In the Matter of Arbitration
Between
United Transportation Union
Yardmasters Department
And
Southern Railway Company
Question at Issue:
Were Messrs. W. E. Killen, R. J. Tilly and T. J.
Tilly displaced and/or dismissed as a result of
the Southern Railway acquisition of the Kentucky
and Indiana Terminal Railroad Company as defined
by the New York Dock II Conditions?
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:
(a) "The KIT Trainmasters would not have been faced
with the option of accepting a transfer to
official positions on the Southern or accept a
'one time' lump sum severance allowance";
(b) "These Trainmasters would not have exercised
seniority back into the Yardmaster Craft";
(c) "The Claimant's would have been able to hold
three more yardmaster positions";
(d) "The T. I. P. S., Southern computer system,
would not be in place on the former KIT property
in Louisville, Kentucky. Small class III terminal
roads do not require sophisticated computerization
such as the T. I. P. S. system";
(e) "The tower Yardmaster would not be able to use the
T.I.P.S. computer system to 'drive' work orders and
switching instructions to the yard crews working in
the Fairground/Junction area."
Page 3
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:
(a) There were no Southern Yardmasters within the
Louisville Terminal at the time of the acquisition
of the KIT and thus no rearrangement of forces
occurred at that time;
(b) The exercise of seniority by three Carrier officials
in 1982 followed a rearrangement of supervisory
positions at Louisville and cannot be connected to
the action that impacted on the Claimants in 1986;
(c) A decline in switching at the Louisville Terminal, in
part, had an impact on the Claimants' assignment.
Page 4
(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:
Page 5
Section 1
Definitions -
(a) "Transaction" means any action taken pursuant
to authorizations of this Commission on which
these provisions have been imposed.
(b) "Displaced employee" means an employee of the
railroad who, as a result of a transaction, is
placed in a worse position with respect to his
compensation and rules governing his working
conditions.
Section II
(e) In the event of any dispute as to whether or
not a particular employee was affected by a trans
action, it shall be his obligation to identify the
transaction and specify the pertinent facts of that
transaction relied upon. It shall then be the
railroad's burden to prove that factors other than
a transaction affected the employee.
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
Page
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:
"However, the effect of subsequent internal technological improvements by either of the Carriers,
even if made possible by improved financial circumstances partly attributable to the unification
of control, is too indirect and remote to be
considered a result of the transaction and it is
not our intention that employees affected by such
internal improvements shall be entitled to the
benefits of the conditions."
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.
AWARD
As specified in the opinion.
~Eckehard Mue's'sig,
N~U
al Member
M. C. Kirchner, Carrier Member D. R. Carver, Employes' Member