In the Matter of Arbitration

Between

Railroad Yardnasters of America

and

Consolidated Rail Corporation

Detroit Terminal Railroad Co.

 0. so 0. 04 00 .0 00

 DECISION AIM ATTaLRD

 Background: On June 8, 1981 the Carrier wrote to Mr. «. Iiarless, General Chairman, Railroad Yardmasters of America, Detroit Terminal RR Co., and to J. C. Thomas, General Chairman, Railroad Yardmasters of America, Consolidated Rail Corporation,that the proposals advanced by these two General Chairmen were not acceptable with regard to negotiating an implementing agreement involved in the Carriers acquisition of the Detroit Terminal Railroad Company, and that unless the RYA was willing to change its position, the Carrier would invoke the arbitration procedures of Section 4, Article I, of the New York Dock Conditions.
 On June 11, 1981, the Carrier wrote the two General Chairmen stating it was invoking the aforesaid arbitration provisions of the New York Dock Conditions and suggesting the names of several neutrals who night function as the arbitrator in the case.

 On June 17, 1981, Mr. Thomas wrote the Carrier, on behalf of Mr. Harless and himself, that he was agreeable to the selection of Jacob Seidenberg as the arbitrator.

 On June 22, 1981 the parties wrote Dr. Seidenberg informing him of his selection and inquired as to whether he would accept the assignment. Dr . Seidenberg informed the parties he would accept the assignment and fixed July 13, 1981 as the date for a
 hearing on the case.
 On July 13, 1981 the arbitration hearing was convened at the Philadelphia Headquarter Offices of Conrail with all parties in interest in attendance.
 Ur. Thomas, at the outset, stated he was entering a special appearance in the proceeding because ICC Finance Docket No. 29489, wherein the ICC approved the acquisition of control by Conrail of the Detroit Terminal Railroad, had no applicability to Conrail Yardmasters, and, consequently there was no valid basis for the Carrier to send its April 17, 1981 joint letter to both General Chairmen. Mr. Thomas contended that this April 17, 1981 letter, which was the required ninety (90) day Notice pursuant to Article I, Section 4 of the New York Dock Conditions should have been sent only to Mr. Harless representing the Yardmasters of the Detroit Terminal Railroad. Mr. Thomas asserted that the Detroit $rminal employees, and not Conrail employees, would be adversely affected by the proposed acquisition of control of the Detroit Terminal. Mr. Thomas stressed that since Conrail Yardmasters were not encompassed by Finance Docket No. 29489, therefore, they were not required to participate in any arbitration proceedings under Section 4, Article I of the New York Dock Conditions and were not bound by any arbitration award rendered thereunder.
 Ur. Thomas stated that, without waiving or prejudicing his procedural objection, he would participate in the hearing to cooperate in the resolution of the pending dispute.
 Fir. Harless, on behalf o= h=s members, submitted to the jurisdiction of the arbitration proceedings.
 The Carrier maintained that General Chairman Thomas' procedural objection to the Arbitrator's jurisdiction was not well founded, and that his Organizzation was bound by, and included within the.purview of, Finance Docket No. 29489.
 At the conclusion of the July 13, 1981 hearing, the Arbitrator directed Conrail Yardmasters' Organization and the Carrier to submit a memorandum of law on the jurisdictional issues raised by Mr. Thomas, on or before July 27, 1981.
 On July 24, 1981 Mr. Thomas wrote the Arbitrator that his Organize=ion would not submit the Memorandum of Law, and that it was willing to allow the Arbitrator to decide the issue as to; whether the ICC Order encompassed Conrail Yardmasters. It added that if the Carrier adopted the same position, then the parties could confer jurisdiction on the Arbitrator, and they would be bound by the Arbitration Award as in any private arbitration proceeding. The Organization further stated that if the Carrier took a contrary position, it should proceed to the tribunal with jurisdiction.
 The Carrier filed its Memorandum of Law on July 27, 1981 setting forth its legal analysis as to why Conrail Yardmasters were "affected employees" within the terms of Finance Docket No. 29489, and covered thereby, and why the Conrail Yardmasters Organization vas required to participate in and be bound by an arbitration award rendered pursuant to Sect=on 4'., P.rticle I of the New Ror1; Dock Conditions.
 Before proceedinc to the discuss=on and analysis of both the jurisdictional and substantive issues raised .in this proceeding, it is necessary ~o outline the antecedents of the accquisition of the control by Conrail of the Detroit Terminal "ailroad.
 The DT^C owns and operated approximately 16 riles of b=It track around Detroit. Both Conrail and the Grand Trunk Western owned S0of its stock. These two railroads shared the operating deficit in proportion to the number of cars they handled each year. In 1979 Conrail handled 89% of the cars, and paid 89',a' of the deficit, i.e., $804,214. Conrail proposed to acquire GTU's stock for $1.00 and have the DTRC become a wholly owned subsidiary of Conrail.
 The Interstate Commerce Commission approved this transaction on Harch 10, 1981 in Finance Docket 29489, subject to the conditions for the protection of employees imposed in the Ne,.r York Dock case. The New York Dock Condition provides in part in Section 4, P.rticle I:







On April 17, 1981 Conrail served the requisite 90 day Notice on the General Chairmen of the Yardaaster Organizations of both Conrail and the DTRC. An initial meeting was held on t-!ay 12, 1981 between the Carrier and both General Chairmen. The Carrier proposed an Agreement, which the Conrail Yardmasters found objectional in part for the following reasons: (1) they did not grant the DILPC Yardnasters dovetailed into the e:;isting Conrail seniority roster; they objected to the method for determining the seniority of DTRC vardmasters who had the same seniority date as Conrail Yardaasters; they wanted Conrail to assure the legal liability that might ensue if the two seniority rosters were dovetailed. They also wanted to know whether there would be higher rates of pay for the Yardmasters working at the North Yard uhen the duties of the Detroit Terminal operation would be shifted to the North Yard.
 Mr. Harless also interposed objections to the Carrier's proposals in that it did not provide for the continuation of the sic!: leave rule of the DT.°.C schedule; or for the continuation of payroll deduction to the "ilo for City Credit L'nioz". T'he DT^C Yardmasters also wanted their e::is zing vacation clan continued cri th respect to an extra week vacation in an annive=sari -year when go-
 ing from a 2 to 3 to 4 to 5 wee!: vacation entitlenent. The Yardmasters also requested prior rights for DTRC Yardmasters to any yardmaster positions that night in the future be established on the territory of the Detroit Terminal Railroad. The DTRC YarCmasters also requested that the Carrier establish a fully funded escrow or Trust fund to cover the benefits under the New York Doc% Conditions. The DTRC Yardmasters also requested that one inactive Yardmaster be dovetailed, along with the active yardmasters, into the Conrail Yardmasters Seniority Roster,

 The parties met and continued negotiations on June 5, 1981. At this meeting the Carrier submitted a revised proposal. Mr. Thomas stated that, as a condition of agreeing to the Carrier's proposed revised agreement, wherein the four DTRC ylrdmasters, whose positions were to be abolished would have the option of electing a severance allowance pursuant to Article I, Section 7 of the New York Dock Conditions, that four Conrail Yardmasters should also have, in seniority order, the option of taking a severance allowance.
 The Carrier eras not amenable to accepting the General Chairman's proposals, and on June 8, 1981, as previously stated, invoked the arbitration provisions of Section 4, :.rticle I of the New York Dock Conditions.
 At the Arbitration Hearing held on July 13, 1981, Mr. Thomas asserted that Finance Docket No. 29489 had no application to Conrail Yardmasters, and it applied only to the Detroil Terni-
 nal RR Yardmasters because they would be the only employees adversely affected.
 The two General Chairmen reiterated their above stated substantive objections, to the Carriers revised proposal of June S, 1981. Mr. Thomas objected to the part time, or non-regularly assigned DTQC.yardmaster, being dovetailed into the Conrail Yardmaster Seniority Roster. Mr. Thomas further contended that since Finance Docket No. 29489 did not apply to his members, the only solution for the Carrier was to place all the yardnasters on the DTRC Seniority Roster on the bottom of the Conrail Seniority Roster with a seniority date being the effective date of takeover, and bringing with them the New York Dock Conditions. Mr. Harless objected to the proposal.
 The evidence adduced at the Arbitration Hearing indicated the unassigned extra yardmaster had four years seniority, and he covered the extra yardmaster assignment every Sunday as well as all vacation vacancies or any vacancy resulting from illness or injury.
 The record further indicated that there were ten t10) yardmasters on the DTRC Seniority Roste= as of April 14, 1981 and of these, four were actively working and one as an una33igned extra, and five were on furlough. The Carrier proposed to abolish all DTPC yardmaster positions and dovetail the DT^C yardoasters into the Conrail Seniority District No. 3, and to terminate the Detroit Terminal Schedule Agreement and make the current Schedule Agreement in effect between Conrail and RYA applicable to the DTZC yar dmas ters .
 The Conrail Yardmaster Seniority Roster District No. 3 as-of June 30, 1981 contained 120 employees, although Mr. Thomas asserted that as of August 8, 1981 there was less than 70 regular, relief and extra yardmaster positions in existence.
 The Carrier also introduced four implementing Agreements which it had negotiated arising out of its acquisition of control of the DTRC. Those agreements were with Brotherhood of Firemen and Oilers, the International Brotherhood of Teamsters, the Brotherhood of Railway Carmen, the International Association of Machinists and Aerospace t1orkers, and the Brotherhood of Electrical Workers. The Carrier stated its agreements with these Organizations were-substantially the same as the agreement offered the Yardmasters.
 The Carrier requested the Arbitrator to deny the requested proposals and modifications advanced by the Yardmasters as being unreasonable or unnecessary or both, as well as to find that Conrail Yardmasters were subject to, and covered by Finance Docket 29489.

 Findings: (jurisdiction)
 We find that-the Yardmasters on Conrail are subject to and encompassed within ICC Finance Docket tTo. 29489.
 The existing states of the law is that the Interstate Commerce Commission is statutorily required to afford employee protection to employees affected by a transaction which may cause their dismissal or the rearrangement of forces. The law permits the arrangement of this protection to be negotiated by
 the Carrier and the duly authorized representatives of the employees. In the case at hand, the ICC permitted .the petitioning Carrier, i.e., Conrail, to acquire control of the Detroit Terminal Railroad Co. , subject to the employee protective conditions of the New York Dock case. The Conrail Yardmasters are employees."affected" by the ICC approved transaction because there will be a reassignment of forces flowing from the integration of DTRC1s operation and forces with those of Conraills.
 The case lair is clear that employee protection is always appropriate for the employees of the applicant Carrier, and it may also be for the employees of the Carrier involved in the transaction. Since Conrail is the applicant Carrier, the Conrail Yardmasters are in the class of employees subsumed under "employees of the affected rail carrier", and which, if placed in a worse condition, are eligible for employee protection benefits. The ICC has held in a number of decisions that the employees of the applicant Carrier are always included as the employees who may be adversely affected by the transaction and therefore eligible for employee protection benefits. No find that the existing case lair places Conrail employees, as the employees of the applicant carrier, as affected employees within the meaning of the ICC Act.
 I-To find that Conrail Yardmasters must participate in, and be bound by, the award of the arbitration proceedings invoked, since the representatives of the Carries and Conrail Yardnasters have not been able to negotiate an agreement with respect to the
 application of the few Yor': Do c1: Conditions. The New York; Doc% Conditions mabdates in Section 4, Article I that any assignment of forces made necessary by the transaction, shall be nade either by agreement or an arbitration decision rendered pursua^t to Section 4. These are mandatory requirements. The negotiations which the parties conducted between t-tay 12, 1981 and June 5, 1931 were negotiations whereby Conrail was attempting to reach an agreement to coordinate and combine its forces with those of the Detroit Terminal Railroad. The consolidation of the two Yardmaster Rosters is critical to the coordination effort. These negotiations were not successful. The purpose of the present arbitration proceeding is to determine or prescribe a method whereby yardmaster forces from each operation will be integrated into a single operation. Since Conrail Yardnasters are employees of an affected Carrier,they are "interested" enployees in this coordination. The Conrail AYA Organisation is the representative of these "interested" employees, and is required to arbitrate the method of assignment of these employees caused by the transaction, pursuant to Section 4, Article I of Neon York Dock Conditions because the parties have not been able to negotiate an assignment of forces for the new coordination. The arbitration award will determine how Conrail Yardmasters will be affected by the coordination, and thus entitled to the prescribed employee protective benefits.
 Accordingly, we find that the Conrail Yardmasters represented by RYA are encompassed by the terms and provisions of
 Finance Docket No. 29489 and, _n the absence of negotiating an agreement for the consolidation of forces, must arbitrate the issues in dispute and be bound by the award of the arbitration

 proceedings.
Findings: (Merits)
 After reviewing the evidence of record and the oral arguments of the parties advanced at the Arbitration Hearing, the Arbitrator, pursuant to the authority vested in him by Article I, Section 4 o: the New York Dock Conditions, prescribes the terms of the following Agreement to be executed between the Railroad Yardaaaters of America, Consolidated Rail Corporation and Detroit Terminal Railroad Company, in connection with the Consolidated Rail Corporation's acquisition of the control, lease and operation of the property of the Detroit Terminal Railroad Company under Article I, Section 4 of the Few York Dock Conditions pursuant to Interstate Commerce Commission Order in Finance Docket No. 29489:



































A!!A.P.D: The dispute is disposed of in accordance with the above

 Findings.

 U..A lca4o,-~

JACOB SEIDIMBERG

Arbitrator

BTTERPRETATION OF ARHITRATIOZI AWARD RENDERED
IN DISPI·ia 8ET'.EEN
RAXLROAD YARDMASTBRS OF A)MRICA AND CONSOLIDATED RAIL CORPORr1TION
On August 13, 1981, the 'Undersigned Arbitrator rendered
an Award in a dispute between the
parties pertaining to the ap. plication of the employee protective conditions prescribed by the New York Dock Case. The dispute arose as a result of the Consolidated Rail Corporation acquiring control of the Detroit Terminal Company.
Beftreen Septs:absr
1981 and
March
1982 the parties disagreed as to the implementation of the Aubust 13, 1981
Arbi
tration
Award,
on April 22, 1982 the Arbitrator reconvened the disputants to hear argument, and to
receive
evidence on the matters in dispute between them. At this hearing several controverted issues were resolved, such as the award being
final and
binding without the necessity of executing a specific implementing agreement; the Carrier furnishing the organization a current consolidated Tardmaster roster; the Arbitrator finding that the matter of a vagr adjustment for yardmasters alleged performing additional duties vas not within the scope of his authority. The Arbitrator did agree to interpret the Award on the issue of granting separation allowances to Conrail Yardmasters.
The parties submitted post
Hearing
Briefs on or before May 17, 1982, on the issue of separation allowances.
The dispute devolves around Item 4 of the Award which
statess
"(4) The four Detroit Terminal employees regularly assigned as Yardmasters will, prior to the abolishment of their positions, have the option of electing a separation allowance to be effective on the date of this Agreement under the terms of Article Z, Section 7 of the New York Dock Conditions. Failure to indicate an Option prior to the date of the abolishment of their positions will be considered a rejection of the separation allowance. The Carrier shall also extend the same option, in seniority order, of taking a severance allowance, to Conrail Yardmasters, equal to the number of Detroit Terminal Railway Company Yardmasters, exercisint this option.'
The Organization stated that the Carrier had offered separation allowances to the Detroit Terminal Yardmasters, and on or about October 1, 1981, three such Yardmasters accepted these allowances. The Organization stated the local officers of the Conrail Yardmastars Organization advised all Conrail Tardmasters that there should be
at
least three (3) separation
allowances
offered thee. The Organization states that subsequent to the dissemination of this information, two Conrail Tardmasters
ap-
plied to the Carrier for separation allowances tut were denied
them.
The Organization asserts that the Carrier has refused to comply with the Award because language of Item 4 thereof is quite clear. It would be discriminatory to favor
Detroit Termi-
nal Yardmasters over Conrail Yardmastea6 since Conrail and Detroit Yardmasters profited from the acquisition, but only Conrail Yardmasters have been adversely affected, The Arbitra. tion !ward sought to make the situation equitable often it directed Conrail to eact®d the same option o! taking a severance allowance to Conrail Yardnasters equal
to the
number o! Detroit Terminal Yardmastors exercising this option.
The Organization states in view o! the clear and explicit
language o! Item (4), the Carrier, in
order to comply with the, Award, should immediately offer in seniority order
three (3)
separation allowances to Conrail Yardaastars in Seniority District go, 3.
The Carrier, an
the other hand, urges the
Arbitrator to re
ject the
Organizations request both
!or jurisdictional and substantive reasons.
The Carrier
maintains that Xt~ (4)
o! the
Award exceeded
the jurisdiction of the Arbitrator
tinder Section 7 o! New York
Dock Conditions which states#
*7, ,SeoaratIgSk
Aiiowance · A dismissed employee en
titled to protection under this appendix, nay. at leis option within 7 days o! dismissal, resign
and (in lieu of all other benefits and
protection
prowided !or is this appendix) accept a lump sum payment computed in accordance with section 9 o!
tae *a,shi:~toaa Job Protection Aqreement o! flay 1936,·
Section l(c! o! the Bow York Dock Condition stateas
·(o) $Dismissed acployee' means an enployoe of the railroad who, as a result of the transaction is deprived of employment with the railroad because of abolition of his position or the loss thereof as a result of the sxsrcise of seniority rights by an employee whose position is abolished as a result of a transaction.'
The Carrier
states that ztea (4f exceeded the Ar'bitra
tor's authority because Section 4 of the Vow York Dock Condi
tion confines his authority to the selection of forces and as.sift of employees. The question an to
who
qualifies as a 'dismissed employee' and thus is entitled to a separation al
lowance is defined
in Section 1 and 7 of the sew York Dock Conditions and is not subject to interpretation or award under Section 4 arbitration.
The Carrier states, without prejudice to its procedural abjection, it presumes that =teat (4) of the
Award vas included
because, in direct negotiations between the parties, the Carrier
offered to allow four t4) Detroit Terminal regular
yardoaeters the option immediately to elect a severance allowance despite the Year York Dock definition of a 'diacnisaod employee,'
Tae
Carrier adds that the Conrail ?ardmasters in its Bnbsission only requested a total of four separation allowances. There is no justification to subject the carrier to eight separation allowancae %hien only
four yardmaster* could
have bean dimiaaed as a result of the transaction. The Carrier adds,
aMaMdo. even if the Arbitrator rejects the basic jnrisdio-.
tional argunamt, no more than one additional separation allowance caws be awarded, since the Carrier has already paid throe separation allowances of over $30,000 apiece.
The Carrier further adds that this one separation al lea.. ance must be limited to active yardmasters in seniority order
within 30 miles (change of residence) of North Yard. The Carrier observes that to offer the allowance to Seniority Dis
trict No. 3 wnld rewire the separation of
a Yardmaster at
?.a; amazon, Jackson or Grand Rapids
locations ranging from 75
to 1S0 miles from Detroit and completely unaffected by the transactions.
The Carrier reiterates its jurisdictional objection to
the Arbitration Award dealing with separation allowances. It
stzonsea that
no Yardmaster either
from
the Detroit Terminal or Conrail has been deprived of employment as a result of the transaction. The Carrier has
flat its obligation. The Arbitra
tor should reject the Orgaaisationts request because it seeks
to eopamd the Carriers liability beyond the Mew York Dock Con
ditions'to employeoe
wbo
can show absolutely no adverse affect, mash less job deprivation.

piadings:
The Arbitrates finds that
he has jurisdiction to deal with
separation Ullowanoes under the Now
York Dock Condition because
the retiroeent of re0nlariy assigned
yardmastssi as
a result of these allowances stay have a direct and causal relationship to