ARBIT-RATION ESTABLISHED
UNDER ARTICLE 1, SECTION
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 & Rudson Railway Company)
(Maine Central Railroad Company)
Case No. 5 (Transfer of wheel machine work from
Colonie to East Deerfield)
APPEARANCES
For the International Association,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 an 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 1984.
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 February 28,
1986,
the
Guilford Carriers served notice pursuant to Section 4 of
New York Dock that all locomotive wheel machine work would
be transferred from the D & H shop located in Colonie, New
York to a facility to be constructed on B & M property
located in E. Deerfield, 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 AND 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 did not
contain any provision which allowed employees to refuse to
transfer with available work and still be considered
"dismissed employees." The Organization rejected the
agreement since it did not include such a provision. The
Organization maintains
that the Machinists employed at the
Colonie shops do not hold seniority rights on any other
carrier. And even it they did hold such rights, the
Organization claims that in order to exercise these rights,
the Machinists would be required to change their respective
residences since Colonie, New York, is more than thirty (30)
miles from E. Deeerfield, Massachusetts. Consequently, the
Organization requests that the Implementing Agreement
arbitrated in this proceeding contain provisions allowing a
dismissal allowance, or a separation allowance in lieu
thereof,
for
those Machinists at Colonie who do not stand for
a position which does not require a change of residence.
In Case No. 1 (Transfer of wheel shop work from Oneonta
and Waterville to Billerica) between these same parties, the
precise issue involved in this dispute was addressed by this
Referee. This Referee ruled that employees who refuse to
transfer with available work are not considered "dismissed
employees" and therefore are not entitled to either a
"dismissal allowance" or a "separation allowance" under the
New York Dock Conditions. Accordingly, the
findings in
Case
No. 1 are incorporated by reference herein. The Machinists at
Colonie whose work is being transferred to E. Deerfield,
Massachusetts are not entitled to the protective benefits of
New York Dock if they refuse to transfer with their available
work.
At the hearing held on November
6, 1986,
the parties
agreed to delete from the Implementing Agreement proposed by
Guilford on October
9, 1986,
any reference to the July 1,
1968 Norfolk & Western Inclusion (DERECO) agreement. That
change is acceptable to this Referee.
In its proposed Implementing Agreement, Guilford
suggested that it is willing to provide a full ninety (90)
day advance notice prior to the actual transfer of Colonie
wheel machine work to East Deerfield. This Referee considers
this a reasonable proposal inasmuch as the B & M facility
where wheel machine work will be performed at East Deerfield
has not been completed. In the light of all the foregoing,
subject to deletion of paragraph 3 thereof, this Referee is
of the opinion that the Implementing Agreement proposed by
Guilford on October 9, 1986, consititues a fair and equitable
arrangement for resolving the transfer of locomotive wheel
machine work from Colonie to East Deerfield. It shall
therefore be the arbitrated Implementing Agreement governing
this transaction. That Implementing Agreement is appended
hereto and incorporated into this Award.
AwTi
Robert M. O'Brien, Referee
Boston, Mass.
February 2, 1987
October 9, 1986
fir. 11. L. Snell, Asst. President/
Directing General Chairman
Int'l Assn. of Machinists and
Aerospace Workers
2600 Dixwell Avenue
Hamden, CT 06514
Mr. W. F. Ziitchell, General Chairman
Int'1 Assn. of Machinists and
Aerospace Workers
50 Temple Street
North Haven, CT 06473
RE: Transfer of Wheel Machine Work from Colonie to
East Deerfield
Gentlemen:
Attached please find a copy of a proposed implementing agreement
pertaining to the transferlof wheel machine-work from Colonie to
East Deerfield.
This agreement is patterned after other proposed New York Dock
implementing agreements. The major difference pertains to
Section 3. Since the two (2) incumbents holding the Colonie
wheel machine positions are protected under the Norfolk and
Western Inclusion (DERECO) Agreement, these employees have the
right pursuant to Section 3 of New York Dock to waive their New
York Dock benefits and elect a separation allowance under the
DERECO Agreement. Section 3 of the implementing agreement
recognizes the pre-existing rights of the DERECO protected
employees to elect a separation allowance in lieu of transfer and
the pre-existing right of the Carrier to permanently abolish on a
one-for-one basis the number of positions equivalent to the
number of employees who elect separation allowances.
The second point worth mentioning is Section 12 of the proposed
implementing agreement. Since the transfer of the Colonie wheel
machine work is contingent upon facility construction and the
delivery of equipment at East Deerfield, the Carrier is unable at
the present time to provide a firm date when the Colonie work
will be transferred. In this regard the Carrier is willing to
grant a minimum ninety (90) day advance notice to the General
Chairmen to activate this agreement.
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 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,
d
D. J. KOZAK
Staff Officer-Labor Relations
Attachment
File: Colonie to East Deerfield
(wheel machine)
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 "D6ll," gave notice on February 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 B&M and D&H to transfer wheel machine work from the D6lt shop
at Colonie. New York to the B&M shop at East Deerfield,
Massachusetts,
NOW. THEREFORE, it is determined:
1. The labor protective conditions as set forth in the New
York Dock Conditions which, by reference hereto, are
incorporated herein and made a part hereof, shall be
applicable to this transaction.
Wheel machine work will be transferred from the D611
shop located in Colonie, New York to the 86M shop
located in East Deerfield, Massachusetts. East Deerfield will perform consolidated B&H and D&EI work.
Not less than fifteen (15) calendar days prior to the
date of the transaction two (2) Colonie wheel machine
positions to be transferred will be bulletined at
Colonie for a ten (LO) calendar-day period. Said
positions will accrue in seniority order to employees
holding seniority on the Colonie machinists' roster.
Copies of the bulletins will be sent U.S. Mail to those
machinists who do not hold a regular assignment at
Colonie.on the date the bulletins are posted at the
Colonie shop. On the effective date of the transaction
the two (2) Colonie wheel machine positions will be
abolished. At the end of the ten (10) calendar day
period a determination will be made of the employees
who have bid and who have been awarded the two (2)
machinist position.
In the event the two (2) positions to be established at
East Deerfield and bulletined at Colonie are not filled
as provided above, the remaining position will be
assigned to active Colonie machinists in inverse order
of seniority on a one for one basis. Such assignment
shall be in writing to the employee and within five (S)
days following receipt thereof the employee may el
ct
one of the following options: (1) accept assigned
positions in Oneonta, (2) exercise his seniority, (3)
place himself on voluntary furlough with a suspension
of all protection benefits under this agreement; (4)
accept a separation allowance pursuant to the Norfolk
and Western Inclusion (DERECO) Agreement if the
incumbent of the position is protected thereunder. In
the event the employee(s) elect option 4, this
agreement recognizes the pre-existing right of the
Carrier to permanently abolish on a one-for-one basis
the number of positions equivalent to the number of
employees who elected separation allowance.
4. The employee electing to transfer to East Deerfield
will become a
BAH
employee and work under the terms and
conditions of the applicable working agreement between
the International Associations of Machinists and the
B&M. The employee transferring to East Deerfield will
have his Dbii machinist seniority date dovetailed into
the respective B&H seniority roster. The employee who
transfers to East Deerfield will retain seniority on
any D611 seniority roster on which lie
holds seniority,
will retain service rights existing at the time of
transaction, and will be given one (1) opportunity to
return to any D6ll roster on which he holds seiiioricy
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. lie 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 D&H
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 D&A 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.
5. 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.
6. If an insufficient number of D611 employees elect to
fo'llow the transferred positions to East Deerfield, the
Carrier will offer said positions to furloughed and/or
unassigned
B&M
employees on the
B&H
machinist seniority
roster. If said position still-remains unfilled, they
will be offered to a new hire.
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
East Deerfiald pursuant to this transaction. In
addition to such benefits employees shall receive a
transfer allowance of eight hundred dollars ($800) and
five (5) 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.
A. The employee accepting the position at East
Deerfield 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 showing 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
d,ys
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 1, 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 Article
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 lie
entitled to benefits no later than the fifteenth
(15th) calendar day of each subsequent month on
standard form provided by the Carrier:
a
(I) The day(sj 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.
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 he had filed for, and received, such
unemployment benefits.
If the employee referred to in this Section 10 has
nothing to report under this Section 10 due to his
not being entitled to benefits under any unemploy-,
ment insurance law and having no earnings from any
other employment, such employee shall submit,
within the time period provided for in Sub-section
(A) of this Section 10, on the appropriate form
annotated, "Nothing to Report."
D. The failure of any employee referred to in this
Section 10 to provide the information required 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.1) and No. 29772. This agreement shall not
constitute a precedent or prejudice the position of the
either the Carrier or the Organization signatory hereto
in future transactions.
12. The provisions of this agreement shall become effective
on or after ninety (90) days advance written notice by
the Carrier to the Ceneral Chairmen signatory hereto.
Bids under Section 3 of this agreement may be issued
fifteen (15) days prior to the effective date of this
agreement.
Date of this Agreement:
INTERNATIONAL
ASSOCIATION OF
HACIIINISTS AND AEROSPACE WORKERS
W. D. SNELL, Asst. President/
Directing General Chairman-D&H
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