In the Matter of the Arbitration between:




OPINION AND AWARD

 Introduction
IOC Finance Docket No. 29772

 Claim under New York Dock
 Labor Protective Conditions
·_~·tive conditions established in IOC Finance Docket 28250, New Ycrk Dock Railway - ,,;·::trol - Brooklyn Eastern District Terminal (1979) , the undersigned was nominated by
 ·,.,~ National Mediation Board to serve as Arbitrator in the above-captioned matteg.
 a hearing was held on September 25, 1984, at the-offices of McClung, Peters, S=.mom ana Arensberg in Albany, New York, The Company was represented by Mr. Byron E. Pace, Jr., Vice-President for Human Resources, and Donna Gilchrist was represented by Mr. Lewis Baisden, General Chairman, Brotherhood of Locomotive Engineers, Delaware and Hudson System, who was retained by her attorney, Homer Z. Peters, Esq.
 The parties waived the provision in Article I, Section 11, for a three-member arbitration committee and agreed that the undersigned would serve as a single Arbitrator. Both parties presented oral explanations of their written submissiors, _nciuding arguments and exhibits. 14s. Gilchrist testified at the hearing and was cross_xamined by the Company. A transcript was prepared and received on October 20, 1984 by the Arbitrator, who declared the hearing closed as of that date.

 Hackaround and Issue
The case arose under IOC Finance Docket No. 29772, decided July 23, 1982, in which :re Commission approved the acquisition of the Delaware and Hudson Railway Company ( D,~:: or Company) by Guilford Transportation Industries, Inc. (GTI), subject to the :,e:q York Dock Conditions (NYDC) to protect employees adversely affected by the acquisition. .
 With the control of D&H, which became effective January 4, 1984, GTI completed the j o ni n g of three railroads under its Rail Division. The other two were acquired earlier: the Main Central Railroad Company (MCR) in 1982 and the Boston and Maine Corporation (B&M) in 1983.
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 Donna D. Gilchrist (claimant or grievant) was first employed by the Company in 1977 in a clerical position covered by a labor agreement. She was subsequently proi,-,cd to the position of Secretary in the Executive Department. When the GTI take 7,vur occurred in 1984, she was Secretary to D&H President C. R. McKenna and classified as a management secretary outside the bargaining unit. C n March 28, 1984, Mr. McKenna ac,c,Dunced that he was closing his office in Albany and that her position was being atolished. Mr. McKenna became President and chief operating officer of the combined :tail Division, effective July 1, 1984, with his primary office at the former BdaM headquarters in North Billerica, Massachusetts. According to the change-of-payroll Form 1380A, the last day worked by the grievant was March 30, 1984, and following -rue creeks' vacation earned in 1983 her employment was terminated as of

 The parties agree on the issue before the Arbitrator:



The remedy requested is a lump-sum payment under Article I, Section 7, of the ;cw York Dock Conditions. According to the grievant, if she had been notified that _.;._ was covered under NYDC at the time of dismissal, she would have opted for the _:partition allowance identified as a payment "computed in accordance with section 9 of the Washington Job Protection Agreement of May 1936." The following schedule is presented as a guide to the computation and is not disputed by the Company. Based on this schedule, her employment from 1977 to 1984 would qualify for 12 months' pay niter 5 to 10 years' service..

 Length of Service
1 year and less than 2 years
 2 years and less than 3 years
 3 years and less than 5 years
 5 years and less than 10 years
 10 years and less than 15 years
 15 years and over

 Separation Allowance






Portions of ICE Finance Dockets
Interstate Commerce Commission Finance Docket No. 29772, Guilford Transportation industries, Ins. - Control - Delaware and Hudson Railway Company, decided July 23, 1982. It is ordered:








Interstate Commerce Commission Finance Docket No. 28250, New York Dock Railway - :cntrol - Brooklyn Eastern District Terminal, decided February 9, 1979.

 APPENDIX III

 Labor protective conditions to be imposed In railroad

 truncactions pursuant to 49 U.S.C. 11343 et spec'.

 1. Definitions.-(a) "Transaction" metsna any action taken pursuant to authorizations of this Commission on which these provisions have been imposed.

 (c) "Uismiosed employee" means an employee of the railroad who, as a result of a transaction is deprived of employment with the railroad because or the abolition of his position or the loss thereof as the result of the exercise of ;seniority rights by an employee whose position is abolished as a result or a transaction.

 ?. joparatiOn a11owADCA.- A dismissed employee entitled
 to protection under this appendix, may, at his option within
 7 days of his dismissal, resign and (in lieu of all other bnnn
 rits and protoctions~providod in this appendix) accept a lump
 gum payment computed in accordance with section 9 of the Wash
 ington Job Protection Agreement of Hay 1936.

 ·1. Arbitration of dimputes.- (a) In the event the railroad and its omployRes or their authorized rosprosontativos cannot settle any dispute or controvesy with respect to the interpretation, application or enforcement of any prevision of this appendix, except section 4 and 12 of this article I, within 20 days after the dispute arises, it may be referred by either party to an arbitration committou.

 (e) In the event of any dispute as Lo whether or not a particular employee was affected by a transaction, it shall be his obligation to identify the transaction and specify Lhn pertinent Pacts of that: transaotinn relied upon. It shall thrtn be the railroad's burden to prove that factors other than a transaction affected the employee.
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Employees of the railroad who are not represented by a labor organisation shall be afforded substantially the same levels of protection as ace afforded to members of labor organizations under these terms and conditions:
In Llica event any dispute ac controversy arises between the railroad and an employee not ropcesented 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 day:: after thn dispute arises, either party may refor the diopute to arbitration.
Discussion
'1:ic dates arxl sequence of events leading to arbitration are not in dispute. A brief chronology summarizes the details of Ms. Gilchrist's work history as provided by the parties:

 September 1977 Employment as Stenographer in Sales and Marketing.
 December 1979 Promotion to Secretary in Executive Department.
 Major portion of work for Assistant Vice-President
 Richard E. Long.
 December 1, 1983 Promotion to Secretary to President C. R. McKenna.
 March 28, 1984 Verbal notice that position was abolished with
 closing of President's office in Albany.
 Written notice to Secretary Anne Pope, covered by
 BRAC agreement, that position was abolished "due
 to economic conditions."
 April 4, 1984 Letter to DdrH Director of Labor Relations M. F. Melius
 requesting benefits under NYDC.
 May 1, 1984 Reply from 14. F. Melius, stating that termination was
 not related to ,a '1transaction!' under NYDC and that
 position was abolished "because of adverse financial
 conditions."
 May 14, 1984 Request for arbitration of employee's claim.

 Certain other facts are also not in dispute: Where the grievant files her claim a 'dismissed. employee" under the NYDC definitions, there are no disciplinary implications in the termination of her employment. Further, as a managerial secretary, °",s. Gilchrist claims no seniority rights under a labor agreement. Although she refers to work performed by a "junior" employee, there is no issue before the Arbitrator . relating to access to a bargaining-unit roster .
The issues that are in dispute relate to the Company's basis for abolishing her position as Secretary to the President, essentially whether the reason was economic or caused by the GTI acquisition and associated Company actions.
 ms. Gilchrist contends that during the consolidation of the three railroads, other employees were dismissed with protective settlements or transferred and kept on D&H payrolls. According to her position, while the Company was authorized under the ICC approval to reduce and realign its work force, the purpose of the New York Dock Conditions was to protect employees adversely affected in the process. As far as her job is concerned, the grievant argues that the closing of the President's office is understandable to avoid duplication with a single President for the three systems, but the Company's action constitutes a '1transaction!' under NYDC definitions sc,Ll ht: was adversely affected.
 'i'he Company maintains that ICC approval of the GTI consolidation and imposition ,ci New York Dock Conditions does not provide blanket protection to employees for all carrier actions. According to the Company, in this case there was a succession of job abolishments caused by a severe decline in business, which affected her position along with others. Following the reasoning of other arbitration awards under New York .)ccR Conditions, the employer argues that the grievant has a burden to prove a ,,causal nexus" between the GTI acquisition of D&H and the abolishment of her job. In ;,nL ;ompany's view, the relationship has not been proved.
 The position:, of the parties lead to an examination of their arguments under the f ollowing headings:

 1. Occurrence of a "Transaction.,,

 2. Economic Conditions.

 3. Relationship to the Acquisitionand Consolidation.
Cccurrence of a "Transaction"

 The Company cites Article I, Section 11 (e), of the New York Dock Conditions, ,:rice is repeated here for convenience:

 In the event of any dispute as to whether or not a particular employee was affected by a transaction, it shall be his obligation to identify the transaction and specify the pertinent facts of that transaction relied upon. It shall then be the railroad's burden to prove that factors other than a transaction affected the employee.

 I'r= Company argues that Ms. Gilchrist failed to identify the transaction that affected r.~-r employment. In particular, the carrier quotes from Attorney Peters's letter of :jai 31, 1984, that "approval of Finance Docket 29972 /-sic7 by the ICC and the employee protection provided proves the inaccuracy of" Mr. Melius's statement that NYDC did not apply. The Company also points.to a statement in the grievant's submission that: "The approval of Finance Docket 29772 in itself constitutes a transaction as defined within the 'New York Dock Conditions'." According to the Company, the claimant
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 incorrectly assumes "blanket and uncorrlitional protectiorYl as a result of the ICC approval of the Finance Docket.
 The Arbitrator agrees with the employer that approval of the Finance Docket by iLSClf is not a_ 11transactiod· that affected the employee. However, the letter of Aay ?1, 1984 prior to arbitration need not be considered the primary basis for the ;-ricvant · s claim, and the statement in the grievant's submission follows recognition that the ICC referred to the acquisition of control by GTI as a transaction;/consoliaation. Unlike other arbitration case:, submitted by the parties, this matter involve '-h;: special circumstance of a non-agreement position, where the employee pursued her claim without representation by a labor organization experienced in handling New York rock Conditions. She did not receive vTitten notification of an intended transaction such a:. that required in NYDC Section 4 to provide negotiations with employee repre.::;ntatives. The Company states without contradiction that notice was not required .n this case. As a result, the facts relied on by the grievant were not fully ,,eveloped until the arbitration proceeding.
 The Company cites an arbiration case between the-Chicago and North Western :'ransportation Company and the American Railway Supervisors' Association (1980), ,.::acre Arbitrator Richard R. Kasher found "no argument or evidence introduced to /the7 :-~mmitteel' to support the obligation of the Organization under Section 11 (e) of
 While it will be seen below that the argument and evidence in this case warrant a different conclusion, it can be noted that the Kasher committees findings were cased on testimony and documents presented at the arbitration hearing. Similarly, ,tie Arbitrator here is not bound by preliminary statementsof the grievant's claim but has considered the detailed presentations of both parties at the hearing.
 In identifying a transaction, the claimant points to Finance Docket No. 29772 to show that the ICC uses the term "transaction" in-examining events. that gave rise to this case. A few illustrations follows

-".e claimant adds that ICUs discussion of the Company's intent to consolidate pursuant to the Finance Docket is based on information supplied by the Compaq itself.
 The Arbitrator observes that acquisition of DdcL by GPI is clearly treated as a transaction by the Commission. The first statement in its concluding findings is: "We find that, subject to the terms and conditions discussed above, (a) acquisition by GTI of Ddd-I is a transaction within the scope of 49 U.S.C. 11343. . . ." Consolida tion efforts anticipated in the Finance Docket would require further transactions under ':,,c definition in rIYDC, Article I, Section 1, that is, actions taken pursuant to -,-thorization under the Finance Docket. Such transactions occurred when GTI combined ... -,:.ccutive anti administrative office:, of 11tH with tho3e of the other two railroads. ';;using the Albany office of the President was one of several actions taken before aryl a;t:r the actual acquisition to realign Company facilities and staff under GTI's Fail ~). vision.
 Contrary to the Company's charge of failure to identify a transaction under Section 11 (e) , the Arbitrator finds that closing the Company President's office was a transaction that could have caused Donna Gilchrist's dismissal. The essential question of whether this action by the Company actually caused the abolishment of her ,~osition is considered below. First, in accordance with Section 11 (e), the carrier ;,resents its argument that the Company's financial picture caused the grievant's Z,or;nination.

 '.:conomic Conditions
in his letter abolishing the position of Secretary Anne Pope, General Superinten~e:it C. P. Belke cited "economic conditions." Donna Gilchrist was not offered an _,:u.Lanation until she wrote to M. F^. Melius, who replied:

 Your position was abolished because of adverse financial conditions on the Delaware and Hudson Railway Company. These conditions required an overall retrenchment of forces and realignment of work among remaining Delaware and Hudson employees. In your particular case, certain positions and functions that you formerly supported, such as the special assistant to the President, the General Manager and the Industrial Engineering function, were eliminated.

 In support of its claim of poor financial health, the Company submits data showir-, for the years 1979 through 1933, losses in net income and cash income and declines in amploynent and car loadings. The grievant supplies information from the New York State -epartment of Transportation shoring increases in car loadings for the first four r.%rnhs of 1984 over the first four months of 1983. The Comparry does not dispute ,:rese figures but indicates that income figures barely turned from negative to positive balances.
 The Arbitrator notes that D&H demonstrated financial difficulties to the ICC in 1982 in the Finance Docket. To repeat a statement quoted earlier from the decision: The primary public benefit of the proposed transaction is the lifeline it will provide to the ailing D&H. Absent this consolidation, it is unlikely that D&i could continue to operate in light of its continuing losses and negative cash flow. .,::I:arently an expected "infusion of energy, capital, and management experience" by
 . _ c:~ well as run-through trains and minimum duplication u2thin the combined system produced the desired turnaround in 1984.
 The Company Stresses the need to relate a transaction to the claimant's loss of employment. Similarly, it is important here to relate the changing economic picture
 Donna Gilchrist's employment. Shc was hired in 1977 and worked regularly during years 1979 to 1983, when Company losses increased from $8 million to $16 million. was terminated in March 1984, when economic conditions ~rrere not as severe. The .;iainant presents a persuasive argument that she worked "regardless of the ebb and `_"low of traffic" until GTI consummated the acquisition of D&H in 1984 and changes :,--:c;.rred in the President's office.
 The Company contends that restructuring efforts took place internally to overcome economic conditions. For example, when Ms. Gilchrist was appointed Secretaz^j to Mr. McKenna in December 1983, the prior Secretary was transferred to the Engineering Dcpartment, leaving one less position in the Executive Department. The Company lists :.roe management people for whom Ms. Gilchrist did work because of minimal support ;r_:.rf and indicates that they have been reassigned in D&H, transferred to ;forth :'ilierica, or separated from the Company, and therefore no longer require her services.
 The Arbitrator believes, however, that the grievant's position after December 1983 was not dependent on the situation of people she worked for earlier or on an ~r.:'ormal basis as needed. Although she continued doing work especially for R. . Long ..: a long-distance basis, after becoming Secretary to the President she was assigned
 -~c.cifically to him. The Company does not dispute either Mr. McKenna's reported statement that she was working directly for him or the grievant's statement that she reported only to him. The evidence shoc-:s that Donna Gilchrist's position was not abolished until the President's office was moved; literally, her last day of work was Friday, March 30, prior to the move scheduled for Monday, April 2, 1984.
 With regard to the Company's claimed basis for its action, the Arbitrator concludes that elimination of the position of Secretary to the President was caused not by adverse economic conditions or overall retrenchment of forces, but rather by the moving of the President's office to North Billerica to establish his headquarters as President of the combined Rail Division.
 Relationship to the Aceuisition and Consolidation
The Company introduces a series of arbitration awards establishing the need for claimants under NYDC to prove a "proximate" or "causal" nexus between a transaction and t;:e adverse effect on their employment. The reasoning of eight different arbitrators -an be illustrated by a few quotations:











This Arbitrator does not disagree with the basic principle enunciated or its .,ppiicability to the case at hand. As it happens, in the cases cited by the Company a causal relationship was not proved, but the evidence in this case establishes the necessary link between a consolidation transaction of the Company and the adverse

 effect on the claimant.

 As pointed out above in the discussion of economic conditions, the key factor :zere is the nature of Ms. Gilchrist's singular position as Secretary to the President. At the time of her dismissal, she was not one of a group of clerical workers assigned to a department. I n December 1983 her responsibilities changed, and the Form 1380A shows an increase in monthly salary from $1957.99 to $2079.05. It is evident that the
 ?resident required the services of a Secretary in good times and bad. Regardless of reductions in other administrative positions, it is unlikely that the top executive
 officer would operate vrithout clerical assistance or, in the words of the claimant's
 representative, work "in a void." It can also be noted that the secretary's position
 is not an independent office that exists apart from the function of the supervisor
 whom the employee reports. Donna Gilchrist's position, then, has to be viewed as
 closely related to and dependent on that of the President.
 Juring the period following approval of the Finance Docket in 1982 and continuing sitcr the actual acquisition in 1984, the Company was involved in a variety of actions :o restructure, realign or reduce its work force. Some of the actions may indeed have b::en to overcome financial problems, as argued by the Company, and some were required to consolidate function:: previously performed by three separate systems. One effort ,,:as to centralize executive headquarters for the Rail Division, including naming C. Ft. McKenna as President for the combined operation. While changes in other c1cpartments and positions are introduced by the parties, the Arbitrator focuses here ::: -decisions affecting the President's office and therefore the grievant's position.
 There is no doubt that moving the President's office to North Billerica wa&-a - ";ran.saction'' carried out by the Company to accomplish the consolidation authorized by ;,ac: Commission. Whcn the office in Albany was closed, the impact on Donna Gilchrist's ~.mployment was direct and immediate; her function was eliminated and her position was abolished. Roth parties acknowledge that President McKenna maintains a subsidiary uifice near Albany in another Company facility. Evidence is not provided on the nature of clerical services performed at that facility. But, for purposes of this case, it is established that, in preparation for Mr. McKenna's assuming the presidency of ;,:.e combined Fail Division, the Company decided to eliminate the executive office in Albany.
 The carrier argues that since it had the right to abolish the claimant's position ;,nrough restructuring prior to the GTI acquisition, exercise of the right after the acquisition did not require ICC approval and did not trigger protection under NYDC.
 The Arbitrator is convinced otherwise, that the grievant's position was not abolished through general restructuring of DdH forces but came about as a direct result of consolidation in the office of President. Therefore, the Arbitrator finds ti:at Donna Gilchrist has shown the causal link between a "transaction" under New York cc.-. Coalitions and the abolishment of her position.
 AWARD

 The action of the Delaware and Hudson Railway Company constituted a transaction pursuant to Appendix. III, Labor Protective Conditions, 1Jcw York Dock Railway - Control - 9rooklyn :astern District Terminal, when the office of said Company President was closed and the Cemparrj dismissed Donna Dae Gilchrist effective on April 20, 1984.

 2. Therefore, Ms. Gilchrist shall be awarded a separation allowance
 as provided in Section ? of Appendix III, Labor Protective Conditions,
 computed in accordance with Section 9 of the Washington Job
 Protection Agreement of May 19?6.

 Gla4s Gershenf eld

November 19, 1984