IfiT2()TI3ERHOC)Tt OFit'1,hhXI'ENANCE, OF

WAY EMPLOYEES (BNIW)

1

NATIONAL CARRIERS' CONFERENCE

CO111VUITTL~',

and

UNION PACIFIC RAILROAD COMPANA'

(UP)

Chicago, Illinois

QUESTION AT ISSUE:

Did the; Carrier violate the provisions of the February 7, 1965 Agreement in Mediation Case No. A-7128» as amended by Article XI1 of the September 26. 1996 Agreement in Mediation Case No, A- I 2718 when it deducted fra:n Claimants' Protective payments amounts equal to claims payments they received in connection uith negotiated settlement a' a collective bargaining ageeent claim involving loss of ~vark Opportunities? I. LIND IN G S
T fcyn the whole retard end ill the evidence, the Board finds that the parties herein are Carrier and Fmplayces within the meaning of the FZailu-ay La6ar Act. as amended, and that this Board is duly constituted by agreement am has jurisdiction afthc parties and csf'the subject matter. .4t the neutral's request. the parties vvnivecl the Article III. Section I? thirty-day limitation fcr Issuing dais decision.

BACKGROUND FACTS

Claimants R. Moreno, I7. Boslau, D. [lector and f. Ilughes are certified for protective benefts under Article I Section 1 «f the February ;". 1965 Agreement, as amended. Claimants all received. Feb. 7 protective payments front the Carrier for the dates August ? I-24. and 3 i . and September 5> 7 and I I , 2000 because. they were in furlough status with rights to recall under the applicable working agreement. On October 2, 2000, the Organization submitted a claim an behalf of the Claimants alleOn- that Carrier violated the UWBMWE collective bargaining agreement u:hen it utilised NorthAvestern District Steel Erection employees to perform carpenter work reserved to the Claimants. Fhe Carrier denied the claim on Nbvember 27, ~Qt0. The matter proceeded can the property until a settlement was reached in conl`erence on August 8. 2001. Each Claimant wai allowed forty (40) hours at the su~aight tine rate oft pay for Auaust 1 I. 2?. ?3 and 24. ?000. However, the Carrier ad=iced the Or-aniraticn that the payments would he used to offset Article I. Section I protective allowances previously paid to the Claimants !or the month of August 2titf0. 'I'he Organization disagreed dcrith the Carrier's use of time claim settlements as offsets tee the Feb. 7 payments. An understanding was reached to alloki the t: rgization to refer the matter directly to this Board. Ill. P'RTINIT AGREEMENT PROVISIONS

The February 7, I96i Mediation Agreement, as amended by Article :III of the September ..'.6, 1996 Mediation Agreement

Article IV, Section l : Subject to the prat isions of Section 3 of this .rtic?e tV. rotected ernpiovees who hold regularly assigned positions shall riot he placed ire a N%c>rse position w=ith respect to compensation than the normal rate of compensation for said regularly assigned position as of the date they hecom:

protected; provided. however, that in addition thereto such compensation shall be adjusted to include subsequent wage increasses.

Article IV, section -5: A protected employee shrill not lx. entitled to the benefits of this ,article during any period in which he fails to work due to disability. discipline, ?cave of absence. military service, or other absence from the carrier`s service or during arty period in. which he occupies a position trot subject to the tort-ing agreement; nor shall a protected employee be entitled to the benefit of dais Article IV during any period when furloughed because of reduction in force resultint, from seasonal requirements (including lad-cuffs during Miners' Holiday and the Christmas Season) err because of reductions in force pursuant to Article. I. Sections 3 car 4 provided, lrmu~ever. that employees furloughed due to seasonal requirements shall not be furloughed in any 12-month period for a greater period than they sere furlong hed during the 1? months preceding the state of this agreement.

IV. CONTENTIONS OF THE PARTIES

The Organization

The OrLyanizatiun contends that Carrier did not have the right under the Feb. 7

~greement to utilize the settlement of 'lairrxants` collective bargaining agreement clai

«s a basis upon which tee recoup protective benefit payments previously made to them.

(here ; re no provisions in the Feb, 7 Agreement permitting the Carrier to recoup

payments under these circumstances. the Or anization points out. :.rod the Board does not

Itav°r,: the autbority to fashion a doctrine of "equitable recoupment: ` notwithstandin, the

Carrier's contention to the contrary. 1`herefore. the claim must he .sustained.

The Carrier

The t=arricr argues that it properly adJusted the August 2000 protection

allowances of the Claimants to refect straight-tune compenswion Haiti to then- as a result

of a claim settlement. Article IV. Section I of the Feb, 7 A">reemcnt clearly indicates that

-in entt?ltr c-a is not to he placed in a wore position with regard to compensation. Such

Fanguatc corttemPlates brat an enrrlo-,,ce is provided a safwt- net n protective

3

compensation. It is not intended to allow an employee to enrich himself through the use of this protection, the Carrier submits.
In this case. Claimants have received a protective allowance and no"= the Organization is attempting to create ,in economic windfall for thorn. Such a result is not warranted under the Feb. ? ALreement. In the Carrier's view°, had the Claimants performed the work at issue, their straight tune earnings c=ould hav=e been used as <m offset in the calculation of protection due for the month. The nacre fact that they essentially received their straight time earrings as a result of a claim settlement should riot change that basic: Fact, Carrier asserts. Thus. Carrier was correct in of`f'setting the tine claim payments against the protective payments Claimants received. 'The claim should

be d=enied.

V. DISCUSSION

At issue in this case is whether the Carrier was permitted under the Feb. 7

Agreement, as amended. to use titue claim settlement payments as nrotccctive bettefts paid to the Claimants in August 2000.

The Board Finds that C'arrier's reliance oft Article IV. Section 1 is misplaced. That provision, set forth in full above, refers to the compensation guaranteed tinder the Feb. 7 A_, eenient. It sets forth tire promise that protects emplovees from being placed in a "worse position" with respect to compensation brut it does n«t address the circumstances under which a protected ;:mployec becorncs inelittible tar the protectiv=e parents afforded under the Feb. 7 Agreement.
It is Article IV. Section 5 of the Feb. 7 Agreement that -o),ergs the outcome in this casse. I'l-tat provision lists with particularity the events which cause a protected
employee to lose his entitlement to the benefts afforded in the Agreement. A careful review of that provision clearly shows that settlement of a claim under a collective agreement independent of the Feb. 7 Agreement is not one: of the specific items listed.

This conclusion is supported by the veil-established common sense canon of

contract construction known as "expressio unlus est exclusion alterzus" -- the mention
of one thing= implies the exclusion ofanother. Applying tire rule in this context, it is clear
that the parties explicitly limited the application of Article IV, Section 5 to tire specific
tactual situations set forth therein. They did not include any general or inclusive terms
Lvirich u:-ould permit a blanket application of the provision. Thus, the inclusion of
particular circumstances in which employees can have their protective benefits deducted
or offset necessarily means that the parties puroscfully otmtted other potential
circumstances, including the rune at issue in this case. We must conclude drat the parties
yiid not II shat aprotected crrtloieerttld become inclitur!ible trtr benefits based cart a
Claim settlement uxrder a collectite bargaitrinE; ate; enrent ctr presumably the parties
would have included that circumstance in Article IV, Section 5. .
The appfcation of this logic is strengthened by arb;tral precedent. In So~neial ~c~ard «t Adjustment 605, Award No- 51 the em under the February ? Actreernent. could not hold a position in his craft throuwrh the exercise of Iris seniority. Ile obtained ;r position in a craft represented by a union not vignato to the Feb, l A-reertrent. Carrier refused to pay tire crttplovuc tire protec ire beneL>t allow°ance, arguing that it bad satisfied its obligations under l'cb, 7 because the ernp;o%ee had been compensated <rt air amount equal to or in excess of hisuara_rteecl rate. l;r sustainin_ tl;e claitn~ the Board sated:
...,here is no qualification under the terms of the February 7 Agreement - whether the employee is compensated by the Carrier under a dferent bargaining agreement, receives compensation as a result of employment outside the industry. or even receives compensation under the terms of an insurance policy. As such the protected employee is entitled to compensation under the February 7

Agreement witoui

Subsequent cases have applied this reasoning in other contexts, with similar results. In Sp ecial Board oh Adfustment 6fl5. Award No. 1 83* compensation earned by a protected employee while working the carricr"s private dining car could not he deducted from his protected compensation. Likewise. in eeial Board (f--Adjustment 605. Award No. 3 164 outside earnings could not be deducted from protective payments. :n view of the iorcuoina?, wt find that there is no contractual support for the f'urrier's recoupment c>f'protective payments prev=ic>uslv made to the Claimants. (n so finding. we are cognizant of Carrier's contention that an economic windfall Rill he the result. However. the Board's authority is confined to interpreting tend applying the terms of the Feb. 7 Agreement to the claim at hand. We cannot rewrite the agreement on the basis that it would be niore equitable. Since the settlement of a dtal;ctis a bargaining agreement claim is nut cane of the reasons enuerated in article IV, Section 5 as the basis for offsetting n protected erngloyce's benefits. we must sustain the claim.
SWARD

Cairier violated the proN·isions of the February 7. 1 965 Agreement in Mediation
Case No. A-71'_'8, as amended by tVt:ele XII of the September 2. 1996
Agreement in Mediation Case ?ate. A-1?718 when it deducted from Claire ants`
protective payments amounts equal to claims payments they received in
connection with a n"otiated settlement of a collective bargaining agreement
claim involving lass of xvork opportunities, The claim is hereby sustained.

,.

._. ;stn Ii S. K`eni5 -~_
Chairperson and Neutral Mesnber

Donald F. Griffin tram rt~t.ion Member

RB.
A `f 'ehrii
«rt,anizatictn Member

Datcd this day cat`

.1. 14.. Graflia
Carrier ,Member

h F. i-lennecke
Carrrier Member