Ford v. Chesapeake & O. Ry. Co.

• Decision Date: 09 June 1977
• Docket Number: Civ. A. No. 75-0050-R.
• Parties: Ryland H. FORD v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia Corporation.
• Court: U.S. District Court — Western District of Virginia

432 F. Supp. 1285

Ryland H. FORD v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia Corporation.

Civ. A. No. 75-0050-R.

United States District Court, W. D. Virginia, Roanoke Division.

June 9, 1977.

Michael McH. Collins, Collins, Wilson, Collins & Singleton, Covington, Va., for plaintiff.

Philip L. Lotz, Lotz, Black, Coleman & Gudal, Staunton, Va., for defendant.

MEMORANDUM OPINION

TURK, Chief Judge.

In this action pursuant to § 307(a) of the Railroad Passenger Service Act, 45 U.S.C. § 547(a), Ryland Ford seeks to recover wages assertedly due him under a labor protective agreement, but which were withheld by his employer, the Chesapeake and Ohio Railway Company ("the Railway"). Mr. Ford worked for the Railway from 1946 until 1976 in various capacities and was designated a trucker C-179 (porter) at Ronceverte, West Virginia in 1970. On May 1, 1971, Amtrak assumed responsibility for certain of the Railway's routes, thus abolishing the trucker C-179 position at Ronceverte. The Railroad Passenger Service Act ("Amtrak Act"), 45 U.S.C. § 501 et seq., required that Amtrak and the Railway reach a "protective agreement" to cushion the impact of Amtrak "takeovers" upon the earning power of displaced employees such as Mr. Ford. The Railway entered into such a protective agreement with Amtrak, subsequently which was certified as fair and equitable by the Secretary of Labor, and incorporated by his direction in the collective bargaining agreement between the carrier and its employees. 45 U.S.C. § 565. Under its terms, Mr. Ford, as a displaced employee, had certain options. He could obtain a lump sum severance payment and retire from service, or he could elect to take advantage of a six-year guaranteed wage scheme keyed to his earnings as a trucker, the last position he had occupied. Mr. Ford chose the latter, commonly called the Amtrak guarantee.

The protective agreement at issue, Appendix C-1 to the collective bargaining agreement between the Railway and BRAC, Mr. Ford's collective bargaining agents, provides in pertinent part:

DISPLACEMENT ALLOWANCES — (a) So long after a displaced employee's displacement as he is unable, in the normal exercise of his seniority rights under existing agreements, rules and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, he shall, during his protective period, be paid a monthly displacement allowance equal to the difference between the monthly compensation received by him in the position in which he is retained and the average monthly compensation received by him in the position from which he was displaced.

Each displaced employee's displacement allowance shall be determined by dividing separately by 12 the total compensation received by the employee and the total time for which he was paid during the last 12 months in which he performed services immediately preceding the date of his displacement as a result of the transaction (thereby producing average monthly compensation and average monthly time paid for in the test period). Both the above "total compensation" and the "total time for which he was paid" shall be adjusted to reflect the reduction on an annual basis, if any, which would have occurred during the specified twelve month period had Public Law 91-169, amending the Hours of Service Act of 1907, been in effect throughout such period (i. e., 14 hours limit for any allowance paid during the period between December 26, 1970 and December 25, 1972 and 12 hours limit for any allowances paid thereafter); provided further, that such allowance shall also be adjusted to reflect subsequent general wage increases.

If a displaced employee's compensation in his retained position in any month is less in any month in which he performs work than the aforesaid average compensation (adjusted to reflect subsequent general wage increases) to which he would have been entitled, he shall be paid the difference, less compensation for time lost on account of his voluntary absences to the extent that he is not available for service equivalent to his average monthly time during the test period but if in his retained position he works in any month in excess of the aforesaid average monthly time paid for during the test period he shall be additionally compensated for such excess time at the rate of pay of the retained position.

(b) If a displaced employee fails to exercise his seniority rights to secure another position available to him which does not require a change in his place of residence, to which he is entitled under the working agreement and which carries a rate of pay and compensation exceeding those of the position which he elects to retain, he shall thereafter be treated for the purposes of this section as occupying the position he elects to decline.

(c) The displacement allowance shall cease prior to the expiration of the protective period in the event of the displaced employee's resignation, death, retirement or dismissal for justifiable cause.

The Railway does not dispute that Mr. Ford qualified in all respects under the terms and conditions set forth above for guaranteed Amtrak payments for a six-year period from the date of his displacement, that is, until April 30, 1977. Payments were commenced in May 1971. In October, 1974, however, the Railway determined it had overpaid Mr. Ford for the period January 1, 1972 until October 31, 1974 in the approximate amount of $11,197.71, and without notice to him ceased all payments in order to recoup that sum. Plaintiff accordingly received no compensation for a period in excess of one year, until the Railway by this method had recovered the asserted excess.

At trial, the Railway offered intricate and ultimately confusing explanations of how it overpaid Mr. Ford. Thus, it remains unclear under just what theory Mr. Ford was compensated during the period of alleged overpayment. It is clear, however, that scant precedent exists in the industry for the manner in which recoupment was effected. A member of the Railway's labor relations department testified that small overpayments were often made due to the complexity and multitude of agreements affecting wages, and the mechanical problems of establishing hours and rates of pay. In such cases, overpayments are recouped by withholding the relatively small amounts involved from the employee's next paycheck. No arbitral authority, collective bargaining agreement provisions or other authority was cited for complete cessation of income for the period involved here.

At trial it was disclosed that the "overpayments" were made to Mr. Ford when the Railway's payroll department, as advised by its labor relations department, calculated his compensation on the basis of payroll forms "improperly" submitted by Railway agents charged with preparing such forms. The "mistake", if there was one, was the Railway's. That "mistake" persisted for a substantial time, although the Railway's payroll and labor relations personnel had ample opportunity to...