during bargaining and mediation sessions after 9EH uo. 219 had issued ins Report and Recommendations that "the Ca=rriers adamanaly insisted upon an linteraretation· Off the FES Report that would ... allow the Carriers to immediately and permanently evade their entire obligation to make per-trip payments to engineers through the expedient of `buying-out, their crew-censist agreements with train serrice employees.,, The aLE said that under such a buy-out scheme, the Carriers would make a large lump sum payment ($50.000, S7B.000, or more) to each train service employee covered by existing crew consist agreements in consideration for which the Carriers would obtain the right forever to cease making payments no any "productivity fund." In concluding its statement to the Special Board the H'LE said --


        TA awe, the ELE submits that the FES clearly intended to require the Carriers to continue their per-trip payments to eligible engineers, even if the Carriers were successful is their efforts to "buy-out" the existing "productivity fuade" by making alternative financial or other arraagemsnta with the affected tn*imteA. We uz,te the Special board to clarity that this wan, in fact, the intention o4 the p£8.


    In response to the above clarification request. Special Board No. 102-2J ruled:


        ITO. The P£t intended that the -one anz--rion employees would reosive equalization paymeata only as long as productivity fund payments were made to traiLa aervicG fmployeee.


      Section 3 of Side Letter #12 is also significant in that it prescribes that subsequent to November 1, 1994 engineers will be eligible for the special pay differential only "if" they meet the eeaditionx which the pa=tes set forth in Section 2 of Side Letter #12. These 3ointly related conditions are that: (1) a member of the train crew is entitled to receive a productivity fund:


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                                          ~C (.~ N a . 5 '13 AWAM No . 9 CASE N0. 9


and, (2) the carrier -s required to make a productivity fund pay ment for chat trip or tour of duty.

 :n the case befere us, no mro ground crew member is shown to have -eceived or been entitled to "a productivity fund or per trip payment" because, as indicated above, such payment ceased td be made after they elected the Special Allowance/ Productivity Fund 3uy Out.

    n the light of the above considerations and study of the rather extencive arqumeats ef ..the -g.:.~^taco- :.tea ~oru^d f.ads--C.i~at -5:-xY aineers are not entitled to the continued payment of the SIS.04 special pay differential provided for in Side Letter #12 which attached to the November 1, 1991 T.1TU National Agreement when working with a 8&O Ground Service Crew that had elected, purstaaat to the provisions of Attachment I of the June 2, 1993 Conductortnly Agreement, to buy 13nt-his or her Special Allowance and his or her share of the Productivity Fund.


    wW ARD -


    The claim o= question at issue 19 answered in the negative.


                  Rdbert~E. Peterson, Chairman

                      and Neutral Member


        Ear F. Norton, .7r Ro rt ,?. will

        Carrier Member Organization Member

        v


    ,Tacksonvtlle, FL Mayas , 1996


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