In the Matter of Arbitration
between
BROTHERHOOD OP RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION
EMPLOYEES
and
SOUTHERN RAILWAY COMPANY
Pursuant to Appendix III, Section 11 of the
New York Dock Employee Protective Conditions
(Imposed by the Interstate Co=erce Commission
in Finance Docket 28250)
QUESTION AT ISSUE:
"Claim of the System Committee of the Brotherhood that:
1. Carrier violated the Agreement(s) between the parties when it declined to allow Claimant T. E. Venne his rightful displacement allowances for March (5191.69), April ($278.93), May ($365.42), and June
1982 ($278.93).
2. Carrier further violated
the
Agreement(s) between the parties when
it failed or refused to compute the Average Monthly Compensation due
Claimant T. E. Venne in a propel manner.
3. Carrier shall now be required to allow Claimant T. E. Venne his
displacement allowances enumerated, supra, in Item No. 1 and shall
further be required to compute
his
Average Monthly Compensation in
the proper manner as contemplated and mandated by the Agreement(s). "
FINDINGS
and
AWARD
FINDINGS:
By Decision and Order dated December 8. 1981 in Finance Docket
No. 29690, the Interstate Commerce Commission approved app~ication of
the Southern Railway Company and the Kentucky and Indiana Railroad
Company for a coordination of operations, facilities, services and
work forces of the two rail carriers.
In regard to the imposition of employee protective conditions,
the ICC Decision and Order reads as follows:
"Employee protections. - Our approval of SOU's purchase of KIT must be conditioned on SOU's agreement
to provide a 'fair arrangement at least as protective of the interests of employees who are affected
by the
transaction' as
the labor protective provisionatimposed in control proceedings prior to February 5, 1976. 49 U.S.C. 11347. In New York Dock Ry.-
Control-Brookyln Eastern Dist., 360 I.C.C. 60 (1979)
(New York Dock), affirmed sub. nom. New York Dock R y.
v. United States, 609 F.2d 83 (2d Cir. 1979), we described the minimum protection to be accorded employees
under the statute in the absence of a voluntarily negotiated agreement. 4i We may, if we choose, fashion
greater employee protective conditions, tailored to the
special circumstances of an individual case. Burlington Northern, Inc.-Control
6
Merger-St. L., 360 I.C.C.
784, 94,6 (1980) .
SOU estimates that SO employee positions will be abolished in Louisville and New Albany. Seven SOU agency
clerks and 1 SOU agent at Louisville will be transferred.
Six new positions will be created: 1 yard foreman, 2
yard helpers and 1 yard engineer at Louisville, and 1
Labor Relations Officer and 1 Director of Labor Relations in Washington, DC. All of these changes will occur in the first year."
The above referenced footnote, 4/, stated: "Applicants have rot
negotiated any agreements with labor unions which establish employee
protection in excess of the protections provided in New York Dock.
Applicants have commenced
negotiations with
labor unions to obtain
implementing agreements to effectuate the proposed transaction..."
In this latter respect, the Carrier and the Organization party to this
dispute entered into an implementing Agreement under date of Febru-
ary 26, 1982.
Almost one month after the ICC approved coordination, and by letter dated January 6, 1982, Claimant was advised by the Carrier,as concerns this dispute, that his then current position of Supervisor of Data
Processing (an appointed, non-contract position) was to be abolished
on January 31, 1982 and that he was being appointed Project Analyst,
Accounting, at Atlanta, Georgia, effective February 1, 1982, at a
salary of $2,220.00 per month. This letter further stated:
"Acceptance of this
appointment will
involve a change
of residence. Therefore, if you accept the appointment, you will be subject to the benefits of Southern's
relocation policy, which is attached.
If you choose not to accept this appointment, you may
opt to have Southern pay you a one-time cash payment
of 12 months pay.
In order to simplify your handling of these options, I
have provided below two spaces with which you may signify your election...
If you accept this offer, your new Department Head will
be in touch with you regarding the details of your relocation and assumption of your new position.
I would appreciate your advice and indication no later
than January 27, 1982."
Cncer date of January 14, 1982, the Claimant wrote Carrier as
follows:
"This has reference to your letter dated January 6,
1982, File LF 338-10-L.
I cannot accept br sign the two (2) options you are
offering because as I see them either option would
make me worse off than when I was working for K.&I.
Responding to Claimant's declination of the two options, the Car
rier, by letter dated January 22, 1982, essentially reminded Claimant
that mince he held seniority as a clerk under the KNIT Agreement at
Louisville, Kentucky, that he did, of course, have the right under the
Agreement to exercise seniority to a clerical position. In this same
connection, the Carrier letter further stated: "You should understand
that should you elect to displace a junior clerk that such action on
your part is a voluntary choice in lieu of accepting the protective
benefits contained in my letter of January 6, 1982." The letter con
cluded:
"In the event you change your mind and decide to exer
cise one of the two options contained in my letter of
January 6, please recall that I need your advice and
indication to do so not later than January 27, 1982."
On January 27, 1982. Claimant advised the Carrier that he wished
to exercise his seniority rights, stating he would displace a junior
employee from his position effective Monday, February 1. 1982. The
Carrier acknowledged receipt of Claimant's notice of displacement on
January 28, 1982_
Under date of April 12, 1982, Claimant filed with Carrier copy of
a form known as a "Request for Entitlement to Benefits" form. The
Claimant indicated on the form it was being filed account: "Placement
in a worse position with respect to my compensation and rules governing my working conditions." In response to a question on the form as to
the date he had first been placed in a worse position, Claimant stated
it was February 1, 1982 and March 21, 1982 account his position abolished. The Claimant listed the position he held immediately prior to the
dates shown above as "Per Diem & CMo" (the position to which he had exercised seniority to on February 1, 1982), and listed his current position as that of "City Clerk."
Upon receipt of the above form, albeit Carrier subsequently maintained it was by wrongful action, Claimant was notified by letter dated
April 26, 1982, that a "preliminary investigation" showed
his
approximate average monthly earnings in the twelve-month period ending February 28, 1982 to be $2,181.71, and that this would "hereaf-_=r (bet referred to as (Claimant's) test period average."
A little over six weeks later, on June 11, 1982, Carrier addressed
the following letter to Claimant:
"This is in reference to your request for Entitlement
to Benefits received in this office April 12, 1982,
and our letter to you dated April 26, 1982.
You were inadvertently
advised of
your test period
average in the above correspondence. This was improper due to the fact that you were on a nonscheduled position with the K&IT and were offered a position
with Southern as a Project Analyst which you declined.
Subsequently, you elected to exercise your rights to
a scheduled job.
You will recall after you made said election that
Mr. D. H. Watts, Vice President - Personnel, explained
to you in his letter of January 22, 1982 that your action was a voluntary choice in lieu of accepting the
protective benefits as explained in his previous letter to you of January 6, 1982.
If you had accepted the Project Analyst position as
offered, you would be currently employed with your
protection rights intact. Hence, the Carrier cannot
now be held liable for your protection.
For the reasons given above, you (sic) claim is invalid and accordingly declined."
Carrier's declination of the claim was thereafter appealed on
behalf of Claimant by the Organization to designated appeals officers
for the Carrier, and by agreement to this Arbitration Hoard in pursu=
ance of the grievance procedures of the New York Dock Conditions.
It is the Organization's contention that when Claimant's position
of Supervisor of Data Processing was abolished at Louisville he became
a "displaced employee" as that term is defined in Section 1(b) of Appendix III of the New York Dock Conditions and "clearly eligible for
benefits, i.e., 'Displacement allowances' as contemplated in Appendix III, Section 5," of the New York Dock Conditions.
Appendix III, Section 1(b) reads:
"Displaced employee' means an employee of the
=ailroad who, as a result of a transaction is
placed in a worse position with respect to his
compensation and rules governing his working
conditions."
Apcendix III, Section 5, reads in pertinent part:
"5. 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
=nthly 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.
(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
affected
by it."
On the one hand, the Organization argues "it is obvious that
the Carrier has attempted to 'put the cart before the horse.'" In
this regard, it submits that the provisions of the Implementing
Agreement of February 26, 1982 "were not even in effect at the time
Claimant was given his two (2) options either to move to Atlanta or
resign and remain in Louisville and even if it had been it would not
have been applicable to him due to the fact that he was not covered
by the Schedule Agreement on the K&IT." It urges, therefore, "the
Carrier was, if effect, attempting.-.to force Claimant to make a move
from Louisville to Atlanta under provisions of a non-existent agreement."
Conversely, the Organization states that "another remedy supports
the position of the Employes." In this respect, it directs attention
to Appendix III, Article IV of the New York Dock Conditions, stating:
"This clearly gives to the Claimant the same rights and benefits and
affords him the same protection as if he were, in fact, covered by the
Collective Bargaining Agreement."
Appendix III, Article IV, reads:
"Employees of the railroad who are not represented
by a labor organization shall be afforded substantially the same levels of protections as are afforded to members of labor organizations under these
terms and conditions.
In the event any dispute or controversy arises between the railroad and an employee not represented
by a labor organization with respect to the interpretation, application or enforcement of any provision
hereof which cannot be settled by the parties within
30 days after the dispute arises, either party may
refer the dispute to arbitration."
Carrier submits "that while it may be true that Mr. Venne was
by the transaction in question, he was not adversely affected
It urges that when Claimant "elected not to accept an offered
comparable non-contract position with the Southern Railway Company or
a lump-sum separation allowance, his actions from that point forward
were no longer a result of the transaction." It also argues that "in
order for this Board to identify Mr. Venne as either a 'displaced' or
a 'dismissed' employee, it would have to expand the definitions of
these terms."
It is the Carrier's further position that employee protection
agreements, as well as the New York Dock protective
conditions, "were
designed to provide protection to employees against adverse effects
flowing from the transaction involved and not adverse effects g
from other unrelated causes, as in the instant case." It asserts the
Claimant neither lost a regular job, nor was he involved in a chain of
displacements that resulted from the transaction. It submits that
Claimant, occupying a
non-contract position,
was precluded from taking
advantage of any of the benefits the Organization secured for its mem
bers for this particular
transaction, thus
making any arguments which
the Organization would offer relative to alleged violations of the
February 26, 1982 Implementing Agreement moot.
In the Board's view, while it may be that Carrier decided to
abolish Claim=t's former
non-contract position
as a consequence of
the coordination, there is no valid basis to support the
contention
a direct causal relationship or nexus exists between that abolishment
and any loss of compensation or earnings Claimant may have sustained
on the bas=s of his voluntary exercise of.seniority rights to a contract position. The change in the employment status of Claimant from
a non-cont=act to a contract position must, in our opinion, be treated
as outside the protective pale of the New York Dock Conditions. In
this respect, w=_ think it evident Claimant had the opportunity to be
afforded substantially the same levels of protections as are offered
to members cf labor
organizations by
having accepted one of the two
options accorded him relative to his employment status at the time o_°
the
coordinaticn as
a non-contract employee. Certainly, absent any
probative evidence that exercise of seniority to a contract position
was also a proper alternative available to Claimant, it must be held
that Claimant waived such
non-contact protective
status. At the same
time, the Hoard believes it must be concluded that any effort to
iden
tify a tangential effect as flowing directly from abolishment of the
non-contract position to Claimant's voluntary exercise of seniority to
a contract position, and thereby application of the Implementing Agreement of February 26, 1982, must likewise fail absent a clear showing
that such Agreement has application to non-contract positions the
same as contract positions.
Since the Board fails to find any proper basis to hold Claimant
is entitled to a displacement allowance under the terms and conditions
cited from the New York Dock Conditions and the Implementing Agreement,
we have no alternative but to deny the claim as presented.
AWARD:
The Question at Issue is answered in the negative. The Claimant
is not found to be entitled to a displacement allowance as claimed _n
the Question at Issue.
424K~k=
Robert E. Peterson, Chairman
and Neutral Member
-N-~
'~k
D. R. J
hnson, Carrier
Member
Atlanta, GA
October,T3
1
1984
_1~
E. 1, ployee member