ARBITRA71ON PURSUANT TO SECTIONS 11(a) and (c)
OF THE NEW YORK DOCK CONDfIONS
In January of 1984 the Organization submitted a claim on behalf of twenty-three Employees asserting that the acquisition of the Boston and Maine Corporation (BM) by Guilford Transportation Industries On) enabled the BM and the Maine Central Railroad Company (MC) to operate as an end-to-end rail system, creating run-through trains and it eliminated substantial amount of work for PT Employees assigned to Rigby Yard. The Organization concluded that the employees who have been furloughed by PT since the beginning of run-through service (August 11, 1982) must be considered as having been placed in a worse position with respect to their compensation and accordingly they are entitled to displacement and dismissal allowance under Sections S and 6 of the New York Dock Labor Protective Conditions.
The undersigned was designated as Arbitrator by the parties and a hcarire :gas conducted in Boston, Massachusetts on July 12, 1984; at which time all parties wMIL represented and ample opportunity was afforded for presentation of evidence, testimony
and argument.The psrtiea have submitted submissions, and documents, rebuttab and argument; all of which has been considered by the Board. STATEMENT OF ISSUE
The Portlant Terminal Company (PT) was a wholly-owned subsidiary of the Maine Central Railroad Company (MC) and Rigby Yard is a major classification yard and interchange point of the terminal company. In fact, the Yard comprises most of PTs property and faeilitv.
Guilford Transportation Industries (GM) acquired MC (and thus PT) on June 16, 1981. Approval by the Interstate Commence Commission (ICC) was neither required nor sought and thus, no labor protective provisions were mandated.
GTI subsequently acquired Boston and Maine Corporation (BM) and the ICC approved that acquisition an AprU 23, 1983 (Finance Docket 29720-SUB-No. 1) The ICC imposed the "New York Dock" Labor Protective Provisions.
A rennanization court approved BM's don on June 30, 1983 and that date finalized GTrs common control of the various Carriers.
A notice was posted concerning maintenance of way employees on May S, 1962 and theratter the General Chairman requested (May 9, 1983) that the Carrier furnish certain information since it disputed the Carrier's position that the reduction and consolidation of force. at PT was ". . .caused by ecc~rwmic conditions and has not affected the operations and charges which have caused a consolidation and reduction of (area of the Maintenance-of-Way Employees at the Portland Terminal Company." (See Careise's Exhibit H).
On June 3, 1983 the Director of Human Resources advised the Organization that it continued to be the Carrier's position that any force reduction at PT was the ". . .direct result of the severe decline in business and has no relationship whatsoever, to ICC Pinance Docket No. 29720. . " (See Carrier's Exhibit 0).Although the Carrier indicated that two PT trackmen would be affected as a result of the approved transaction, it continues to deny that the remaining twenty-one trackman were furloughed u a result of Carrier's pee-Wocking of trains.
Although the Carrier concedes that it established run-through trains in 1985, it asserts that sold action did nut eliminate the work of any maintenance-of-way employees and it claims that there was no substantial change in the work of PT trackman since no trackage was abandoned as a result of run-through trains. At the time, according to the Carrier, the run-through trains (allegedly a common intemileoad practice) was the action of two independent Carriers outside of any common control of MC and BM by GTI. Moreover, the Carrier notes that no ICC approval is required for such service modification.
The Carrier has rot denied that a number of PT maintenance-of-way employees have been furloughed since 1982 but it contend: that numerous employees, in all crafts, have been furloughed and then was an employee decline of thirty-one percent (3196) as a direct result of a severe recession in 1982 and increased competition by motor carrier and rail deregulation.
The Carrier notes that the Employees are required to relate the furloughs of any specific employees to a "transaction". Article 11 (e) of the Labor Protective Providotr states
"In the event of any dispute as to whether a 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 Railroads burden to prove that factors other than a transaction affected the Employee.
A "Displaced Employee" and a "Dismissed Employee" under Sections 1(b) and (c) are Employees who are placed in a worse position or deprived of employment "as a result of a transaction".
the Carrier has stressed that numerous Arbitration Awards have required that there be a "causal nexus" between the "actual consolidation and the Carrier action at issue" and they have held that "every action initiated subsequent to a merger cannot be considered, itso facto to be 'pursuant toy the merger" See for example Missouri Pacific Railroad and American Train Dispatchers Association - New York Dock Arbitration. In fact, most Arbitration Awards concerning New York Doric and other Labor Protective Provisions have determined that then must be a "direct connection" or a "direct result" between the "transaction" and adverse personnel action.
It is conceded by both parties that acquisition accommodates end-torend rail connection but again, the Carrier stresses that Railroads do not require common control in order to operate nun-through trains.
The Carrier also stresses the fact that the organization has not identified the "allegedly" affected Employees with the "asserted" transaction and since there has been a significant ilunration of employment among maintenance-of-way forces over the years, the Carrier insists that such an identification is mandatory.
The parties negotiated an Implementing Agreement on August 9, 1983 subsequent to a March Z!, 1983 notice of intention to rearrange track sections under the February ?, 1965 National Agreement. Thus, the Carrier argues that the Organization was fully aware that 54 maintenance-of-way employee would be furloughed, system wide, as a result of the Agreement and in fact, over a two-month period, track sections were
rearranged pursuant to the Implementing Agreement and SO Employees were furloughed. As a part of that negotiation, the Carrier granted certain demands to the Organization.
Concerning the specific facts surrounding the run-through operation, the Carrier insists that the total operation at Rigby Yard was much larger than the number of cars handled by run-through operations. No tracks were retired or abandoned in the Yard as a result of the run-through operation and, according to Carrier, no maintenance schedules were altered in the Yard as a result of the run through. In short, the Carrier insists that the direct impact of run-through train on the Maintenance-of-Way craft was "nil".
The Carrier also argues that run-throughs have been utilised since as early as 1980 from time to tine concerning the BIN and MC without the need for ICC approval. There were no labor protective conditions imposed, nor was there protest by LeDor organisation.
Thw for all those various reasons stressed in the oral hearing as well as in its written submissiar, the Carrier urges that the Board find no "transaction" and that we deny the Organisation's el,sim.
The Organization notes that one year prior to the Implementing Agreement the Carrier started operating run-through trains which eliminated the need to perform blocking operations at PT and because the Carrier had aesertedly indicated in its paper before the ICC that said action was ". . . one of the major benefits to be derived from the acquisition, . . . " the Organization submitted these claims on behalf of all employees who had been furloughed from PT after commencement of the run-through operation. The Organization stresses that the operating plan submtted to the ICC ccracerning GTrs ultimate acquisition showed that the prime benefit would be an integrated operation.
The Organization also stresses the "burden of proof" concepts set forth in the Labor Protective Provisions and the Organization emphasises that it is merely necessary for the Employee to identify the transaction and the facts upon which he relies at which time the burden switches to the railroad to prove that factors other than a transaction affected the Employee. The Organization claims that its obligation has been satisfied-in the second paragraph of the January 23, 1884 claims
Moreover, the Organisation argues that the further portions of the claim satisfy the additiotrl obligation imposed on the Employees, Le, specifying the pertinent facts of the transeetWn relied upon and in that regard it asserts that the creation of run-through trains has eliminated a substantial amount of work and since that "transaction" was approved by the ICC and the Carrier is row avowed to operate tun-through trains, the the basis far displacement and dismissal allowances V obvious.
The Board has considered the rather extensive record at length and after due consideration, we are of the view that the various issues and sub-issues yield to the ultimate determination of whether or not the institution of the run-through operation and related Incidents constitutes a "transaction" within the meaning of the New York Dock Labor Protective Provisions. In reducing the issue to this rather simplistic concept, we do not lose eight of the various contentions set forth by the Carrier which have tended to indicate that a general loss of business has contributed to the reduction of employees nor have we failed to contemplate the Carrier's assertion that the Organization has faded to show a causal nexus between the reduction of forces and the acquisition and related "transaction". However, in viewing the matter in a limited focus, our attention has been invited to a recently adopted Award before an Arbitration Committee established under New York Dodo provision between the Maine Central Railroad Company (Portland Terminal) and tile United Trarogortation Union pursuant to ICC Finance Docket N0. 29720.
The August 10, 1984 Award specifically stated the issw to be whether the establishment of run-through train and/or cure-through power between the Maine Central Railroad Company and the Boston and Maine Corporation constitute a "transaction" as contemplated under New York Dodo provision imposed by the ICC in Finance Docket 29720 (sub-no 1) in anticipation of common control which was finalized on June 30, 1983.
The Award set forth the same basic factual circumstances as presented here concerning a'iTs acquisition of MCPT and BM. It noted a May 5, 1982 New York Dock Notice; various impWmenting agreements and a claim under New York Dock. The Award cites the same definition of "transaction" quoted previously in this Award and the Board stated that It has boon held that ". . .historically protective agreements are intended to provide protection from the impact of decisions far which ICC approval is required." Moreover, it refers to a proximate nexus between the actual merger and the Carrier action at issue. The Award held that:
The Award relied, to a significant extent, upon a conclusion that it V not uncommon for run-through trains to be operated in this industry and Carriers " . . clearly do not need an ICC authorization to operate run-through trains."
Awards resolving disputes between the same parties and concerning the same· issues must be adopted in subsequent proceedings unless the original Award V so erroneous that it would unconscionable to adopt the Award in the second case. This concept is the doctrine of "res adjudicate." Clearly, that doctrine does not apply here because this Organization was not a party to the just cited Arbitration dispute. Nonetheless, prior Awards between different parties, dealing with the same basic issue, may be persuasive under the doctrine of "stare decicis." That is particularly true when the issue V generated by the same factual circumstances in both cases.
Our extensive review of the entire record leads us to conclude that a definition of "transaatiast" controls the Issues before us and we are compelled to agree with the expeessiaas set forth in the August 10, 1984 Arbitration determination between this Carrier and DTO.