United Transportation Union
Yardmasters Department
And
Southern Railway Company





FINDINGS AND AWARD

BACKGROUND: On December 8, 1981, the Interstate Commerce Commission (ICC) approved the Carrier's request to acquire the Kentucky and Indiana Terminal Railroad Company (KIT). New York Dock employee protective conditions were provided in connection with the ICC decision to approve the acquisition of the KIT by the Carrier.
At the time of the acquisition, the Claimants were not affected in a substantive manner. Slightly four years later, on February 16, 1986, the Carrier abolished four yardmaster assignments at the Fairgrounds and Junction area, Louisville Yard Operations. It is this action which triggered the dispute before this Arbitration Committee. The Claimants, after the displacement, did not stand for yardmaster assignments and exercised their seniority rights to other positions pursuant to the parties' Agreement. In April 1986, the Claimants filed for protective benefits afforded
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under the New York Dock protective conditions. They contend that their displacement, as noted above, was caused by the Carrier's acquisition of the Kentucky and Indiana Terminal Railroad Company (KIT) in December 1981. The issue was then progressed in the usual manner and placed before this Committee for resolution.

CONTENTIONS: The Organization, in its well-reasoned position which it has supported by extensive rationale in its submissions and skillful arguments before the Board, has cited a number of events which it submits are directly linked to and result from the Carrier's acquisition of KIT in December 1981. The Organization's basic position is that, but for the Southern's acquisition of KIT, then:














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In summary, the Organization recognizes that a direct causal nexus must be established between the December 1 acquisition (transaction) of the KIT and the displacement of the Claimants. It avers that the circumstances and events, as noted above and supported by its lengthy submissions, clearly establishes a sustaining case and the Committee should so find.
For its part, the Carrier, also with well-reasoned and extensive rationale in the record and skillful arguments before the Board, mainly maintains that the changes that affected the Claimants came about because of an operational decision; a decision which was based upon business conditions not related to the acquisition. Essentially, the Carrier, in summary, contends that:



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(d) The TIPS computer system had been in place over
five years prior to the abolishment of the Yard
master positions in 1986 and there is no evidence
that such changes would not have been made by the
KIT had it not been acquired by the Southern. More
over, it cites and relies upon 1963 ICC Finance Docket
21400 Southern Railway Company - Control-Central of
Georgia Railway Company which held that post
acquisition technological changes which affect
employees is too indirect and remote to be considered
a result of a transaction. It contends that the ICC
holding substantially fits the key issue before this
Committee and, thus, should be applied here in
reaching a decision.

Accordingly, for the foregoing reasons, the Carrier submits that the Organization has failed to meet its burden because it has not identified a transaction that adversely affected the Claimants and consequently, the claim must fail.

FINDINGS AND OPINION: Basic to a determination as to the
triggering of employee protection benefits pursuant to the
New York Dock conditions in the case before us are the following
New York Dock provisions:
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Section 1

Definitions -





Section II









The Organization, as the moving party to legitimize its claims, must first identify a Section 1(a) transaction and then, pursuant to Section 11(e), identify the ""pertinent facts of that transaction relied upon" to support the claim. On the evidence properly before us, we find that the Claimants have not met their burden, mainly for the reasons that follow.
First, while we are not unmindful that the definition of a transaction is broad, it is evident, on the basis of prior arbitral and ICC holdings, that not every work force adjustment constitutes
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a transaction. Furthermore, in a realistic sense, with respect to the issue here, the time that has passed has made it more difficult to draw a connection between the acquisition in 1981 and the subsequent abolishment of the Claimants' positions.
Second, and closely related to the time factors noted above, KIT provided Southern with long-standing terminal facilities and services at Louisville. Consequently, at the time of the acquisition, there was no coordination of KIT and Southern Yardmasters because Southern did not have Yardmasters at the affected locations.
Third, there has been no substantive showing that the exercise of seniority by three Carrier officials in 1982 was caused by the acquisition or adversely impacted on the Claimants four years later.
Fourth, the evidence does show a decline in switching at Louisville.
Fifth, with respect to post-acquisition technological changes, it is not overly speculative to conclude that Carrier's TIPS computer system had some impact upon the utilization of personnel in the Louisville Terminal. However, no Yardmaster positions were abolished following the implementation of TIPS. Furthermore, given the ready availability and the overall state of computer
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technology, there is nothing to establish that the KIT would not have implemented a similar change without the acquisition. Lastly, on this point, the ICC, in its ruling earlier cited, clearly addressed the technological change arguments when it held, in part:



Accordingly, and after full consideration of the parties' submissions, cited holdings of various adjudicating bodies and oral arguments before us, we conclude, primarily on the weight of the foregoing, that the Claimants were not displaced and/or dismissed as a result of the acquisition of KIT by the Southern Railway.




M. C. Kirchner, Carrier Member D. R. Carver, Employes' Member