I N RE
ARBITRATION, PROCEEDINGS
UNDER
NEW YORK DOCK LABOR PROTECTIVE
CONDITIONS (IMPOSED BY INTERSTATE
COMMERCE COMMISSION IN FINANCE
DOCKET NO. 29455 ((SUB NOS. 1-5) )
AND RELATED PROCEEDINGS)
PARTIES TO DISPUTE:
NORFOLK
& WESTERN RAILWAY
COMFA1'`Y ANM
ILLINOIS TERMINAL RAILROAD
COMPANY
AND
UNITED TRANSPORTATION UNION
APPEARANCES: FOR NORFOLK & WESTERN RAILWAY
J. D. Gereaux
FOR ILLINOIS TERMINAL RAILROAD
J. W. Horan
FOR
UNITED TRANSPORTATION UNION
W. G.Mahoney
E. DuBester
C. L. Caldwell
R. S. Metz
GENERAL CFiAIRMAN, UTU-CET
W. H. Pelton
GENERAL CHAIRMAN, UTU-CET
J. J. Hultz
DECISION A's IAWARD
STATE.M:NT OF FACTS
:
The Interstate Commerce Ccm.:,ission
aIr
proved the co-ordination of operations by the Norfolk and
Western Railway Company (hereinafter for brevity referred
to as fu), and Illinois Terminal Railroad Company (hereinafter referred to as IT) in its decision in Finance Docket
No. 29455 (Sub Nos. 1-5) and related proceedings, service
date June 22, 1981. Conditions for the protection of employees as set forth in. New
York Dock
Rf.--Control-Brooklyn Eastern District, 300 I.C.C. 60(1979) herein referred to as "New York Dock Conditions" were imposed in
connection with this coordination of operations, and as
prequisites thereof.
Article 1, Section 4 of said New York
Dock Conditions requires that following such order of
coordination, the carriers serve a ninety day notice of
the intended transaction: and pursuant to such order the
involved parties meet and attempt to negotiate an implementing agreement under which the employees will work
upon
consummation. of the consolidation.
Accordingly,
following
the I.C.C.
order and the imposition
of the
New York.Dock Conditions,
the carriers served such required notice on the United
Transportation Union, representative of certain
of its
employees as of July 29, 1981, notifying of Carriers'
intent. to unify, coordinate, and/or consolidate their
respective operations on or after November 1, 1981.
Pursuant to such notice, the parties
on five days during August, 1981, being August 10, 11,
19,.20, and 21: and upon eleven days in September, 1981,
being September 2, 3, 4, 14, 15, 16, 17, 18, 28, 29 and
30; and on three days in October, 1981, being October 1,
2 and 18; and endeavored to reach an :L-nplementing agreement under which the employees would work upon consumdtion
of the
consolidation.
The parties, however, despite such
sustained meetings and efforts, did not succeed in
reaching a complete implementing agree.-nent. Many items
hogi=ever, were tentatively settled. Upon such impasse being
reached, the Carriers
advised
the mrnployees that all proposals made during the conferences, except the original proposal,
be considered withdrawn; and that the Carrierz would ~»-t~c::ed .
by invoking arbitration as provided for in Article 1, Section
4, of the New York Dock Conditions.
The arbitration agreement in this dispute
was thereupon created. The undersigned was named as Arbitrator by the National Mediation Board. Oral arguments were
held in St. Louis, Missouri and the parties filed written
submissions and briefs.
SENIORITY LIST
The first and most important issue, it
seems to the Arbitrator, is
a
decision as to the method by
which the seniority rosters are to be combined.
It is the carrier's proposal as it now
stands to dovetail by seniority date and craft the active
employees of IT with
the
corresponding active employees on
the
St. Louis Terminal. Trnereafter the inactive (furloughed)
IT employees' names would be dovetailed by craft with the
inactive NW employees on St. Louis Terminal and the combined
inactive group will then be placed or. the bottom of the previously dovetailed active group of employees; this procedure
to produce the new
rya
consolidated St. Louis Terminal Roster.
(This procedure also contemplated provisions under which certain employees may have their names
Vemoved from the St. Louis Terminal Roster or in some possible instances when qualified be placed on a different
roster elsewhere).
The
employees reject this method of
constructing a combined seniority list. The employees have
insisted throughout negotiations that the preferred and
;fairest method is an "order of selection" so-called working
list;
or as the employees have also characterized it, an
:~rder of equity" in the actual assignments remaining upon
consolidation. The employees, therefore, repudiate and
oppose the method of dovetailing the list as proposed by
carriers.
proposal that:
The carriers argue in support of their
a. It includcs all the provisions
necessary to fully comrply with the provisions and obligatio::s imposed and
contained
within Article
1. Section 4
or
the New York Dock Conditions;
b. It is equitable, and fulfills
the criteria necessary to implement the
consolidation of firemen, hostlers, conductors and trair"ien in the Carrier's
operations of the consolidation; and that
c. It carries out the intent of the
Interstate Commerce Commission order which
authorized Norfolk and Western's purchase
of the Illinois Terminal.
Other factors
which
Carriers assert are
that their proposal has been proven by experience; that Carriers' proposed method of dovetailing "is fair and equitable
and the easiest method to administer, thus eliminating a lot
of confusion as well as ill will among the involved employees
Discussion. The Arbitrator has given
careful consideration to the argxrents and submissions of
both Carriers and Employees with reference to the method of
arriving at a seniority list that would be fair and equitable, so far as is possible, to everyone concerned. No
question of the Arbitrator's authority to rule on this particular point has been raised in these proceedings, and the
Arbitrator rules full jurisdiction exists to proceed to make
a determination that will put this particular issue to rest
and may have some impact upon the solution of any r&naining
issue or issues.
WABASH AGREEMENT
The Carriers in their proposals during
the period mentioned made a further primary.proposal which
was not resolved by the required negotiations and which
substantially contributed to the breaking off of such conferences. :his was the Carriers' proposal to place all a.mployees
under the provisions of the Wabash schedule agreements upon
final consummation of the consolidation. The Carriers make
substantially the following argument:
The St. Louis Terminal area is where the
greatest impact of this transaction will fall.
The N<·: already has a consolidated St. Louis Terminal, having taken control of the former Wabash
Railroad and the former Nickel Plate Road on
October 16, 1964. As a result of that transaction NIX already has on= group of employees
working under the former Wabash schedule agreement arid another group working under the former
Nickel Plate agreement on the St. Louis Terminal.
The Carriers further allege that the
problems such an arrangement, coupled with other arrangements
throughout the merged VK chain, led to the Carriers' proposal
to place all employees under the M·: (formerly Wabash) schedule
agreement and dovetailing the seniority rosters as explained
during that portion of the negotiations.
The Carriers explain that the problems of
maintaining separate schedule agreements are numerous. The
Carriers further allege,
wile the basic provisions of most
agreements are alike, the differences in many
of the "secondary rule" present severe problems such as rules governing investigation
and discipline, calling employees for work,
arbitraries,and special allowances. Such a
situation would be extremely'burdensome andwasteful to ad.-ninister. Where hil has had to
apply two or more agreements to the same work
forces at other places in its system, serious
problems have arisen.
Discussion. Much of the argument and discussion of the Wabash agreement revolved about the jurisdiction
or
power of the Arbitrator to impose .all or part of a negotiated
schedule agreement upon F5art of a membership foreign to that
agreement, that being the Carriers' proposal to place all
employees hereby affected under the so-called Wabash agreement.
There is no doubt the product bf that
"transaction," (if
it
can be called that), might initially
result in a better working or more convenient agreement for
the carriers, and might even have benefits for the employee
group involved, but there is very substantial doubt of the
Arbitrator's jurisdiction to deliver such a package.
There are decisions both ways on that
issue and the Arbitrator cannot say that there is no authority to revise or rearrange score provisions of a working
agreement in some cases if clearly specified and required,
(as is not in this case), in the order of the Interstate
Commerce Commission or a superior body.
This, however, is not one of those situations. U'hat the Carriers are asking here goes much too far.
It involves the entire destruction of part of one negotiated
working agreement. The answer here is curther negotiations.
The Arbitrator is of the
opinion, from
the record, that
negotiations for
a new and proper implementing agreement have not been cazried out to the extent
required for success. The Arbitrator is of the further
opinion that such negotiations, if resumed, may result in a
full and complete resolution by agreement of all issues, both
major and minor, necessary to secure a complete implementing
agreement, satisfactory and fair to all.
No good cause or necessity has been shown
for arbitrarily applying and imposing the Wabash agreement
upon a group of employees who had no hand or participation in
negotiating the Wabash agreement.
AWARD
Seniority List. In consideration of all
the foregoing, the Arbitrator therefore hereby sustains the
Carriers' proposal as to the method to be used in integrating
and conpiling the new seniority list as set forth and discussed previously herein.
X v; A :Z.D
11abash hcr.ee-ent. The Arbitrator hereby
denies the Carriers'
request
to place all of the employees
under the Wabash Agreement and refers that portion of the
dispute to the parties for further negotia~ions as hereinafter
pfovided.
IT IS FJRTHER' ORDERED ~h'D AWARDED
that in
addition to any protection benefits which :nay be awarded or
confirmed above, all eligible employees affected by this Award
shall be and are hereby awarded protective benefits not less
in any event than those conferred by the Washington Job Protection Agreement; and/or of those specifically conferred or
confirmed by the interstate
qorunerce Commission in its
order
or orders (including New York Doc'i: Conditions, Article 1,
Section 4) permitting this consolidation.
The Arbitration Awards on the Seniority
List and the
Wabash
Agreement have removed important road
blocks. The remaining issues in such arbitration concern the
schedule rules and that portion of the total dispute remains
open in this arbitration.
The parties have tentatively agreed upon
sane various sections of an Implementing Agreement
including
certain day-to-day operating rules. It is believed that with
the rulings on the Seniority List and the Wabash Agreement
now accomplished, that additional effort by the parties.will
result in final and complete disposition of all issues.
The Arbitrator now therefore returns that
remaining portion of the dispute to 'the parties, reserving
arbitral jurisdiction to resolve by further or supplemental
Arbitration Award or awards, any deadlocks that may remain
following the expiration of twenty (20) says from date of
this document.
Dated at Fort Worth, Texa this 2 Bay of , 198-4.
Leverett Edwards, Arbitrator
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Mr. Leverett Edwards
2704 Scott Avenue
Fort Worth, Texas 76103
CHICAGO, ILLI\OIS GOG03
TEI.TI'l10\
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312: 053-7000
TELE\
25-4354
February 9, 1982
Re: UTU and NEW/IT (New York Dock 54 Arbitration)
P.O. Box
100
Mvscwr. Sccr.wwrr or Onw
TLLCr1fOSC 723-471
Tat:x
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P. O. Dote ee19
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TCLIEIIlOY1C
971-293194
Tcs.rlc
47216
Founded In 1866 as
Wllllanl>. R 7Tunlp.%on
Dear Mr. Edwards:
We have received Mr. Mahoney's letter of February 5,
1982, to you and we wish to make a few comments on it.
Firs, we were most surprised to read fir. Mahone5
interpretation of your award as "inconsistent." We understand
that you held that the blanket imposition on former Illinois
Terminal employees of the entire NW-Wabash agreement was beyond
your jurisdiction based upon the evidence presented. You left
your door open, however, for the resolution of subsequent deadlocks between the parties over specific matters which might be
necessary for the Illinois Terminal coordination. You did not
hold, we do not think, that the parties
would have
to negotiate
an entirely new arbitration agreement in order to resolve these
deadlocks. If this were the case, the union could frustrate
the coordination by simply refusing to arbitrate certain issues.
Moreover, as Mr. Mahoney concedes, neither you nor
Mr. Sickles held that changes in agreements could never be made
in Section 4 arbitration.
The fact is that the parties have been negotiating
productively and all but a few of the substantive terms of tile
Illinois Terminal coordination have been agreed to.
Very14Az0,)ily yours,
Martin M. Lucente
M:1L/gk
CC:
William
C. Mahoney
LLVFRE'I? L:UWARU°
2704 SCOTT AVENUE
FORT WORTI1, TEXAS 76103
531 2345 · 536.1225
Mr. Ma=tin M: Lucente
Sidely & Austin
One First National, Plaza
Chicago, Illinois 60603
Dear Mr. Lucente:
Fcbruary 11, IOU
Following the issuance of the Decision and Award in the captioned as
bitration proceeding, the Arbitrator has reviewed its contents and
wishes to clarify, for the benefit, of the parties, the purpose and
intent of
the Award.
Throughout the Decision and Award this Arbitrator emphasized his
opinion and belief that the differences between the parties remainir
after the removal by the Decision and Award of the primary obstacle:
of seniority and jurisdiction
could be
resolved by negotiation between the parties. The Arbitrator remains firmly convinced of the
soundness of that view.
It was for that reason that the Arbitrator referred back to the
parties for further negotiations those portions of the dispute not
resolved by arbitration.
The Arbitrator retained jurisdiction "to resolve by further or suppl
mental Arbitration Award
or
Awards any deadlocks that may remain"
after further negotiations. In the light of the holding in the
Decision, the retention of that jurisdiction was, of course, limitc~
to any changes in the schedule agreements
which
the parties.upon
further negotiation would mutually agree to submit to him for
arbitral resolution.
Sincer
6 y
c.c. >iighsaw & Mahoney, P.C.
1050 Seventeenth St., N.W.
Suite 210
Washington, DC 20036
Mr. R. D. Kidwell
System Director Labor Relations
Labor Relations Department
Norfolk & Westcrn Railroad
Roanoke, Virginia 24042
Mr. C. L. Caldwell
Vice President, UTU
6809 Stonington Road, N.E.
Roanoke. Virginia 2401
J. W. Koran
Manager-Labor Relations
Illinois 'rerninal RR Co.
710 North Tucker Blvd.
St. Louis, Missouri 63177
L_nW OrrICES
IIIGIISAW & MAIIONEY, P. C.
SUITE 210
1050 SEVCNTECNTN STRCET.N.W.
\TIIASFIINGTON,
D. C.
20036
Jr,MESL H!G'i:A\V
ARE.. CODE 202
\VLLIAMG NI.aJ'.l£Y 206'0500
JO·iV O U CLARKF. JR.
JOSEF1iCU£RRIERI.JR.
February 5, 7982
CLINTON i MILLER. III
ERVEST\'l.0UBESTER'
J04`1 J SULLIVAN "
'·:,V.rTCOIV NEW ICIISVVAHOfLORIOAONLT
'nJMTTE0IV YEN·SIEVANM04LT
Mr. Leverett Edwards
2704 Scott Avenue
Fort Worth, Texas 76103
Re: UTU and N&:,T/rr (New York Dock 54 Arbitration
Dear Mr. Edwards:
Your decision in the above-designated case involving the
issue of an arbitrator's authority to eliminate or modify
schedule rules under Section 4 of the New York Dock II conditions
and the decisions of Messrs. Sickles anT-Zumas on the same issue
are consistent. Each holds that an arbitrator has no
jurisdiction under Section 4 to do so. Your decision does sta
that you do not hold that under no circumstances could such
jurisdiction be present but that no such circumstances are
present in this case.
In your Award, however, after stressing your conviction
ti:.tt
further negotiations could resolve the remaining unresolved
issues involving the modification of schedule rules, you retain
jurisdiction "to resolve by further or supplemental Arbit,:atten
Award or Awards any deadlocks that may remain" following tli(-)s`
further negotiations. At first reading, the Award seems
conflict with the Decision which concludes that*no such
jurisdiction exists.
The Decision and Award would be completely consistent, c:
course, if the retention of jurisdiction was intended to be
limited to the arbitration of changes in the schedule agreements
which the parties after further negotiations mutually agree to
submit to you.
It would be most appreciated if you would clarify youc
Decision and Award in this respect.
Thank you for your courtesy and consideration in this
matter.
Mr. R. D. Kidwell
System Director Labor Relations
Labor Relations Department
Norfolk & Western Railroad
Roanoke, Virginia 24042
Mr. C. L. Caldwell
Vice President, UTU
6809 Stonington Road, N.E:
Roanoke, Virginia 24019
M. M. Lucente, Esq.
Sidely a Austin
Qne First rational Plaza
Chicago, Illinois 60603
J. W. Horan
Manager-Labor Relations
Illinois Terminal RR Co.
710 North Tucker Blvd.
St. Louis, missouri 63177
5Sinc ely yo,
S,
Inc
/
W lliam G. Mahon y