In the matter of Arbitration between
United Transportation Union
and
Southern Pacific Transportation Company
Pursuant to Article IV of the New York
Dock II Conditions
--------------------------------------
S&ckg oun~
Decision and
Award
On January 26, 1979, the Southern Pacific Transportation
Company (SP) and its subsidiary, the St. Louis Southwestern
Railway Company, filed application with the Interstate Con:n.erce
Commission for permission to purchase from the Chicago, Rock
Island and Pacific Railroad Company, the Tucumcari line between
Santa Rosa, New Mexico, and St. Louis, Missouri, via Hutchison,
Kansas, and Kansas City, Missouri. The application was approved
by the ICC on June 6, 1980, in Finance Docket No. 28799, which
imposed the employee protective conditions contained in New York
Dock II. Appendix III, 360 ICC 60 (1979).
On January 6, 1983, subsequent to an extensive
rehabilitation program and pursuant to the ICC authorization, the
SP instituted the routing of traffic, formerly carried from El
Paso, Texas, to the St. Louis gateway via Corsicana, Texas, over
the acquired Tucumcari line from Santa Rosa, New Mexico, to
Kansas City, Missouri. It then used Missouri Pacific track to
move freight to St. Louis, the rights to use such track having
been l'? by the ICC on October 10, 1982,, in Finance Docket
No. 310000. This work was performed by employees of the Western
Lines of the SP.
The Organization, representing the SP Eastern Line
employees, contended that such employees were afforded employee
protection pursuant to the ICC decision in Finance Docket No.
28799 and requested that the Carrier cease rerouting traffic
until expiration of a ninety-day notice pursuant to Article I,
Section 4 of
New York Dock II. The Carrier denied that these
employees were afforded protection under the ICC decision,
stating that the decision applied only to St. Louis Southwestern
Railway employees and notice was never served on the Eastern
Lines employees.
Subsequently, the question of coverage of the SP Eastern
Lines employees was submitted to arbitration on the basis of
differing statements by the Carrier and the Organization. On
February 4, 1985, Chairman Harold M. Weston found that either
statement caused coverage to exist under
New York Dock II.
Thereafter, negotiations were held between March 11, 1985,
and June 12, 1985, in an attempt to write an implementing
agreement. On July 15, 1985, as a result of its belief that an
impasse had been reached, the Organization requested the National
Mediation Board to appoint an arbitrator pursuant to the
provisions of Article 1, Section 4 of New York Dock 77 for the
purpose of rendering a decision to resolve the merits of the
dispute.
On July 30, 1985, the National Mediation Hoard designated
Robert O. Harris to sit as the neutral to resolve the dispute.
Thereafter, the parties agreed to a hearing on October 2, 1985,
at the Carrier's offices in Houston, Texas. At that time briefs
were submitted by both sides and oral argument was heard. The
parties agreed that since the Carrier had raised several
procedural issues, those issues would be decided first by the
Committee and thereafter, after the filing of additional briefs
by each side, the Committee would consider an award on the
merits.
On October 10, 1985, the Committee rendered its procedural
award. Thereafter on October 11, 1985, the Carrier asked for
clarification of that award, which was made by Supplemental
Decision dated October 14, 1985.
' 'both the Carrier and the organization have had an
opportunity and have filed additional briefs on the merits. The
matter is now ready for decision.
Discussion
In order to fully discuss all of the problems which have
been raised by the parties, it will be necessary to discuss each
of the proposed sections of the implementing agreement submitted
for. consideration by the organization. Accordingly, each section
will be taken up in turn. The matters discussed will be taken in
the order proposed by the Organization followed by a discussion
of several Carrier proposals.
The entire Implementing Agreement will be attached hereto as
an appendix to the decision and will be binding on the parties in
accordance with Section 4 of Appendix III of New York
Dock Ii.
Preamble
The Oranization has requested the inclusion of certain
"whereas" clauses which give background to the reasons for the
implementing agreement. The Carrier did not specifically object
to the inclusion of these paragraphs. They shall, accordingly,
be included in the Agreement.
The Organization has proposed and the Carrier has not
objected to the inclusion of this article which sets forth the
applicability of the New York
Dock II
conditions to this case.
Article II
The organization has proposed certain notice requirements
which the Carrier finds objectionable. While the proposal
contains three subsections, much of the objection centers around
the requirment to send by registered mail notice of the
transaction, a copy of the award in this case, and a list of
affected employees. Additionally, the Carrier indicates that it
believes that the burden of proof to show displacement is upon
the individual employee and not the Carrier.
The Carrier has stated its position in regard to notice as
follows:
The proposed language in Article II, Section 1 goes
far beyond NYD II notice requirements, i.e., NYD II
Section 4(a) only requires the posting of notices on
bulletin boards convenient to interested parties and
registered mail notice to the representatives of such
interested employees. This Committee lacks the
authority to change or expand notice requirements.
Such plenary authority is vested only in the I.C.C.
This Committee cannot agree with the quoted statement of the
Carrier. Section 4(a) of Flew York Dote provides for the
posting of notice before the
there shall be "no change in
reached or the decision of a
whatever reason, the Carrier
event and Section 4(b) provides that
operations" until after agreement is
referee rendered. In this case, for
failed to provide the required
notice. To now maintain that g_l~ pQ21
facto it need only do what
it should have done earlier is to allow the Carrier to disregard
the intent of
New York Dock II by complying with its form but not
its substance. This Committee does not agree that the
suggestions offered by the Organization-.expand or change.-the
notice requirements set forth by the ICC. Rather they attempt to
effectively give the notice that the I.C.C. intende6.
Accordingly, the Implementing Agreement will contain .language
which directs that employees in a cut off or furlough receive.
actual notice of the transaction,- including -notice. that they, may
obtain a copy of the implementing Agreement.
The Organization in subsection 2 requests that copies of the
Implementing Agreement be sent by registered mail to all
employees in a cut off or furlough status. The Committee does
not believe that this is necessary. If the notice provided in
subsection 1 is given, the individual employees may be provided
with copies of the Implementing Agreement in the same way that
copier of newly agreed upon collective bargaining agreements are
distributed or inquiring employees may either contact their
bargaining representative or may request the Carrier to send them
a copy.of this Agreement.
Finally, in subsection 3, the Organization has requested
that the Carrier give its General Chairman, by a date certain, a
list or lists of all affected employees. The Carrier on the
other hand has indicated that it believes that the only way that
there can be a determination as to entitlement to protective
benefits is where an individual employee has progressed or will
progress a claim and that the Carrier is under no obligation to
provide the Organization with a list of employees who may be
making claims. The Carrier indicates that to do otherwise would
fly in the face of the provisions of Article I, Section 11 of New
York
Dock II.
Article I, Section 4 of New York
Dock II
provides for notice
and states:
Such notice shall contain a full and adequate statement
of the proposed changes to be affected by such transaction,
including an estimate of the number of employees of each
class affected by the intended changes.
Another Committee has construed this requirement to include a
"list [of) the positions to be abolished, the names of the
regular occupants, hours of assignment and rest days. (Southern
Railway and Railroad Yardmasters, Robert E.. °ecerson, arbitrator,
May 24, 1982.)
In many of the cases cited by the Carrier it was cl_ar which
employees were affected
facility. In this case,
because of the abolition of a particular
however, because of the nature of the
change in operations it is not clear exactly which jobs will be
affected. Accordingly, any list that the Carrier might make will
only be an estimate of those affected and cannot be considered to
be a finding on the part of the Carrier that an individual
employee was in fact affected. However, descite the Carrier's
reluctance to admit that the change in opera=ions had any affect
on the employees of the Eastern Lines, it, is clear that the
rerouting of traffic must have had some affect and that New Ycrk
Dock II requires a best faith estimate by the Carrier. The
Agreement will require a list or lists of affected employees.
r
·~ganization requests that Section 1 contain a
requirment for posting on all employee bulletin boards of
"potential earnings of all yard and road assignments on the
involved seniority districts in $50.00 increments to Re used as a
guide for employees to evaluate seniority and compensation." The
Carrier objects to the section as unnecessary, yet as pointed out
by the organization, Section 5(b) of Article I of New York Dock
provides for offset where a displaced employee fails to
exercise seniority and changes his place of residence.
Accordingly, such a provision will be included.
The Carrier objects to proposed Section 2 because it would
require the Carrier to furnish to the Organization information on
test period earnings for individual employees. The Carrier would
furnish the test period earnings where there is a disputed claim;
howeA,lr, it indicates that to do so in all cases would violate
the employees' right to privacy. The Committee believes that
this argument is without merit, since the Organization is the
duly chosen collective bargaining representative of all employees
in the craft or class.
The Carrier indicates that it will agree with the
Organization proposal for Section 3, if the claim is denied by
the "highest designated officer". This suggestion of the Carrier
has merit and will eliminate controversy as to when and why a
claim is denied.
In Section 4, the Organization wishes the Carrier to make
available where there is a dispute as to the accuracy of
computation of "average monthly compensation" or average monthly
time paid for", certain records so as to "make a determination
with regard to the dismissal or displacement allowance due." The
Carrier claims that it "is under no legal obligation to grant the
Organization carte blanche access to its records". It states it
will accept the type of language contained in
AMTRAK Case No.
The organization on the other hand states: "There is no
valid rason for the Carrier's objection as Local Chairman now
have access to the referenced records." The Committee will
dire~t that appropriate records be made available to the
1
Organization to ensure that disputes over test period earnings
may be resolved. As noted earlier in this decision, this case is
unusual in that the notice of events is occuring three years
after the events actually took place and is not prospective as
was intended by the ICC when it imposed New York Dock II
conditions on the transaction.
The Carrier further objects to proposed Sections 4(a) and
(c) as being in the way of penalties. The organization counters
with the statement that these sections "will merely make the
employees whole until such time as the Carrier complies with the
requirements of NYD II." In the Committee's view, any payments
which nay be made must be made either at the volition of the
Carrier or because of an adjudication in accordance with Article
I, Section 11 of New York Dock II. Accordingly, these
subsections will not be included in the Implementing Agreement.
The organization proposed in Section 4(b) that in order to
maximize seniority, the Carrier will advertise all assignments
for seniority choice for a period of seven days. The Carrier
made no comment on this suggestion and it is therefore included
in the Implementing Agreement.
Article IV
Sections 1, 2, and 3 of this article deal with the elections
that an individual employee must make if entitled to two
benefits. The Carrier objects to the Organization's statement of
these provisions which are contained in Section 3 of Article I of
New York Dock II. The Carrier does not object to the statment of
Section 4 which indicates that there shall be no duplication of
protective benefits by any employee.
Since these are a restatement of the actual language of
York Dock II, the Committee believes it will be best if tt,e
actual language of New York Dock II speaks for itself.
In Section 5 of the proposed article the organization
attempts to deal with the method of determining the "average
monthly compensation" and the "average monthly time paid for" of
"Carrier Officers, supervisory officials or organizational
representatives" who are forced to exercise seniority rights.
The Carrier objects to the inclusion of language regarding
company officials and cites a decision by Referee Lamont
Stallworth involving Michael J. Topolosky and the Union Pacific
Railroad as precident for its views. That case is inapposite.
It deals with the question of who is ar: "employee" for purposes
of coverage under New York Dock II. The provision requested by
the organization concerns the determination of income where
management officials wish to exercise their "bumping rights"
because of a covered transaction. Likewise, the Organization's
wish to clarify the same question regarding organization
representatives is objected to by the Carrier for several
reasons. First, the Carrier states that the compensation is
clearly that for "service performed by the employee for the
company..."; second, that there is "no provision for the
substitution of another employee's earnings in order to calculate
the earnings of a union representative or any other employee";
and finally, "union representatives serve of their own volition
and the Carrier is under no obligation to subsidize them for
wages lost through their own voluntary actions."
The Committee does not believe that these arguments stand up
to careful analysis. Clearly, it was the intention of the ICC to
protect all employees of the Carrier who are affected by a
covered transaction. Individuals who are on leave of absence or
other arrangements voluntarily entered into by the Carrier with
its Organizations do not lose their status as employees, yet the
Carrier by its argument would have them lose many of the
advantanges of that status. The Committee cannot believe that
this could have been the intention of the ICC. Accordingly, the
suggested coverage contained in Section. 5 will be included in the
Implementing Agreement; however, the same rules will apply to all
employees and there will not be a special formula to compensate
"other than 'full time' organization respresentatives".
Article V
The Organzation proposes the manner in which claims under
the Implementing Agreement will be handled. The Carrier objects
to the second section because it allows direct appeal to Labor
Relations. It provided alternative language to which the
Organization objects.
It is the Committee's view, consistent with like decisions
in other similar cases, (see UTU and ICG, Rasher, referee), that
the collectively bargained provisons will be applicable.
Ldtd-C.19VI
The Organization proposes certain reimbursement of
expenses and compensation for the sale of a home by an employee,
which the Carrier finds to be objectionable as changes in the
substantive benefits contained in Article I, Section 12 of
New
York Dock II.
The Committee finds merit to the Carrier's position and
Article VI as proposed by the Organization will not be included
in the implementing Agreement. The provisions of Article I,
Section 12 will govern payments caused by losses from, home
removal.
Article VII
This article was found to be procedurally barred in the
Committee's earlier award. It will not be considered here.
Carrier proposals
The Carrier in its Procedural Submission raised the
defiritional question of what consitutes a "dismissed
emp~oyee". The Committee finds that this is a question which is
bettIr left to the working of individual arbitration awards in
accordance with Section 11 of Article I of
L:ew York Dock II.
The Carrier next proposes certain language regarding
furloughed employees. The Organization objects to the language
as being outside the scope of New York Dock Ii. The Committee
believes that this language would substantively modify the
protections offered-to employees by the ICC and therefore cannot
adopt it.
AInally, the Carrier asks that this Corr.,ittee rule that the
Implementing Agreement rendered herewith apply only to those
employees holding seniority on the effective date of this
Award. As indicated in the early Award of this Committee, that
matter is one to be determined under a Section. 11 proceeding and
not under this Award.
wa
The text of the arbitrated Implementing Agreement provided
for in accordance with Article I, Section 4 of
t:ew
York Dock II
as directed by the ICC in Finance Docket No .28799 is attached
hereto as an appendix to this award.
C. L. Little
Organization Member
(Concur/Gleeent )
December 23, 1985
Robert.0. Harris
Neutral Referee
C. R. Huntington
Carrier Member
n r is~ nt)
Implementing Agreement
Arrived at through Arbitration pursuant to
Section 4, Appendix III, Nee. York Dock II
WHEREAS, On December 29, 1978, the St. Louis Southwestern
Railway Company and its Corporate parent, the Soutern Pacific
Transportation Company, filed application pursuant to 49 USC
11343 to purchase a portion of line of railroad from the bankrupt
Chicago, Rock Island and Pacific Failroad Company. This portion
of railroad line extend:, from Santa Rosa, New Mexico, to St.
Louis, Missouri, via Kansas City, Missouri, a total distance of
nine hundred sixty-five and two-tenths rsiles;
AND WHEREAS, On June 6, 1980, the Interstate Commerce
Commission approved the preceding application pursuant to ICC
Finance Docket No. 28799;
AND WHEREAS, The ICC Order imposed employee protective
conditions as set forth in New York Dock Rv.Cqntrol - E_Eooklvr,
Eastern District, 354 ICC 399 (1978), as modified in 360 ICC 60
(1979), copy attached as Appendix A;
AND WHEREAS, On January 6, 1983, the Southern Facific
Transportation Company implemented a modified operation pursuant
to the above described transaction and the authorization
contained in ICC Finance Docket No. 30000, without written notice
of the transaction to the employees or their representatives;
AND WHEREAS, On February 4, 1985, an Arbitration Comr.ittee
established under the provisions of
New vcrk Dock II decided that
Southern Pacific Eastern Lines employees, represented by the
United Transportation Union, are subject to the protective
conditions pursuant to ICC Finance Docket No. 28799.
ARTICLE: I
The labor protective conditions set forth in the
New York
Dock Railway Control, Brook
lyn Eastern District, 360 ICC 60
(1979), hereafter referred to as
New York Dock II, imposed by the
Int rstate Commerce Commission in Finance Docket No. 28799 (Sub.
No. ) and related proceedings, and which are attached and made a
part hereof as Appendix A shall be applicable to employees
determined to be "displaced employees" or "dismissed employees"
as a result of the transaction.
AR~iICLF II
Section 1. On the effective date of this Agreement, the Southern
Pacific Transportation Company will give written notice of the
transaction by posting a notice on all employee bulletin boards
convenient to the interested employees and by sending, registered
mail, notice to the representatives of the interested
employees. Separate notice will also be sent to each interested
art-ployee in a cut off or furloughed status. Such notice shall
contain a full and adaquate statement of the changes effected by
the transaction, including an estimate of the number of employees
of each class of service affected by the changes.
Implementing Agreement
Section 2. The Carrier shall make available copies of this
implementing Agreement at all on and off duty points to employees
working in the affected seniority districts. It shall also make
available, upon request, copies of this implementing Agreement to
all employees in a cut off or furloughed status.
Sect on 3. The Carrier shall, as soon as feasible, furnish the
Genets Chairman, representing the covered employees, a list of
the positions affected as well as the names of the regular
employees it believes to have been affected by the transaction.
Article IZT.
Section 1. The Carrier shall post on all employee bulletin
boards, as soon as feasible, the potential earnings of all yard
and road assignments on the ir.ve1ved seniority districts in
$50.00 increments to be used as a cui6e for erF.loyees to evaluate
seniority and compensation. Such information will be only for
the guidance of protected employees and will rct be construed as
a guarantee that any assignment will earn the amount specified.
Section 2. The Carrier shall, as soon as feasible, furnish to
each individual employee, and the General Chairman representing
the covered employees, a statement or statements setting forth
the "average monthly compensation" and the "average monthly time
paid for" as those terra= are defined in New ,crk Dock _11,
Appendix III, Article I, Section 5(a) and Section 6(a) for the
employees listed by the Carrier as affected employees under
Article II, Section 3, of this implementing Agreement.
Section 3. The Carrier shall within ten (10) days of receipt of
a claim form from any employee claiming a "displacement
allowance" or "dismissal allowance" furnish to the employee
submitting the claim form, and to the General Chairr.an
representing the covered employee, a statement or statements
setting forth the "average monthly copmpensaticn" an% the
"average monthly time paid for" as these terrs are definied in
New York Dock II, Appendix III, Article I, Section. 5(a) and
Section 6(a), as well as the total hours paid for during the
claim month.
Any claims declined or adjusted may be appealed to the highest
designated officer who shall upon review include a sF.Fcific
statement as to the reason or reasons for sect, declination or
adjustment.
Section. 4. Should a dispute arise as to certification of any
employee(s), or as to the accuracy of computation of "average
monthly compensation" and "average monthly time paid for" or
calculation of monthly compensation or total hours paid for, the
Carrier shall make available to the General Chairman representing
the employee(s) such company records as shall be needed, and not
otherwise available to the General Chairman, to make a
determination with regard to the dierissal or displacement
al 1owance due. Unnecessary and arbitrary requests for
information shall be avoided.
Implementing Agreement
To insure that all employees will have the opportunity to
maximize their seniority, the Carrier will, on the date the
potential earrings of all yard and read assignments on the
involved seniority districts are posted, advertise all
assignments for seniority choice for a period of seven (7) days.
Article IV
Section 3 of New York Dock II shall apply to Carrier Officers,
supervisory officials and organizational representatives who are
forced to exercise seniority rights subsequent to a transaction.
covered by this agreement in the same manner as to other
"displaced" or "dismissed" employees. Any individual who
exercises such seniority shall have his average monthly
compensation and average monthly time paid for calculated as the
average of the two (2) protected employees immediately above an
c:
below him on the same seniority roster. In the event that an
employee's actual monthly compensation or average monthly time
paid shall be higher than the averace of the inCividuals above
and below him on the seniority roster, such individual shall have
the right to have his actual monthly compensation. or actual
average monthly time paid for utilized to calculate his
allowance.
Article y
Section. 1. Each affected employee shall subrit to the Carrier,
in the same manner time returns are submitted, a "monthly claim
forr." for each month benefits are claimed. The form utilized
shall be one mutually agreed upon, similar to the form submitted
by the orcanization in this proceeding.
Secti`qn 2. Claims for benefits under t;ew York Dock II, A.PEendi>.
jJj ahd this Agreement will be handled under the respective time
limits on claims rule applicable to each craft or class of
service the same as with respect to other claims or grievances.
Section 3. The time limit on claims rule applicable to the
respective crafts or classes of service will not apply to claims
presented for protective benefits for months prior to this
implementing Award until the effective date of this Award.