ARBITRATION ESTABLISHED UNDER ARTICLE 1 , SECTIOTl
- OF THE NEW YORK DOCK CONDITIONS
In the matter of arbitration between:
International Association of Machinists and
Aerospace Workers (District 22)
-and-
Guilford Transportation Industries
Boston & Maine Corporation)
Delaware & Hudson Railway Company)
(Maine Central Railroad Company)
Case No. 4 (Transfer of locomotive air brake
work from Colonie to Billerica)
APPEARANCES
For the
International A
ssociation~of Machinists and
Aerospace Workers (District 22):
W. F. Mitchell - General Chairman (B&M/MeC)
W. D. Snell - Asst. President/Directing General
Chairman (D&H)
For Guilford Transportation Industries:
D. J. Kozak.- Asst. Vice President - Labor Relations
BACKGROUND
In 1981, Guilford Transportation Industries (hereinafter
referred to as Guilford) acquired control of the Maine
Central Railroad Company (hereinafter referred to as the
Maine Central). On June 30, 1983, Guilford acquired control
of the Boston & Maine Corporation (hereinafter referred to as
Boston & Maine or the B & M). In Finance Docket No. 29720,
the Interstate Commerce Commission (hereinafter referred to
as the ICC)- imposed the labor protective conditions set forth
in NEW YORK DOCK RY.- CONTROL-BROOKLYN EASTERN DISTRICT, 360
ICC 60, (1979) (hereinafter referred to as the New York Dock
Conditions) on this acquisition. Guilford subsequently
acquired the Delaware & Hudson Railway Company (hereinafter
referred to as the Delaware & Hudson or the D & H) in January
of 1981,. The ICC imposed the New York Dock labor protective
conditions on this acquisition also.
On May 10, 1984, the International Association of
Machinists and Aerospace Workers (District 22) (hereinafter
referred to as the Organization) served identical notices,
pursuant to Section 6 of the Railway Labor-Act, on the Boston
& Maine; the Delaware & Hudson; and the Maine Central. The
Organization requested these respective carriers to negotiate
certain employee protection arrangements, including a Master
Implementing Agreement, with it which would govern
prospective New York Dock transactions which may affect
Machinists on these properties. These three carriers
subsequently served notice on the Organization pursuant to
Article I, Section 4, of the New York Dock Conditions.
The facts evidence that on July 28, 1986, the Guilford
Carriers served notice pursuant to Section 4 of
New York Dock that all locomotive air brake work would
be transferred from the D & Ii shop located in Colonie, New
York to the B & M shop located in Billerica, Massachusetts.
Guilford met with the Organization in an attempt to negotiate
an Implementing Agreement in accordance with Section 4 of the
New York Dock Conditions. However, a final agreement could
not be reached. Consequently, arbitration under Section 4 was
invoked. The parties agreed to submit this dipute to the
undersigned Referee pursuant to Section 4. Hearings were held
before the Referee on November 6, 1986. Guilford and the
Organization appeared at that hearing and proffered extensive
evidence and arguments in support of their respective
positions. Based on the evidence and arguments advanced by
these parties, this Referee renders the following decision.
FINDINGS A1TD OPINION
On October 9, 1986, Guilford forwarded the Organization
a final proposed Implementing Agreement under Section 4 of
the New York Dock Conditions. That proposed Agreement was
similar to several other proposed Agreements discussed with
the Organization at the conference held on August 14 and 15,
1986 with one exception. Unlike other New York Dock
transactions on the Guilford properties, there is no full
time position at the Colonie shop currently performing
locomotive air brake work. Guilford's July 28, 1986, notice
listed Machinist D. Placido as being affected by the transfer
of locomotive air brake work from Colonie to Billerica.
However, Mr. Placido owns a full time Machinist position at
Colonie which will not be abolished by this transaction. His
name was-placed on the July 28, 1986, notice because Mr.
Placido occasionally performed locomotive air brake work at
Colonie and Guilford wished to give him the opportunity to
follow this work to Billerica if he so desired.
Since Guilford intends to transfer all locomotive air
brake work at the B & M shops in Billerica, it is willing to
establish a full time Machinist position at Billerica to
cover the air brake work which was formerly performed at
Colonie. It suggests that a fair and equitable method of
filling this position is to offer it to all employees on the
Colonie Machinists' roster in seniority order. If a Colonie
employee fails to bid on this position, Guilford will offer
it to furloughed or unassigned Machinists on the B & M
seniority roster and, if necessary, the position will be
filled by a new hire.
The Organization wishes the arbitrated Implementing
Agreement to provide that should the senio-r furloughed
Machinist on the Colonie Machinists' roster elect not to
transfer to Billerica he shall be entitled to full New York
Dock benefits. This precise issue was addressed by the
Referee in Case No. 1 (Transfer of wheel shop work from
Oneonta and Waterville to Billerica) which involved a dispute
between these same parties. This Referee ruled that employees
who refuse to transfer with available work are not considered
"dismissed employees" and are, therefore, not entitled to
either a "dismissal allowancelt or a "separation allowance"
under the New York Dock Conditions. The findings in Case No.
1 are equally applicalbe to the instant dispute and shall be
incorporated by reference herein.
Based on the foregoing, if a Machinist on the Colonie
Machinistsf roster refuses to transfer to Billerica with the
available locomotive air brake work, he is not entitled to
the protective benefits set forth in New York Dock. In this
Referee's ,judgment, the Implementing Agreement proposed by
Guilford on October 9, 1986, constitutes a fair and equitable
arrangement for resolving the transfer of locomotive air
brake work from Colonie to Billerica. It shall therefore be
the arbitrated Implementing Agreement governing this
transaction. That Implementing Agreement is incorporated into
this Award and appended hereto.
8~
J.K
40:7-
Robert M. O'Brien, Referee
Boston, Mass.
February 2, 1987
October 9, 1986
Mr. W. D. Snell, Asst. President/
Directing General Chairman
Int'1 Assn. of Machinists and
Aerospace Workers
2600 Dixwell Avenue
Hamden, CT 06514
Mr. W. F. Mitchell, General Chairman
Int'1 Assn. of Machinists and
Aerospace Workers
50 Temple Street
North Haven, CT 06473
RE: Transfer of Locomotive Air Brake from Colonie to Billerica
Gentlemen:
Attached please find a copy of a proposed implementing agreement
pertaining to the transfer of locomotive air-brake work from
Colonie to Billerica.
This agreement is patterned after other proposed New York Dock
implementing agreements. The major difference pertains to
Section 3. Locomotive air brake work is not now being performed
at Colonie shop because of the severe decline in business and
financial losses caused by the secondary picketing by the
Brotherhood of Haintenance of Way Employes against the Delaware
and Hudson Railway Company. Therefore, there is no position to
abolish pursuant to this transfer of work. The Carrier proposes
to establish one (1) air brake position at Billerica and
initially offer this position to machinists on the Colonie
roster.
Notwithstanding the fact that the parties have scheduled to
arbitrate this case on November 6, 1986, the Carrier still
desires to effectuate a negotiated agreement. Please review the
attached proposal once again to determine if we can reach an
agreement. If an agreement is not possible, it will be in our
mutual best interests to clearly identify those issues that
remain in contention and present these issues to Mr. O'Brien in
arbitration.
Very truly yours,
r i
D. J. KOZAK
Staff Officer-Labor Relations
Attachment
File: Colonie to Billerica
(locomotive air brakes)
IMPLEMENTING AGREEMENT
BETWEEN
BOSTON AND MAINE CORPORATION
DELAWARE AND HUDSON RAILWAY COMPANY
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
WHEREAS, this transaction is made pursuant to Interstate Commerce Commission Decision in Finance Docket No. 29720
(Sub-No.l) and No. 29772 and,
WHEREAS, the Boston and Maine Corporation and the
Delaware and Hudson Railway Company, hereinafter designated
respectively as "B&M"-and "D&H," gave notice on July 28, 1986, in
accordance with Article I, Section 4(a) of the conditions for the
protection of employees enunciated in New York Dock Railway-Control-Brooklyn Eastern District, 360 ICC 60 (1979) hereinafter designated as "New York Dock Conditions" of the intent of
the Bbl and D&H to transfer locomotive air brake work and
component work from the D&H shop at Colonie, New York to the B&M
shop at North Billerica, Massachusetts,
NOW, THEREFORE, it is determined:
The labor protective conditions as set forth in the New
York Dock Conditions which, by reference hereto, are
the International Associations of Machinists and the
B&M.
The employee transferring to Billerica will have
his D&H machinist seniority date dovetailed into the
respective
B&M
seniority roster. The employee vtio
transfers to Billerica will retain seniority on any D&H
seniority roster on which he holds seniority,
will
retain service rights existing at the time of transaction, and will be given one (1) opportunity to return
to any D&H roster on which he holds seniority rights.
When a permanent vacancy or permanent new position is
created at his former work location the transferred
employee will be notified in writing of the vacancy or
new position. He will have ten (10) days from date of
such notice to elect to return to his former location
and forfeit seniority held on the roster at the
location to which transferred or forfeit seniority at
his former work location and retain the provisions of
this agreement. In the event a D611 employee changes
his residence and claims moving expenses under Section
7 of this agreement, the Carrier will not again compensate such employees for moving expenses for a voluntary
transfer as a result of the exercise of retained D611
seniority rights to Colonie except as specified in
Section 9 of the New York Dock conditions where an
employee is furloughed within three (3) years after
changing his point of employment as a result of a
transaction and elects to move his place of residence
back to his original point of employment.
Employees rostered at the time of transaction returning
from authorized leaves of absence, returning to service
from suspension/dismissal, or management officials
returning to agreement positions will retain any rights
that they had prior to the time of coordination. No
employee will be adversely affected as a result of a
supervisory/management employee returning to a
machinist position pursuant to this transaction.
If an insufficient number of D&E! employees elect to
follow the transferred position to Billerica, the
Carrier will offer said position to furloughed and/or
unassigned BAH employees on the B&H machinist seniority
roster. If said position still remains unfilled, it
will be offered to a new hire.
7. The moving and relocation provisions provided in
Sections 9 and 12 of the "New York Dock Conditions"
will be applicable to any employee who transfers to
Billerica pursuant to this transaction. In addition to
such benefits employees shall receive a transfer
allowance of eight hundred dollars ($800) and five (S)
working days instead of the two working days provided
by Section 9 of the New York Dock Conditions. In lieu
of the benefits contained in this Section 7, employees
may elect a flat cash payment of $2,800.
8. A. The employee accepting the position at Billerica
will be provided his average monthly compensation
and average monthly hours determined according to
the terms and conditions outlined in Section 4 of
the New York Dock Conditions with copy provided to
the General Chairman within sixty (60) days of the
transaction.
B. A "change of residence" is required and defined as
when an employee accepts a position pursuant to
this agreement which is located.either (1) outside
a radius of 30 miles of the employee's former work
location or, (2) is located more than 30 normal
highway route miles from his residence and also
farther from his residence than was his former
work location.
C. Should an employee or his duly authorized representative notify the appropriate Carrier officer
that the employee is entitled to the protective
provisions of this agreement, the appropriate
Carrier officer will respond to the claim as soon
as practicable, but no later than sixty (60)
calendar days following receipt of such notice.
The employee will be furnished a statement slowing
length of his protected period, his average
monthly earnings and average monthly time paid for
during the test period. If the Carrier does not
respond within sixty (60) calendar days to the
employee's notice, the employee will be deemed
eligible for protective benefits up to the date
the Carrier's decision is issued.
D. Copies of notices to employees relating to their
protective benefits will be furnished to the
General Chairman or his designated representative.
Such notices are subject to correction of errors,
if necessary. Failure to furnish such copy will
not constitute failure to respond to the employee's
request.
In order that the provisions of the first proviso set
forth in Article I, Section 3, of the New York Dock
Conditions may be properly administered, each protected
employee who also is eligible for protective benefits
and conditions under some other job security or other
protective conditions or arrangements shall, within ten
(10) calendar days of being advised by Carrier in
writing of his protective benefits under the New York
Dock conditions, elect between the benefits thereunder
and similar benefits under such other arrangement.
This election shall not serve to alter or affect any
application of the substantive provisions of ArtlLle I
Section 3 of the New York Dock Conditions.
10. A. Each employee dismissed/displaced as a result of
the herein described transaction shall provide the
appropriate Carrier officer with the following
information for the preceding month in which he
entitled to benefits no later than the fifteenth
(15th) calendar day of each subsequent month
on
standard form provided by the Carrier:
a
(1) The days) claimed by such employee under any
unemployment insurance act.
(2) The days) each dismissed employee worked
in
other employment, the name and address of the
employer and the gross earnings made by a
"dismissed" employee in such other employment.
B. In the event an employee referred to in this
Section 10 is entitled to unemployment benefits
under applicable law but forfeits such unemployment benefits under any unemployment insurance law
because of his or her failure to file for such
unemployment benefits (unless prevented from doing
so by sickness or other unavoidable causes) such
employee for purposes of the application of
Sub-section (c) of Section 6, Article I, of the
New York Dock Conditions, shall be considered the
same as if lie had filed for, and received, such
unemployment benefits.
C. If the employee referred to in this Section lr as
nothing to report under this Section 10 due to .s
not being entitled to benefits under any unemploy
mP,t insurance law and having no earnings from an,.
c sr employment, such employee shall submit,
within the time period provided for
(a) of this Section 10
annotated, "Nothing to
in Sub-section
on the appropriate form
Report."
D. The failure of any employee referred to in this
Section 10 to provide the information require) in
this Section 10 shall result in the withholding of
all protective benefits during the month covered
pending Carrier's timely receipt of such information from the employee. In any event, the Carrier
shall pay any protective benefits within thirty
(30) calendar days after such information is
received and verified by the Carrier.
E.
Dismissal allowances paid to eligible employees
will be subject to all lawful deductions such as
Federal and State Income Tax, Railroad Retirement
Tax, Union Dues and other applicable deductions.
This shall constitute the required agreement as stipulated in Article I, Section 4 of the protective
conditions deriving from ICC Finance Docket No. 29720
(Sub-No.l) and No. 29772. This agreement stall not
constitute a precedent or prejudice the position of
either the Carrier or the Organization signatory he:
in future transactions.
the
12. The provisions of this agreement shall become effective
on or after the tenth (10th) day following the date of
advance written notice by the Carrier to the General
Chairmen signatory hereto. Bids under Section 3 of
this agreement may be issued on or after the date of
the herein described notice.
Date of this Agreement:
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
W. D. SNELL, Asst. President/
Directing General Chairman-D&It
W. F. MITCHELL
General Chairman-MeC
BOSTON AND MAINE CORPORATION
J. J. CRONIN
Senior Director-Labor Relations
DELAWARE AND HUDSON RAILWAY C0.
J. T. DELANO
Asst. Director-Labor Relations
APPROVED:
D. J. KOZAK
Staff Officer-Labor Relations