Arbitration Pursuant to Appendix III, Section 11
(Finance Docket No. 28250)
Involving the
"New York Dock Protective Conditions"
Imposed by the
Interstate Commerce Commission
on the
Burlington Northern Railroad Company
Award No. 4
Parties to Dispute: Burlington Northern Railroad Company
and
Brotherhood Railway Carmen of the United
States and Canada
Statement of Claim:
"1. That the Burlington Northern Railroad violated and
breached the letter and intent of the provisions of
I.C.C. Finance Docket No. 28250 (commonly known as New
York Dock Conditions), particularly Sections 6 and 7,
thereof, when the aforesaid Carrier made a reduction in
forces affecting Carman Painter L. R. Dixon. That the
reduction in forces affecting Claimant resulted from
the merger related transaction to the change in operations, at the two common points and the abolishment of
all junior redundant personnel protected by the New York
Dock Conditions.
"2. That the Burlington Northern Railroad Company be required
to award Claimant -the employee protective benefits set
forth in Sections 6 and 7 of the New York Dock and all
fringe benefits provided for in Section 8 of the New
York Dock."
Committee Members: Chairman and Neutral Member: Gil Vernon
Labor Member: R. P. Wojtowicz, Vice President
Brotherhood Railway Carmen of
the United States and Canada
Carrier Member: J. N. Locklin, Manager -
Labor Relations
BACKGROUND
In 1977, Burlington Northern (BN) and the St. Louis San Francisco Railway Company (SLSF) initiated discussion concerning a
merger. Approval for the merger was sought from the Interstate
Commerce Commission (ICC) and it was granted effective November 21,
1980. As a condition of the approval, the ICC imposed the Employee
Protective Conditions set out in Appendix III of Finance Docket No.
28250, commonly referred to as the "New York Dock Conditions".
Section 11, set forth the Arbitration procedures "in the event the
railroad and its employees or their authorized representatives
cannot settle any dispute or controversy with respect to the interpretation, application or enforcement of any provision of this
appendix." The instant committee was established pursuant to Section 11, and a hearing was held in this matter in St. Paul, Minnesota on September 29, 1985.
Pursuant to the New York Dock Conditions, the Carrier and
the Organization entered into an Implementing Agreement covering
consolidation of car repair facilities and functions at Kansas City
and St. Louis. Prior to the merger, BN Carmen at North St. Louis
had been part of the Hannibal seniority district which included
other points in Missouri, Iowa and Illinois, whereas the SLSF
Carmen had point seniority. The St. Louis point covered the Lindenwood Yard and Valley Park, Missouri. Pursuant to the January
29, 1981 agreement, effective February 2, 1981, the car forces at
St. ,Louis were consolidated and the former SLSF Carmen had their
seniority dovetailed onto,the BN Hannibal seniority district roster. Those carmen who were adversely affected by the merger received the appropriate New York Dock benefits.
The Claimant was originally a SLSF employee hired in July
1958 as a carman-painter and worked at the repair track at the
Lirdertwood yard. Effective January 13, 1984, the positions of
carmen. and that of the Claimant, were abolished as the result of
the elimination of the repair track at Lindenwood. The Carrier
contends that carmen continued to perform car repair work at Lincenwood working out of Valley Park with a road truck.
The Organization argues that the Claimant was affected by a
"transaction", and therefore is entitled to the protective benefits
specified in Appendix III. The "transaction" is the eventual
consolidation of all car repair functions at North Kansas City,
Missouri. In their opinion, the abolition of all redundant positions at Lindenwood, and other points, is simply one step along the
way. Therefore, as part and parcel of the grand plan made possible
by the merger, the abolition of jobs at Lindenwood should be considered a transaction.
The Carrier argues that the Organization has failed to identify a "transaction" or causal nexus between the merger and the
abolishment of the Claimant's position. Instead, they contend that
the abolishment was the result
of
the gradual evaporation of painting work and the Carrier's decision to expand the intermodal operation at Lindenwood which, because
of
space needs, required the
closing of the repair track. With respect to the lack of painting
work, they note that the Claimant was originally to paint multilevel auto racks owned by the SLSF. They contend this work gradually ceased to be performed because the older racks, which required
painting, were retired and were replaced by enclosed racks. These
new style racks did not require painting because the painted surfaces were protected from the elements. In fact, the painting of
auto racks ceased by 1978. Thereafter, the Claimant performed
stenciling of light weights on cars, much of which was on TTX
equipment. Because of a change in AAR Interchange rules this work
was also eliminated. Thereafter, the Claimant performed stenciling
of reporting ;narks on cars and miscellaneous duties including odd
jobs and running errands. With respect to the decision to expand
the intermodal service and close the repair track, they contend it
was not merger related; noting that no ICC approval is needed for
such a decision. As such, they contend it was not a transaction
since it was not "pursuant to authorization of (the) Commission."
It is the finding of the Committee that the Carrier has presented the more convincing case here. This is so for several
reasons. First, a nexus is difficult to draw between the Claimant's furlough in 1984 and the merger in 1980, four years earlier.
This certainly does not, per se, mean that actions made only possible because of the merger could not affect him, but as time goes
on a connection is more difficult to draw. However, the fact of
the matter is that the Claimant continued to work three years after
the consolidation of forces at St. Louis, which is the only action
readily identifiable in this record which could be termed a "transaction" potentially affecting the Claimant.
Second, it is apparent that there was indeed a gradual evaporation of the Claimant's work. Thus, it is likely that his position
could have been legitimately abolished without regard to the
merger.
Last, it is noted the committee's conclusion that there was no
tran3action is supported by the fact that the closing of the particular repair facilities at this particular time was an operational change which could have been accomplished in the absence of the
merger.
In view of the foregoing, the Claim
AWARD
The Claim is denied.
is denied.
i Vernon, airman an Neutral Member
,owicz, -Carrier Member
or Member .oc in,
L-r-xi'll
Dated this 3RD day of January, 1986.