.

,;,

'

_,


ARBITRATION COMMITTEE

I.


1.-


In the Matter of the )

Arbitration Between: l

)

BROTHERHOOD RAILWAY CARMEN - ) A DIVISION OF BRAC, )

)

Organization, )

)

and )

)

CSX TRANSPORTATION, INC. and ) THE CHESAPEAKE AND OHIO )

RAILWAY COMPANY, )

)


OPINION AND AWARD


image

JAN 2 0 1987

image

Pursuant to Article I, Section 4 of the New York Dock Conditions and Section 4 of the November 3, 1966 Merger Protective Agreement


I.C.C. Finance Docket No. 28905

Carriers. ))


image


Hearing Date: Hearing Location:

December 18, 1986

Jacksonville, Florida


MEMDF.RS OF THE COMMITTEE

Employees' Member: Carriers' Member: Neutral Member:

R. P. Wojtowicz

J. T. Williams John B. LaRocco



For the Organization:

William G. Mahoney, Esq. Highsaw & Mahoney, P.C.

Suite 210

APPEARANCES

For the Carrier:

James s. Whitehead, Esq. Sidley & Austin

One First National Plaza

1050 Seventeenth Street, N.W.

Washington, D.C. 20036

Mr. L. w. McAlpine, Jr. General Chairman Brotherhood Railway Carmen

P. o. Box 3744

Savannah, Georgia 31404

Mr. R. Utter General Chairman

Brotherhood Railway Carmen

857 McKinley Street

Toledo, Ohio 43605

Chicago, Illinois 60603

James D. Tomola, Esq. General Attorney

CSX Transportation, Inc.

100 North Charles Street Baltimore, Maryland 21201

•


Page 2


In 1966, the ICC approved- the merger of the Seaboard Air Line Railroad Company (SAL) and the Atlantic Coast Line Railroad Company (ACL)_. The merged carrier became the SCL.

On November 3, 1966, the Brotherhood Railway Carmen (BRC)

and sixteen other rail labor organizations entered into an Agreement with the SAL and ACL for the Protection of Employees in the Event of the SAL-ACL Merger. The Agreement, commonly referred to as the Orange Book, was effective August 1, 1966. The parties negotiated the Orange Book pursuant to the last sentence of Section 5(2)( f) of the Interstate Commerce Act. In

1978, Congress enacted 49 u.s.c. 11347 and repealed Section

5(2)(f).


  1. BACKGROUND AND SUMMARY OF THE FACTS

CSX and C&O (collectively "the Carriers") issued written notice, dated August 29, 1986, of their intent to close CSX's freight car heavy repair shop at Waycross, Georgia and to simultaneously transfer "...freight car heavy repair work and certain storeroom work at Waycross...• to the C&O's Raceland, Kentucky freight car heavy repair facility. The work moved from Waycross would be •.••coordinated with such work presently being performed at Raceland under the C&O Agreement.• The repair work and Waycross employees are presently subject to the SCL Schedule Agreement. Approximately fifty percent of the employees currently occupying positions at the Waycross repair shop are

present employees within the definition set forth in Orange Book

'

Section 2(al.

•


NYD Sec. 4 Arb. Comm. BRC and CSX/C&O


Page 3


In their notice, the Carriers informed the Organization of their intent to abolish 149 positions at Waycross and establish

107 positions- at Raceland. The Organization represents 121 of

the incumbents holding positions slated for abolition. By class,

the incumbents are 99 Carmen, 4 Carman Helpers, 13 Painters and 5 •

Painter Helpers. At the coordinated Raceland facility, the Carriers estimated that they would create 86 Carmen, 3 Carman Helper, 6 Painter and 4 Painter Helper positions to perform the work transferred from Waycross. Except as described above, the notice was silent concerning the 22 workers whose positions would be abolished but would be unable to either obtain an equivalent, newly established Raceland position or exercise their seniority to claim a remaining position at Waycross. The Carriers anticipated that they would close the Waycross freight car heavy repair shop on or about December 31, 1986.

The notice also indicated that CSX would abolish 3 clerical positions, 11 jobs in the blacksmith's craft, 6 laborer positions, 3 Machinist positions, 4 jobs held by sheet metal workers and 1 electric crane operator position. At Raceland, the Carriers intended to establish only 1 clerical, 4 blacksmith and

3 laborer positions.

After the Carriers served the August 29, 1986 notice, the parties conferred at least twice to negotiate an implementing agreement. Their bargaining efforts were unsuccessful primarily

because irreconcilable disagreements

developed

over

the

application of certain Orange

Book

provisions,

the

interrelationship between the Orange Book and a New York Dock

NYD Sec. 4 Arb. 1,._,nm. BRC and CSX/C&O

Page 4


implementing agreement and the Carriers' right to implement the

transaction without first complying with the Railway Labor Act. 45 o.s.c. 51 et seg. Thereafter, the Organization, and later the Carriers, invoked arbitration in accord with Section 4(a) of the New York Dock Conditi ons.1 Even though Section 4 contemplates

arbitration by a single, neutral arbiter, the parties formed this Committee to resolve all outstanding disputes under the New York Dock Conditions and the Orange Book. Thus, we derive dual authority from Section 4 of the New York Dock Conditions and Section 4 of the Orange Book.

Beginning on November 4, 1986, the Organization challenged the jurisdiction of this Committee to fashion an implementing agreement. Despite its prior invocation of arbitration, the Organization may nonetheless contest our fundamental power to

adjudicate this dispute. be raised at any time. estopped from urging

A lack of jurisdiction allegation may Therefore, the Organization is not this Committee to dismiss all the

substantive matters which the parties previously agreed to submit to us.

The Organization and the Carriers filed prehearing submissions and extensively argued their respective contentions at the December 18, 1986 hearing. Also, they filed post-hearing briefs which the Neutral Member received on January 2, 1987.


image

1All sections pertinent to this case are found in Article I of the New York Dock Conditions. Thus, the Committee will only cite the particular section number.

NYD Sec. 4 Arb. -vmm. BRC and csx;c,o

Page 5


This decision was issued within'the thirty day limitation period found in Section 4(a)(3) of the New York Dock Conditions.

III• STATEMENT OF THE ISSUES

The Carriers pose the following question to this Committee:

•shall the terms of the attached agreement, proposed by the Carriers, apply to the implementation of the Carriers' August 29, 1986 notice to transfer all freight car heavy repair work from Waycross, Georgia to Raceland, Kentucky and to coordinate such work with that presently being performed at Raceland under the C&O Agreement?•

The •attached agreement• referred to in the Carriers' question at issue is a proposed implementing agreement which it sent to the

Organization on October 15, 1986. their prior proposals.

The Carriers withdrew all

In its opening submission, the Organization proffered four issues which read:

"ISSUE NO. 1:

"Is the CSX's notice dated August 29, 1986 (attached as Exhibit No. 1), concerning transfer of freight car heavy repair work from Waycross, Ga. on the SCL to Raceland, Ky. on the C&O adequate and specific enough notice under the New York Dock conditions?

"ISSUE NO. 2:

"If this arbitrator has jurisdiction of this dispute, can the affected employees who have lifetime guaranteed jobs on the SSR under the Orange Book agreement--which gives the SSR the right to transfer work and employees only from their home point to other points on the former SAL-ACL railroads--be compelled to transfer to another point on another railroad which is not on the property of the former SCL and ACL railroads without unilaterally effecting a change in their wages, rules or working conditions as set forth in the Orange Book?

NYD Sec. 4 Arb. Comm. BRC and csx;c,o

Page 6


•ISSUE NO. 3:

•can CSX move the work which is subject to the SCL(SSR) Working Agreement and restricted to the SCL employees, out from under the SCL agreement and place it under another contract (Working Agreement) on another railroad?

•ISSUE NO. 4:

•If the above issues each are affirmative, what should be the implementing agreement under Article New York Dock?w

answered in the terms of an I, Section 4 of


In addition, the Organization's General Chairman on the C&O raised another issue although the question is actually a subset of the above stated fourth issue. The C&O General Chairman presented the following question:

wshall the C&O employes, junior in seniority to employes transferring from Waycross, Georgia, cooresponding [sic] to the number of senior employes transferring to the coordinated operations, be subject to the protective benefits set forth in Article 5 and 6 of the New York Dock Conditions?w

  1. RELEVANT STATUTES, ORANGE BOOK PROVISIONS, EXCERPTS FROM NEW YORK DOCK CONDITIONS ANO RECENT COURT DECISIONS

    To fully understand the parties' contentions, we must first relate the relevant statutes, contract provisions and legal authority.

    The ICC promulgated and imposed the New York Dock Conditions pursuant to the Congressional mandate in Section 11347 of the Interstate Commerce Act. 45 u.s.c. 11347. Starting with Section 1 (a), a transaction is ••••any action taken pursuant to authorizations of this Commission on which· these provisions have been imposed. w Section 4(a) states that w •••any assignment of employees made necessary by the transaction shall be made on the

    NYO Sec. 4 Arb. mm.

    BRC and CSX/C&O

    Page 7


    basis of an agreement or [arbitrator's] decision under this section 4, • [Brackets added for clarification.] 360 I .C.C.

    85. Assuming we have jurisdiction, Section 4 empowers this Committee to write an implementing agreement providing ••••the selection of forces from all employees involved on a basis accepted as appropriate for application in the particular case • • • " _!!!. Also, Section 4 requires the Carriers contemplating a transaction :o issue a notice containing ".••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." With regard to its jurisdictional challenge, the Organization relies heavily on Sections 2 and 3 of the New York Dock Conditions. These two sections state:

    "2. The rates of pay, rules, working conditions and all collective bargaining and other rights, privileges and benefits (including continuation of pension rights and benefits) of the railroad's employees under applicable laws and/or existing collective bargaining agreements or otherwise shall be preserved unless changed by future collective bargaining agreements or applicable statutes.

    •3, Nothing in this appendix shall be construed as depriving any employee of any rights or benefits or eliminating any obligations which such employee may have under any existing job security or other protective conditions or arrangements; provided, that if an employee otherwise is eligible for protection under both this appendix and some other job security or other protective conditions or arrangements, he shall elect between the benefits under this appendix and similar benefits under such other arrangement and, for so long as he continues to receive such benefits under the provisions which he so elects, he shall not be entitled to the same type of benefit under the provisions which he does not so elect; provided further, that the benefits under this appendix, or any other arrangement, shall be construed to include the

    NYD Sec. 4 Arb. t m.

    BRC and CSX/C&O

    Page 8


    conditions, responsibilities and obligations accompanying such benefits: and, provided further, that after expiration of the period for which such employee is entitled to protection under the arrangement which he so elects, he may then be entitled to protection under the other arrangement for the remainder, if any, of this protective period under that arrangement.•

    Section 3(a) of the Orange Book reads:

    •In consideration of the foregoing employee benefits the Merged Company shall, subject to compliance with the provisions of Appendix F attached hereto, be entitled to transfer the work of the emplorees protected hereunder throughout the merged or conso idated system and the labor organizations will, subject to provisions contained in the Memorandum of Understanding attached hereto as Appendix G, enter into implementing agreements providing for the transfer and use of employees and allocation or

    rearrangement of forces made necessary by chan es for

    which protection is herein provided and the emp1oyees, their organizations and the Carriers will cooperate to that end." [Emphasis added.]

    The pertinent portion of Section 1134l(a) of the Interstate Commerce Act provides that a carrier or person participating in an approved transaction ".•• is exempt from the antitrust laws and

    from all other law .•. as necessary to let that person carry out the transaction•••• 45 u.s.c. 11341(a). In Denver and Rio Grande Western Railroad Co. - Trackage Rights - Missouri Pacific

    Railroad Co., Finance Docket No. 30000 (Sub-No. 18) (October 19, 1983) (unreported) ("the DRGW Case"), the ICC interpreted the scope of its Congressionally delegated authority pursuant to Section ll34l(a). The Commission asserted: "Our approval exempts such a transaction from the requirements of all laws as necessary to permit the transaction to be carried out, and includes an exemption from the requirements of the•••• Railway Labor Act. DRGW at 5. The ICC observed that if its approval of

    NYO Sec. 4 Arb. Comm. BRC and CSX/C&O

    Page 9


    a transaction • •••did not includ·e authority for the railroads to make necessary changes in working conditions, subject to payment of specified benefits, our jurisdiction to approve transactions requiring a change in working conditions of any employees would be substantially nullified.• at 6. The ICC ruled that a duly approved trackage rights agreement containing crew assignments was paramount to conflicting terms in the schedule labor agreements.

    The District of Columbia Circuit Court of Appeals reversed the ICC's decision. Brotherhood of Locomotive Engineers v.

    Interstate Commerce Commission, 761 F.2d 714 (O.C. Cir. 1985);

    cert. granted - U.S. - (1986). While recognizing that Congress

    granted the ICC broad powers to exempt transactions from l gal obstacles, the Court ruled that the ICC must justify the exercise of its statutory authority. The case is currently pending before the United States Supreme Court.

  2. THE POSITIONS OF THE PARTIES

    1. The Organization's Position on Jurisdiction

      The

      Organization strenuously

      argues that we lack

      jurisdiction to fashion an implementing agreement which changes

      the r.ules and working conditions in existing collective

      bargaining and job security agreements. Section 2 of the New York Dock Conditions bars the Carriers from utilizing the compulsory interest arbitration mechanism in Section 4 to remove either employees or work from the SCL Agreement and place the work or workers under the C&O Agreement without exhausting the notice and collective bargaining requirements in the Railway

      NYD Sec. 4 Arb. c...,dlll.

      BRC and csx;c,o

      Page 10


      Labor Act. 45 o.s.c. 151, 156. Neither the ICC nor a Section 4 arbitrator can bind the Organization absent its consent.

      The Organization reviewed the history of employee protection in the railroad industry. The historical record

      evinces a consistently strong public policy favoring employee protection as the consequence of streamlining the national rail transportation network The Organization emphasizes that the New York Dock Conditions, like all employee protective arrangements, are imposed on carriers for the sole benefit of their workers. If Section 4 of the New York Dock Conditions becomes a subterfuge for inflicting mandatory, binding interest arbitration on employees and their representatives contrary to Sections 6 and 7 of the Railway Labor Act, the employee protection is itrationally twisted into a formidable weapon for, instead of an obligation on, rail carriers. Railroads will routinely resort to Section 4

      . to unilaterally fix rates of pay, rules and working conditions. Needless to say, such a result completely undermines collective bargaining. Pursuant to express statutory provisions, interest arbitration in the railroads has always been voluntary. 45

          1. 157, First. Arbitrators acting under the ICC's New York

            Dock Conditions lack the power to change or vitiate existing

            labor contracts.

            Before and immediately after the formulation of the New York Dock Conditions, the ICC and arbitrators uniformly ruled that they lacked jurisdiction to alter the terms of collective bargaining agreements within the context of promulgating an implementing agreement to govern the effectuation of an ICC

            NYD Sec. 4 Arb, Comm. BRC and csx;c,o

            Page 11


            approved transaction. NW/IT v. ·RYA/UTU, NYD S 4 Arb, (Sickles, 1981); NW/IT v. BLE/OTU, NYD S 4 Arb. (Zumas, 1982): 1'W/IT v.

            .£!Y_, NYD S 4 Arb, (Edwards, 1981); and B&O v. BMWE, NYD S 4 Arb.

            (Seidenberg, 1983). Any other outcome would render Section 2 of the New York Dock Conditions meaningless. More particularly, the ICC never claimed authority to indefinitely supersede the Railway Labor Act far into the future merely because it, at one time,

            imposed employee protective conditions on a railroad. Southern Railway Co. - Control - Central of Georgia Railway Co., 331

            I.C.C. 151, 169-170 (1967): and Texas and New Orleans Railroad

            Co. v. Brotherhood of Railroad Trainmen, 307 F.2d 151 (5th Cir. 1962). After the ICC's decision in the case, arbitrators overruled the prior line of decisions and held that they had authority to amend or nullify collective bargaining agreements and, in the extreme, to change representation. The issue is before the Supreme Court. At the specific request of the

            carrier-applicants in the -DRGW case, the ICC expressly approved a

            trackage rights agreement containing crew assignment provisions

            at odds with existing collective bargaining agreements. In its brief to the Court, which is the ICC's latest pronouncement on its exemption authority, the ICC limited its claimed preemption over the Railway Labor Act. In footnote 17 on page 25 of its opening brief, the Commission wrote, "The Section ll34l(a) exemption applies, of course, to terms comprehended by the Commission's approval order.• So, the ICC has now informed the Supreme Court that it seeks to supersede the Railway Labor Act only to the extent that it approved specific, future projects

            NYO Sec. 4 Arb. mm. BRC and csx;c,o

            Page 12


            which the carrier-applicants preiented to it during the course of the administrative proceeding. The transfer of work and workers from Waycross to Raceland was not placed before the ICC as part of the control application. On the contrary, the ICC, relying on the Carriers' representations, opined that the merger of the two holding companies would cause only short-lived employee displacements. 363 I.C.C. 521, 589. The ICC observed that, "It

            is anticipated that all changes in employee positions will occur within 6 months following final approval of the applications.•

            g. Again, the Carriers led the ICC to believe that "perceptible

            dislocations• will be necessary only ••••at points where the ••• end-to-end systems meet.••• Waycross is approximately 600 miles from Raceland and almost 500 miles from the nearest C&O point. Without doubt, the ICC did not foresee the Carriers' misguided attempt to coordinate work at two distant shops on two separately operated rail subsidiaries. The Carriers conveniently ignore the differences between the merger of two holding companies and full scale merger of the subsidiaries. Since the subsidiaries are separate companies, the Carriers may only effect their proposed coordination pursuant to the terms of the Washington Job Protection Agreement. Inasmuch as the Carriers did not present the instant coordination to the ICC, jurisdiction accrues to this Committee only after the Carriers fully comply with the Railway Labor Act.

            Similarly, this Committee may not entertain any changes in

            the Orange Book inasmuch as that merger protective agreement

            vests covered employees with lifetime employment on the former

            NYO Sec. 4 Arb. mm. BRC and CSX/C&O

            Page 13


            SCL property. Section 3 of the New York Dock Conditions absolutely preserves workers' rights and benefits under existing protective agreements. The ICC has never even hinted that its approval of a transaction abrogates prior employee protective contracts especially when those agreements, like the Orange Book, were negotiated in conjunction with the ICC's imposition of employee protection as a condition precedent to consummating an earlier merger. Since the ICC has never ruled that its orders prevail over the types of contracts listed in Section 3 of the New York Dock Conditions, the Carriers cannot use Section 4 to compel the BRC to surrender Orange Book benefits.

            Finally, the Organization may, at its discretion, negotiate implementing agreements which modify existing agreements. The Carriers cannot force the Organization to change the existing collective bargaining agreements in this case merely because, a few times in the past, the Organization voluntarily reached implementing agreements with the Carriers.

            Raising an alternative jurisdictional consideration, the

            Organization correspondence

            avers that failed to

            the Carriers' satisfy the

            August Section

            29,

            4

            1986

            notice

            requirements for two reasons. First, the notice was vague as to

            both employees and work. The notice failed to describe exactly what freight car heavy repair work was going to Raceland. Although the Carriers were creating 22 fewer positions at Raceland than they were eliminating at Waycross, they did not give any indication as to the status of the 22 employees who would be detrimentally affected by the transaction. Second,

            NYD Sec. 4 Arb. ,mm. BRC and csx;c,o

            Page 14


            BRC's c,o General Chairman was skeptical of the Carriers' estimated need for 99 Raceland positions to perform the work moved from Waycross. Furthermore, he was particularly wary of

            the Carriers' intent to bring more employees into Raceland inasmuch as the c,o furloughed more than 200 Raceland Carmen on November 28, 1986. An improper Sectio 4 notice deprives this

            Committee of jurisdiction and the case must be dismissed. The Carriers must initiate the Section 4 process de novo, by tendering a new notice which fully and adequately describes their proposed changes including an accurate estimate of workers needed to perform the transferred work.

            E. The Carriers' Position on Jurisdiction

            At the onset, the Carriers underscore the rational business purpose of the coordination. Shippers' demand for conventional type freight cars is diminishing. They are opting for privately owned cars or intermodal equipment. While Raceland Shop is plagued with excess capacity, the Waycross facility lacks the space to assume repair work from Raceland unless CSX expends enormous sums to expand and renovate the plant. Since both shops will not be needed in the future, the Carriers chose to close the Waycross repair facility and transfer the work to Raceland.

            During oral argument, the Organization conceded that the planned Waycross-Raceland coordination was a transaction within the ambit of the New York Dock Conditions. Admittedly, the Carriers did not specifically present the instant coordination to the ICC but all parties as well as the ICC realized that the railroads might engage in transactions other than those alluded

            NYD Sec. 4 Arb. Comm. BRC and CSX/C&O

            Page 15


            to in their initial operating scheme long after the ICC's omnibus approval of the control application. The Commission remarked that it is ••••possible that as the two systems mesh their operations, additional coordinations may occur that could lead to further employee displacements.• 363 I.C;C. 521, 589 (1980). In his affidavit, the General Counsel of the Brotherhood of Maintenance of Way Employes realized that approval would eventually permit extensive future changes not needing ICC approval. The Commission responded to labor's concerns by imposing the New York Dock Conditions on each and every transaction. As the ICC found, the ••••conditions will adequately protect those employees now identified as affected by the consolidation as well as those who may be affected in the future, but are not now identified specifically." Id. Most importantly, the ICC concluded that the operation of a single system would permit the Carriers to reap operating and cost efficiencies including the alleviation of excess capacity at the C&O's Raceland facility. Id. at 538 and 561.

            The Organization's position that this Committee lacks jurisdiction to formulate an implementing agreement covering the coordination of work between Waycross and Raceland is inconsistent with its past participation in consolidations which the Carriers undertook pursuant to the control case and in accord with arbitrated implementing agreements. See BRC v. B&O, NYD S 4

            Arb. (Fredenberger, 1984): C&O v. BRC, NYD S 4 Arb. (Marx, 1984):

            I

            and BRC v. B&O, NYD S 4 Arb. (Fredenberger, 1983). Jurisdiction was not an issue in any of these three prior Section 4

            NYD Sec. 4 Arb. omm. BRC and csx;c,o

            Page 16


            arbitrations manifesting the Organization's recognition that the sole purpose of Section 4 is to procure an iaplementing agreement covering the transaction.

            The jurisdictional issue presented to this Committee is not

            a question of first impression. Many respected neutrals have ruled that, under Section 4 of the New York Dock Conditions, an arbitrator has the power to issue an implementing agreement governing a work transfer even though the transaction had not been anticipated during the ICC proceedings and implementation would override terms of existing collective bargaining agreements. UP v. ATOA, NYO S 4 Arb. (Fredenberger, 1984); UP v. UTU, NYD S 4 Arb. (Brown, 1985); BLE v. UP/MP, NYD S 4 Arb.

            (Seidenberg, 1985); and UTU v. NW/SR, NYD S 4 Arb. (Ables,

            1985).

            relied

            In UP v. ATOA, supra at 12, Arbitrator Fredenberger on the case and concluded that " ... the

            ICC ••• determined that the Railway Labor Act and existing collective bargaining agreements must give way to the extent that the transaction authorized by the Commission may be effectuated.• When it approved the CSX control application, the ICC necessarily authorized the transfer of work from one carrier to another as the inevitable consequence of implementing a transaction. If the Organization prevails, it would achieve its objective of thwarting all transactions. Such an outcome effectively cancels the ICC's approval in the control case. The Carriers would be precluded from ever obtaining the savings and benefits of operating a single rail system. In the ORGW case at page 5, the ICC emphasized that its ••••approval exempts a

            NYO Sec. 4 Arb. omm. BRC and csx;c,o

            Page 17


            transaction from the requi remen·ts of all laws as necessary to permit the transaction to be carried out, and includes an exemption•••• from the Railway Labor Act. See also, Brotherhood

            of Locomotive Engineers v. Chicago & North Western Railway Co., 314" F.2d 424 (8th Circ. 1963), cert. den., 375 o.s. 819 (1963).

            Continuing on the next page of its decision, the ICC squarely

            rejected the Organization's inference that its ruling conflicted with Section 2 of the New York Dock Condittions when it declared:

            •The terms of those conditions, however, must read in conjunction with our decision authorizing the involved transaction and the underlying statutory scheme. To the extent that existing working conditions and collective bargaining agreements conflict with a transaction which we have approved, those conditions and agreements must give way to the implementation of the transaction."

            The Organization employs wishful thinking when it asserts that the ICC subsequently modified its view of its own authority when the .!IBQ!! case reached the Supreme Court. The footnote which the Organization cites from the ICC's brief is attached to an unequivocal sentence reading: "The scope of the exemption is defined by the terms of the approved transaction.• The ICC's brief provides little solace for the Organization. In its Reply Brief filed with the Court, the ICC vigorously asserted that provisions of the Railway Labor Act and collective bargaining contracts are automatically superseded to the extent necessary to carry out approved transactions. The ICC knew, as stated in its brief, that if the Carriers first had to endure the protracted negotiating procedures, with the right of economic self-help, contained in the Railway Labor Act, the transaction would be

            NYD Sec, 4 Arb., m. BRC and csx;c,o

            Page 18


            \

            indefinitely delayed and most probably nullified. Thus, mandatory arbitration under Section 4 of the New York Dock \

            Conditions insures that the parties will arrive, through either \

            /

            negotiation or arbitration, at an implementing agreement. Section 4 obviates the • •••risk of nonconsummation as a result of the inability of the parties to agree on new collective bargaining agreements effecting changes in working conditions

            necessary to implement these transactions•••• Maine Central Railroad Co., Georgia Pacific Corporation, Canadian Pacific Ltd. and Springfield. Terminal Railway Co. - Exemption From 49 u.s.c. 11342 and 11343, I.c.c. Fin. Docket No. 30532 (August 22, 1985); appeal pending No. 85-1636 (D.C. Cir.).

            All Carmen, who transfer from Waycross to Raceland, must be placed under the C&O Agreement to necessarily effectuate the coordination. And, the transaction cannot be consummated unless the Waycross freight car heavy repair work is shifted to the coordinated facility.

            On December 30, 1980, the Organization entered into an implementing agreement providing for the transfer of SCL Carmen's work to the C&O. To reiterate, the Organization acknowledged that, as a consequence of accomplishing the transaction, Carmen may be removed from the SCL Agreement and placed under the C&O Agreement. In addition, the Carriers stress that they successfully negotiated implementing agreements covering this particular transaction with four of the six other labor unions representing affected Waycross employees. As to the two unions which have not signed implementing agreements, the unresolved

            NYD Sec, 4 Arb. umm. BRC and CSX/C&O

            Page 19


            issues are unrelated to the Carriers' right to transfer workers from Waycross to Raceland.

            The Orqanization has the misplaced notion that the Carriers desire, through this Section 4 arbitration, to vitiate the Orange Book and schedule Agreements. After implementation, the SCL working Agreement and the Orange Book will remain viable and unaltered, Orange Book protected employees moving to Raceland will retain the full spectrum of benefits in the Orange Book.

            In summary, this Committee has the jurisdiction to prepare an implementing agreement so that the Carriers may consolidate the work at Raceland. The exemption from the Railway Labor Act is coextensive with the ICC's approval in the control case.

            With regard to the sufficiency of the Carriers' August 29, 1986 notice, the document disclosed exactly what changes were forthcoming and included an estimate of the number of employees, in each class, affected by the planned changes. The notice described the relevant Waycross work, noted the Waycross positions to be abolished and the Raceland positions to be established, and informed the Organization of CSX's intent to close the Waycross facility. The plain, obvious fact was that the 22 employees (directly affected by the coordination) would be protected under the New York Dock Conditions. The notice contained sufficient details to permit the Organization to

            discuss the impending changes.

            organizations (which represent

            None of the other labor

            members affected by the

            transaction) challenged the adequacy of the notice. The Neutral Member of this Committee has previously ruled that the adequacy

            NYD Sec. 4 Arb. Lomm. BRC and csx;c,o

            Page 20


            of Section 4 notices must be adjudged on a case by case basis. c,o/L&N v. BRS, NYD S 4 Arb. (LaRocco, 1985). The notice in this case is even more specific and informative than the notice tendered in the above case and thus, it conformed to Section 4 of the New York Dock Conditions.

            c. The Carriers' Position on the Contents of an Implementing Agreement


            During negotiations, the Carriers offered the BRC more generous terms than the minimum level of benefits contained in the New York Dock Conditions. However, the Carriers' offer was conditioned on expeditiously consummating an agreement without resorting to arbitration. When negotiation reached impasse, the Carriers withdrew their offer and substituted the proposed October 15, 1986 implementing agreement. This Committee should disregard the Carriers' withdrawn proposals to encourage the

            Organization transactions.

            to reach negotiated settlements on future In addition, a Section 4 Arbitrator lacks the

            authority to write an implementing agreement which grants workers benefits greater than those specified in the New York Dock Conditions.

            Immediately upon notification of the impending transaction, the Organization took the novel position that Orange Book protected workers could not be transferred to Raceland. Contrary to the Organization's bold assertion, there is no language in the Orange Book prohibiting the Carriers from moving Orange Book protected employees to points beyond the boundaries of the former SCL property. Since 1966, none of the labor organizations which

            NYD Sec. 4 Arb. omm. BRC and csx;c,o

            Page 21


            are parties to the Orange Book, including the BRC, have even suggested that the Carriers may only transfer Orange Book covered employees to. other SCL locations. If any labor organization had taken such an untenable position, the issue would certainly have been adjudicated long ago. Orange Book Section 3 (a) permitted the Carriers to transfer Orange Book employees throughout the former SCL system and concomitantly required the Organization to negotiate implementing agreements governing the force rearrangements. The Organization cannot, twenty years later, convert an affirmative right flowing to the SCL into a restriction on the Carriers' right to move Orange Book employees beyond the former SCL property.

            By already signing implementing agreements, other labor organizations involved in this coordination recognize the Carriers' right to require Orange Book protected employees to transfer to Raceland with their work. Moreover, the current BRC Gener a1 Chairman was not in office when the Orange Book was signed. His predecessor was privy to Orange Book negotiations. The former General Chairman implicitly acknowledged that Orange Book protected employees could be transferred to other than SCL points because he entered into implementing agreements providing for such transfers. The Seaboard System Railroad's former

            Executive President, who is also familiar with both negotiating and applying Orange Book provisions, confir■ed that the parties never intended to grant Orange Book protected workers insulation from transfers to locations other than those on the former SCL

            NYO Sec. 4 Arb. vmm. BRC and csx;c,o

            Page 22


            property. The retired Executive· Vice President further attested in Paragraph 12 of his December 8, 1986 affidavit:

            •12. Prom my familiarity with the negotiations leading to the agreement known as the Orange Book, there was a 'give and take' whereby certain working life income guarantees were granted by . the merging railroads in exchange for the right of the merged carrier, SCL, to transfer work, consolidate facilities, and thereby transfer employees pursuant to implementing agreements to be negotiated thereunder.•

            The Orange Book was negotiated in an atmosphere replete with railroad mergers. The Orange Book drafters could easily foresee that there would be additional mergers necessitating SCL employees to relocate on the expanded property of a successor employer.

            The parties have never accorded Orange Book covered employees the absolute right to remain on the SCL property. Pursuant to a December 30, 1980 implementing agreement, SCL Carmen, including Orange Book employees, transferred to the C&O. Six SCL Carmen, three of whom came under the Orange Book, shifted to the C&O and continued to enjoy Orange Book protection. In 1967, shortly after the Orange Book was signed, the Organization was a party to an implementing agreement providing for the transfer of SCL Carmen to the Richmond, Fredericksburg and Potomac Railroad. In 1973, the BRC along with other shop craft unions entered into an implementing agreement covering the coordination of SCL and Louisville & Nashville Railroad (L&N) shop facilities in Alabama. Other labor unions have also entered into implementing agreements requiring Orange Book protected workers to transfer off the SCL, Some Orange Book

            NYD Sec. 4 Arb•• omm. BRC an csx;c,o

            Page 23


            employees opted for a separation allowance per Orange Book Appendix G.

            The Organization is again attempting to forever block the transaction by arguing that the transfer would place workers in a worse position, as specified in Orange Book Section 2(b), due to weather differences between Raceland ("harsh") and Waycross ("mild"). The contention is ludicrous. Greater weather variations can be expected vis-a-vis Miami, Florida and Richmond, Virginia yet, even the Organization concedes that the Orange Book allows transfers between these two SCL points.

            The Organization's proposed implementing agreement terms go far afield of the New York Dock Conditions and would render the transaction so expensive as to effectively preve11t implementation. The Organization proposes that all Carmen may decline Raceland positions and, upon their voluntary furlough, still collect Orange Book benefits or New York Dock dismissal allowances. The Carrier would not only be burdened with paying expensive protection benefits but also would have to pay Raceland employees to perform Waycross work. The BRC General Chairman on the C&O seeks to automatically certify an unspecified number of Raceland employees even though dovetailing seniority does not constitute a per se adverse effect on junior Raceland Carmen. Whether or not any Raceland workers are eligible for New York Dock payments is best left to a Section 11 proceeding. In the control case, the ICC rejected labor's requests to prohibit residence changes and to enact a conclusive presumption as to adverse effect. 363 I.C.C. 589-590. Another Organization

            ..

            NYD Sec. 4 Arb. omm. BRC and csx;c,o


            Page 24


            proposal might be inequitably construed to allow senior, furloughed Raceland Carmen to immediately displace junior workers who just followed their work from Raceland. Finally, the SCL General Chairman inappropriately urges utilization of furloughed Waycross ·carmen ahead of Raceland employees. Not surprisingly, both the Carriers and the Organization's C&O General Chairman oppose this proposal.

            On the other hand, the Carriers' proposed implementing agreement follows the New York Dock Conditions. Forced assignments at Raceland should be made in seniority order consistent with an employee's duty to exercise seniority over his work to the fullest extent. Once the transaction is implemented, there is no reason for the transferred workers to retain seniority at Waycross. The Carriers request the Committee to adopt their October 15, 1986 proposed implementing agreement.

            D. The Organization's Position on the Contents of an Implementing Agreement


            The Orange Book clearly and unambiguously affords covered workers lifetime job protection on the SCL. The only exceptions are found in Orange Book Section 2(e). Section 3(a) permits work transfers on the ACL-SAL consolidated system but no further. Transferring Orange Book employees beyond the SCL property places them in a worse position with respect to their working conditions. See Orange Book Section 2(b). The intent and language of the Orange Book demonstrates that covered employees received guaranteed jobs on the former SCL property throughout their worklife. The Orange Book protection is shielded by

            NYD Sec. 4 Arb. Comm. BRC and CSX/C&O

            Page 25


            Section 3 of the New York Dock Conditions and Orange Book protected employees have the right to elect Orange Book benefits

            as soon as they are affected by a New York Dock transaction • .22!

            v. BRAC, NYD S 4 Arb. (Zumas, 1983). Thus, they are entitled to opt for protective benefits and decline to transfer to Raceland.

            The Carriers are unable to point to any Orange Book provision giving the Carriers the unilateral right to move Orange Book employees to the C&O property. On the contrary, Section 3(a) sets the limits of the Carriers' right. Moreover, the terminology regarding seniority in Section 2(e) refers to

            ••••existing rules or agreements.• Those rules, which are found in the agreements in effect at the time of the merger, provide for point seniority. For the same reasons, the classification of work rule in the January 1, 1968 schedule Agreement preserves the Waycross freight car heavy repair work to the Carmen's craft on the SCL. The Carriers' proposed implementing agreement would abrogate the Orange Book and the then existing working agreement.

            At one time (in 1980), the Organization voluntarily entered

            into an implementing agreement allowing the Carriers to transfer SCL employees, including some Orange Book protected workers, from the SCL property at Richmond to a C&O facility in the same city. The Organization's voluntarism is not precedent for the wholesale removal of all Orange Book protected employees from the SCL. In contrast to the instant transaction, the Orange Book employees were not required to change their residence. The Carriers cannot compel the Organization to execute a similar implementing agreement under the guise of the New York Dock

            NYD Sec. 4 Arb. omm. BRC and CSX/C&O

            Page 26


            Conditions. The Organizatioi's voluntary action was non- precedential. Other labor unions, representing workers involved in this transaction do not represent any (or at most one) Orange Book protected workers.

            The Raceland weather is much more severe than at Waycross. Many of the Waycross Carmen work outdoors. Moving to a harsher working environment constitutes a change in working conditions which is prohibited by Section 2 of the New York Dock Conditions.

            Besides provisions keeping Orange Book protected employees on the former Set property and guaranteeing these workers an election of benefits at the time this transaction is effectuated, the implementing agreement should contain terms close to the implementing agreement originally proposed by the Carriers. The Carriers' October 15, 1986 proposal is grossly inferior to their prior offer. The Carriers are improperly penalizing the Organization for sincerely raising other issues, such as Orange Book interpretation, which directly impacted on the negotiations over an implementing agreement.

            The BRC advocates the following changes to the Carriers' October 15, 1986 proposal. First, forced assignments to unfilled Raceland positions should be accomplished in reverse seniority order. Since there will be fewer positions established at Raceland, it is more logical to start with junior affected employees allowing the senior workers, as opposed to junior workers, to remain in Waycross and draw protective benefits. Second, since the work being transferred to Waycross would have

            NYD Sec. 4 Arb. 1..Jmffl.

            BRC and CSX/C&O

            Page 27


            accrued to furloughed Waycross Carmen upon the retirement, resignation or death of active Waycross employees, the furloughed

            Waycross Carmen should have superior rights over Raceland

            •

            employees to the transferred work. However, the BRC General

            Chairman on the C&O takes exception to this particular proposal. Third, workers who transfer should retain dual seniority at Raceland and Waycross. If a position (other than one of temporary duration) becomes vacant at Waycross, these workers will have a one time opportunity to return to Waycross and depending on their election, they will forfeit either their Raceland or Waycross seniority. Fourth, the Organization proposes the following language for inclusion in the implementing agreement:

            •when the transfers from Waycross to Raceland take place, a like number of the C&O employees at Raceland will be provided with New York Dock protective conditions star ting with the oldest Raceland employee that falls below the youngest employee transferring in from Waycross; i.e., if 86 Waycross carmen are dovetailed into the Raceland seniority roster, then 86 Raceland Carmen-starting with the oldest Raceland carmen in seniority- who falls below the youngest carmen in seniority from Waycross will be protected by the New York Dock protective conditions.•

            The C&O General Chairman asserted that Raceland has already absorbed several consolidations involving incoming workers over the last several years. While dovetailing is the fairest method of combining seniority rosters, each added coordination has detrimentally affected the relative seniority standing of Raceland Carmen. The constant influx of 11ore senior workers cancels the benefits derived from the accumulation of

            csx;c,o

            NYC Sec. 4 Arb. .mm. BRC and

            Page 28


            seniority. Subsequent to the tr nsfer of work from Waycross, it becomes more likely that some presently employed Raceland Carmen will be furloughed. Protecting Raceland workers would give them more job security and compensate them for the loss of relative seniority. If the Carriers have correctly estimated that there will be sufficient work to occupy 99 additional Carmen, it should not object to protecting an equivalent number of Raceland Carmen because presumably the latter will continue in active employment.

  3. DISCUSSION

    1. Jurisdiction

      1. The Notice. The threshold issue before this Committee is whether the Carriers' August 29, 1986 notice conforms to the minimum requirements of Section 4 of the New York Dock Conditions. The pertinent portion of Section 4 provides: "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 change .•

        The Neutral Member of this Committee commented on the purpose and meaning of the above language in another Section 4 case, as follows:

        "The purpose of the advance notice is twofold: the notice triggers the Section 4 procedures which contain tight time deadlines for obtaining an implementing agreement: and, it informs the Organization (as well as all interested employees) of the impending, authorized New York Dock transaction so that the Organization and the Carriers may bargain, in good faith, over the' terms of an implementing agreement.

        360 I.C.C. 71. The notice must contain a full and adequate statement of the intended transaction and include an estimate of the number of affected

        NYD Sec. 4 Arb. Jmm. BRC and csx;c,o

        Page 29


        workers. Since the ICC, in Article 1, Section 4(a) did not enumerate the essential elements of a New York Dock notice (aside from the adjectives "full and adequate• and the mandatory estimate), whether a particular notice conforms to Section 4(a) must be decided on a case by case basis.• C&O/L&N v. BRS, NYD S 4 Arb. (LaRocco, 1985).

        Thus, the propriety of a Section 4 notice must be evaluated on a case by case basis taking into account the surrounding

        circumstances

        transaction.

        and peculiarities of each New

        York Dock

        In this case, the notice satisfied Section 4. Since the

        Carriers intend to close the Waycross facility, all freight car heavy repair work will be transferred to Raceland and thus, the Carriers did not have to quantitatively or qualitatively describe the freight car repair work. Also, the Carriers, in good faith, estimated the number of employees in each class who would be

        involved in the force rearrangement. groundwork for meaningful negotiations.

        The notice laid the The Organization can.

        hardly contend that it was ill-prepared for bargaining. The

        notice'' adequately apprised the Organization of the nature of the impending transaction because it easily ascertained that, from its perspective, the transaction would vitiate employee rights in the Orange Book and the SCL working Agreement.

      2. Subject Matter Jurisdiction. In Section 1(a) of the New York Dock Conditions, the ICC broadly defines a transaction as ••.•any action taken pursuant to authorizations of this Commission on which these provisions have been imposed."

        360 I.C.C. 84. The parties concur that the transfer of freight car heavy repair work from Waycross to Raceland constitutes a New

        NYD Sec. 4 Arb. lvmm. BRC and CSX/C&O

        Page 30


        York Dock transaction. It is aiso undisputed that the intended consolidation was not expressly and specifically presented to the Commission during administrative proceedings culminating in approval of the control application.

        Where a transaction may cause the dismissal or displacement· of workers, an implementing agreement:

        ••••shall provide for the selection of forces from all employees involved on basis accepted as appropriate for application in the particular case and .!.!ll'.. assignment of employees made necessary by the transaction shall be made on the basis of an agreement

        or decision under this section 4. • (Emphasis added.) 360 r.c.c. as.

        While the ICC clearly authorized the Carriers to undertake transactions, it also plainly provided for the plenary preservation of all existing collective bargaining rights,

        collective agreements.

        bargaining agreements and employee protection

        (See Sections 2 and 3 of the New York Dock

        Conditions.) When the Carriers' authorized transaction embraces components which could arguably conflict with the terms of one or more existing agreements, the issue becomes to what extent, if any, a New York Dock implementing agreement may properly preempt the agreements and the Railway Labor Act. The issue is an ongoing controversy in rail labor relations and is currently before the United States Supreme Court. Thus, any principles we espouse on this matter should be reevaluated based on the Supreme Court's decision in the .!IBQli case.

        To resolve the issue in this case, we start by attempting

        to balance the competing policies of the Railway Labor Act and the ICC's New York Dock Conditions on the one side and the

        NYO Sec, 4 Arb. BRC and CSX/C&O

        mm. Page 31


        Interstate Commerce Act on the•· other side. The New York Dock Conditions were imposed on railroads for the exclusive benefit of any employee affected by a transaction, However, the Conditions were imposed as part of the ICC's overall regulatory scheme which is designed to encourage ■erged rail carriers to augment their ability to compete in the transportation marketplace by consolidating operations. Transactions leading to more efficient operations frequently contradict the Railway Labor Act's policy of avoiding disruptions to interstate commerce by promoting collective bargaining. Consolidations upset stable collective bargaining relationships. Thus, there is not just tension between the Railway Labor. Act and the Interstate Commerce Act but a classic clash of two important Federal statutes. Compare: Texas and New Orleans Railroad Co. v. Brotherhood of Railroad Trainmen, supra at 158-160, with Brotherhood of Locomotive Engineers v. Chicago and North Western Railway Co., supra. The conflict has been carried forward into the New York Dock Conditions.

        As a quasi-judicial extension of the ICC, this Committee

        must strictly follow the ICC's interpretation of its own authority. In the case, the ICC decided that 49 u.s.c. 11341 (a), the source of the exemption, granted the Commission

        expansive and self-executing authority to immunize an approved transaction from the Railway Labor Act and existing collective bargaining agreements to the extent the statute and terms of the agreements bar implementation of the transaction. According to the ICC, Section 1134l(a) insulates a transaction from all legal

        NYD Sec. 4 Arb. vmm. Page 32

        BRC and csx;c,o


        obstacles preventing or impeding.effectuation. Subsequent to the ICC's rulinq; ifft-the DRGW case, arbitrators who promulgated New York Dock implementing agreements pursuant to Section 4, have universally decided that implementation of a transaction prevails over conflicting terms in existing collective bargaining agreements. ATOA v. !JP, NYD S 4 Arb. (Fredenberger, 1984); UTU

        v. MP/UP, NYD S 4 Arb. (Ables, 1985); and BLE v. UP/MP, NYD S 4


        Arb. (Seidenberg, 1985). In an effort to distinguish those


        decisions, the Organization argues herein that the ICC recently tempered its perception of the outer limits of the Section

        11341 (al exemption. Pointing to a footnote at page 25 of the


        ICC's Brief to the Supreme Court, the Organization submits that the ICC now asserts that the exemption applies • ••• only to terms comprehended by the Commission's approval order.• The

        Organization concludes therefore, that the exemption is


        inapplicable to the Waycross-Raceland coordination. We


        disagree. The ICC's Opening and Reply Briefs do not include any definitive language demonstrating a modification in the ICC's broad determination that its orders supersede the Railway Labor Act. Indeed, the footnote relied on by the Organization is appended to a statement asserting that the exemption mirrors the scope of the approved transaction. Elsewhere in its briefs, the ICC reiterates that the exemption goes beyond the transactions specifically mentioned in the approval proceeding so that railroads do not have to constantly return to the ICC to receive

        ap roval for each and every change made pursuant to the ICC's original order. At page 26, the ICC emphasized that the

        NYO Sec. 4 Arb. 1mm.

        BRC and CSX/C&O

        Page 33


        exemption Ui.Ha,· aut011atically to cover •anything authorized or

        l' require4":-·biJ an approval order, The last ICC pronouncement (more recent than the footnote cited by the Organization) is found at page 11 of its Reply Brief where the ICC declared:

        •The unions are also mistaken in contending that the ICA's own labor protective provisions, 49 u.s.c.

        (Supp. II) 11347, prohibit the Commission from adjusting collective bargaining rights. As the Commission explained (Pet. App. 59a-60a), Section 11347 and the Commission's labor protective provisions preserve existing collective bargaining rights only to the extent that they do not conflict with implementation of an approved transaction."

        Although not expressed within the control application, the

              • Raceland coordination is an approved transaction exempt from the

        Railway Labor Act.

        However, the exempt ion is only triggered when necessary. The ICC has never indicated that an approved transaction can be utilized as a pretext for extinguishing or amending existing collective bargaining agreements. To the extent that terms of collective bargaining agreements and collective bargaining rights do not thwart or substantially impede the approved transaction, those agreements and rights are preserved. Therefore, there is

        some harmony between Section 1134l(al of the Interstate Commerce Act and Section 6 of the Railway Labor Act. 49 u.s.c. 1134l(a):

        45 u.s.c. 156. f'If feasible, the transaction should reasonably

        accommodate existing collective bargaining agreements and collective bargaining rights,

        Next, the Organization urges us to draw a delicate distinction between Section 2 and Section 3 of the New York Dock Conditions. Prior merger protection agreements might be more

        NYD Sec. 4 Arb. BRC and csx;c,o

        mm. Page 34


        inviolable than existing collective bargaining agreements because the prior merger agreements, like the Orange Book, were formulated under the auspices of Section S( 2)(f) (now Section 11347) of the Interstate commerce Act. If so, the Organization correctly argues that the ICC must expressly relieve the Carriers from Orange Book provisions when it engages in a New York Dock transaction pursuant to an approval order issued subsequent to the order approving the ACL-SAL merger. Given the mandate in Section 11347, there is some doubt that Section 1134l(a) exempts New York Dock transactions from conflicting terms in prior merger protective agreements. To our knowledge, the ICC has not addressed this dilemma. In the DRGW case, the ICC did not patently rule that the exemption abrogates prior employee protective agreements such as the Orange Book. We cannot speculate on exactly how the ICC would handle prior merger protection agreements. However, as we discussed above, the ICC

        has emphasized that a transaction hurdles all legal obstacles preventing implementation. Moreover, most rights and benefits

        '' preserved to employees under Section 3 of the New York Dock

        Conditions will be safeguarded through prudent applications of

        ithe reasonable accommodation standard.

        \Therefore, this Committee has jurisdiction to formulate an implementing agreement governing the transfer of work and

        temployees from Waycross to Raceland.

    2. The Contents of an Implementing Agreement

      1. The Orange Book. Section 2(b) of the Orange Book

        provides that a covered employee will not be deprived of

        NYD Sec, 4 Arb. Jmm. BRC and CSX/C&O

        Page 35


        employment or placed in a worse position with regard to his working conditions at any time during such employment with the SCL. In exchange for lifetime protection, the Carriers acquired the right to transfer work and workers throughout the merged (SAL-ACL) system. See Orange Book Section 3(a). To that end, Section 3(a) calls for the execution of mandatory implementing agreements. Without such a clause, the point seniority terms of the working agreement would have restricted the Carriers from moving employees. Since it was necessary for the SCL to obtain a provision allowing it to transfer Orange Book protected employees throughout the merged system, it logically follows that a similar term is essential to permit the Carriers to transfer Orange Book covered workers beyond the SCL property. Instead, the Carriers desire to translate a limited, affirmative right into the unfettered discretion to transfer Orange Book workers throughout any enlarged rail system. An affirmative right carries an inherent implication that the right is restricted to the express terms conferring the affirmative right. The affirmative right is capped. Under the Carriers' interpretation, the Section 3(a) language would be unnecessary since they ostensibly have the right to transfer Orange Book employees throughout the SCL, L&N, B&O and the C&O. The parties do not enter into solemnly negotiated agreements only to have the terms of their agreements rendered meaningless or superfluous. The ACL and SAL could have foreseen that they might later become the part of an even larger rail enterprise. Thus, drafters of the Orange Book could have

        NYD Sec, 4 Arb. BRC and csx;c,o

        mm. Page 36


        easily written terms providing for unrestricted transfers across any enlarged rail system.

        Our decision that the Carriers may not transfer Orange Book

        protected employees beyond the former SCL property is premised on the clear and express language of Section 3(a). The Seaboard System's retired Vice President was noticeably vague in explaining the meaning of Section 3(al. While a past practice may not vary or alter the clear and unambiguous Orange Book

        language, the Carriers' reference to prior implementing

        agreements was insufficient to raise a consistent and genuine past practice even if Section 3(a) was susceptible to differing

        interpretations. The prior implementing agreements involved a

        modicum of Orange Book covered workers and under some of the agreements, the Orange Book employees could receive separation pay, an option they probably chose. The December 30, 1980 implementing agreement resulted in the transfer of Orange Book covered employees from the SCL to the C&O but only within the

        same city. into the

        In any event, the Organization voluntarily entered implementing agreement. Although other labor

        organizations have signed implementing agreements with the Carriers governing this transaction, at most there was only one Orange Book employee involved. Thus, these implementing agreements provide us with little guidance in interpreting the Orange Book.

        Even though Orange Book Section 3(a) provides that the work of Orange Book protected employees may be transferred throughout the SCL property (but no further), 'the provision must be

        ,•

        NYD Sec. 4 rb. _omm. BRC and CSX/C&O


        Page 37


        s ubo rdi nat e6 .0 to-, the carriers• rlght to engage in the authorised

        New- York' Deck- transaction.

        Otherwise, the Carriers would be

        effectively thwarted from transferring all the Waycross freight car heavy repair work to Raceland. Unlike the work, the Orange Book limitation on ransferring covered employees throughout the Set. system can be reasonably accommodated with the transaction. Permitting Orange Book covered workers to be transferred only throughout the SCL (absent a voluntary agreement with the Organization) will only slightly impair the transaction while preserving the essence of the Orange Book pursuant to Section 3

        of the New York Dock Conditions. Even under the Carriers'

        proposed implementing agreement, some of the Orange Book employees would have exercised their seniority to remaining positions at Waycross in lieu of transferring to Raceland. _In summary, this Committee emphasizes that whether or not Section J(a) can be reasonably accommodated with a New York Doc:k transaction must be analyzed on a case by case basis. Enforcing the limit on transferring Orange Book protected employees might,

        under different facts,

        operate

        to completely

        bar the

        • transaction. Then, the ICC's authorized transaction would be

        i_ paramount to, Orange Book Section 3 (a).

        In this case, the

        Carriers may not compel Orange Book protected workers to accept Raceland positions.

        image

        This Committee realizes that its decision will create an

        anomaly. The more senior Orange Book workers will be able to

        obtain other positions at Waycross. The junior Orange Book

        protected workers, who will presumably decline Raceland positions

        .·

        NYD Sec. 4 Arb. vmm. BRC and CSX/C&O


        Page 38


        will collect Orange Book benefits. However, the Carriers have other alternatives under the Orange Book.

        Despite the terminology in Orange Book Section 3(a), the

        New York Dock iapluent:ing agree11ent covering this transaction shall provide, without restriction, for the transfer of all freight: car heavy repair work from Waycross to Raceland. As soon as the Carriers commence the transaction, incumbents of the abolished positions, who are Orange Book protected employees, will be affected by the transaction and thus, the implementing agreement must give them the immediate option to elect either New York Dock benefits or Orange Book protection. BRAC v. SSR, NYD S 4 Arb. (Zumas, 1983).

      2. Other Issues. For the reasons discussed earlier in our opinion, the work and employees transferred from Waycross shall be placed under the C&O schedule Agreement. Maintaining the work or employees under the SCL working agreement would for

all practical purposes, block the transaction. accommodation is impossible.

A reasonable

Regardless of whether Raceland or Waycross has the more comfortable climate, the Carriers would be barred from effectuating any New York Dock transaction if workers could decline a transfer merely by asserting that the weather at their current point was more amenable than the meterological conditions at the coordinated location. Most importantly, the Organization is unable to cite any term in any existing agreement vesting Carmen with the right to perform work in a particular climate.

• • •


N'lD Sec. 4 Arb. ,mm. BRC and csx;c,o


Page 39


Most of the Organization's other proposals concern the inclusion of benefits more generous than the minimum level of benefits prescribed by the New 'fork Dock Conditions. When fashioning an implementing agreement, a Section 4 arbitrator must adhere to the New 'fork Dock Conditions. BRC v. C&O/SSR (L&N), N'lD S 4 Arb. (Marx, 1984). The parties are, of course, free to incorporate benefits above and beyond those in the New 'fork Dock Conditions. In addition, the Carriers cannot be bound to their earlier offers containing benefits greater than those in the New 'fork Dock Conditions. No party would offer a compromise if the party could later be held to the offer. Conditioning an agreement on acceptance of a package deal is a common tactic in labor negotiations. Thus, the Carriers could properly withdraw their October 10, 1986 proposed implementing agreement without prejudice to their position before this Committee.

The BRC's General Chairman on the C&O petitions us to automatically certify (for New York Dock protection} an equivalent number of junior Raceland Carmen corresponding to the number of workers transferring into Raceland. Section l of the Carriers' proposal provides blanket New York Dock coverage for all workers (at any location} who are affected by the instant

transaction.

The Carriers'

proposal

is simple

and

straightforward. In the control case, the ICC rejected labor's

position that

any adverse

employment

effect

should be

conclusively presumed to be merger related. 363 I.C.C. 521,

589. Whether any Raceland worker is affected by this transaction and eligible for New 'fork Dock protection must be referred to a

. ' •


NYD Sec. 4 Arb. mm. BRC and csx;c,o


Page 40


Section 11 arbitration committee·. Waycross employees moving to Raceland shall be dovetailed into the appropriate roster under the C&O Agreement.

Section 4 of the New York Dock Conditions charges us with selecting forces on a basis appropriate for this transaction. The BRC proposes that Waycross Carmen, who transfer to Raceland, retain their Waycross seniority and have a one time right of first refusal to a permanent Waycross vacancy. The New York Dock Conditions contemplate an orderly and final adjustment of forces

during implementation of the transaction. seniority defeats that objective.

Maintenance of dual Next, we adopt the

Organization's proposal to assign Waycross workers to Raceland positions in inverse seniority order. Starting with the most junior active employee is fair and equitable. The modification may have little practical significance in view of our decision regarding Orange Book protected workers. Finally, the parties should incorporate the Carriers' proposed preference tiers for

filling Raceland positions. October 15, 1986 proposal.]

(See Section 3(f) of the Carriers'

In summary, this Committee adopts the Carriers' proposed implementing agreement dated October 15, 1986 with the modifications relating to Orange Book protected employees and the right of Orange Book protected workers to elect benefits under the Orange Book as well as the proviso that forced assignments of Waycross workers to unfilled Raceland positions be accomplished in reverse seniority order.

image

•' -


NYD Sec. 4 Arb. mm. BRC and csx;c,o


Page 41


AWARD ANO ORDER

This Committee renders the following Award and Order:

l, The Committee has jurisdiction over the subject matter of this dispute;

  1. Within thirty days of the date stated below, the

    parties shall adopt the Carriers' October 15, 1986 proposal, with modifications consistent with our Opinion, as the Implementing Agreement governing the Waycross-Raceland Coordination;

  2. The Answer to the 9rganization's Issue No. l is "Yes";

  3. The Answer to the Organization's Issue No. 2 is "No";

s. The Answer to the Organization's Issue No. 3 is "Yes";

  1. The Answer to the Organization's Issue No. 4 is specified in (2) above;

  2. The Answer to the Question at Issue presented by the BRC General Chairman on the C&O is "No."


Dated:. , 1987



image image

R. P. WOJtOWlCZ J. T. Williams

Employees' Member Carriers' Member


image

image

John B. LaRocco Neutral Member