ARBITRATION BOARD
(ARBITRATION PURSUANT TO SECTION 11
OF THE NEW YORK DOCK CONDITIONS)
"1. Whether the terms and conditions of the New York Dock formula, upon the application of which the CSX control of these formerly competing railroads was conditioned, should be applied as provided in Article I, Section 11 to an individual railroad signalman of B&O as an employee affected by transactions undertaken pursuant to that control authority.
"Was signal employee T. B. Able adversely affected on July 9, 1984 as a result of the coordination signal work in the Greater Cincinnati, Ohio Terminal area and thereby entitled to the protective benefits contained in the New York Dock Conditions?"
The circumstances which led to imposition of the New York Dock employee protective conditions by the Interstate Commerce Commission (the "ICC" or "Commission") in connection with ICC approval of the CSX Corporation control of both the Chessie System, Inc., including the Baltimore and Ohio Railroad Company, party to this dispute, and the Seaboard Coast Line Industries, Inc. (the "SHD"), are set forth in Award No. 1 of this Arbitration Board.
The dispute here at issue concerns a determination as to whether the terms and conditions of the New York Dock conditions have application to Claimant Able.
The Organization maintains that Claimant Able was adversely affected as a result of the Carrier effectuating the consolidation of certain operations in the Greater Cincinnati, Ohio Terminal area, a consolidation which it submits was specifically defined in a notice dated November 9, 1983, whereby the Carrier announced
its intent to coordinate the job functions of certain signalmen between the separate carriers at such location.
Inapposite contentions of the organization, the Carrier asserts that Claimant Able was not adversely affected by the coordination. It maintains that Claimant Able was displaced off his position or assignment as the result of the normal application of rules as contained in the Schedule of Rules Agreement.
At the time of his displacement, Claimant Able, together with Signalman H. C. Smith, was working on Force 1731 in pursuance of Section 5(a) of the March 21, 1977 Grade Crossing Agreement.
Section 5(a) of the Grade Crossing Agreement provides in part here pertinent as follows:
While the Organization urges that Claimant-Able had been working a Permanent position on Force 1731, and had been displaced from such permanent position to a temporary position before being displaced from such temporary position and back into a furlough status, the record shows that Claimant Able had been awarded a position on Force 1731 on a temporary basis effective March 26, 1984, and that he had worked on such position on a substitute or temporary basis from March 26, 1984 through July 5, 1984. The position had become vacant on a temporary basis as the result of the permanent incumbent, Signalman R. J. Earnhart, having elected to take what was described as "temporary duty on home station."
Now, with respect to arguments of the parties as to whether it was, as the Carrier asserts, Signalman S. King, a non-protected employee, or, as the organization avers, Signalman M. Ryan, a protected employee, who had displaced Claimant Able on Force 1731.
In several letters of appeal the organization essentially maintained that Claimant Able had been first displaced by Mr. King off what it alleged was a permanent position and then by Signalman Ryan off the temporary position. The organization does not offer, however, the date Claimant Able was alleged to have been displaced by Signalman King, but did indicate in correspondence of record that Claimant Able had been displaced by Signalman Ryan on July 3, 1984. In this respect, the Organization had, more especially, stated the following in a letter to the Carrier dated December 5, 1984:
The above contentions as made by the Organization during the on the property handling of the dispute notwithstanding, in a posthearing submission to this Hoard the organization submitted copy of a statement from Signalman Ryan which it said may be viewed as having established beyond doubt that Claimant Able was displaced by Signalman Ryan .
This hand-written statement from Signalman Ryan, which is dated July 6, 1984, reads as follows:
There is nothing to substantiate that Signalman Ryan's statement had been presented to the Carrier in the first instance or during discussion of the dispute on the property. Moreover, while this statement is dated July 6, 1984, and states the displacement was to be effective July 9, 1984, as indicated above, during presentation of the claim on the property and during subsequent appeals the Organization had submitted that it was on July 3, 1984 that Signalman Ryan had displaced Claimant Able.
Contrary to the position of the Organization, the Carrier has continued to maintain that it was Signalman King and not Signalman Ryan who had displaced Claimant Able from Force 1731. In its initial letter of denial of the claim, the Carrier, by letter dated September 7, 1984, advised the organization as follows:
In this same regard, in its written submission to this Board, the Carrier stated:
As the Board views the above representations of the parties it would have to be concluded, in the light of the timisheets as submitted, that if Signalman King had made an election to displace onto Force 1731 on July 3, 1984, as the Carrier says, he could only have displaced Signalman Smith and not Claimant Able, since Claimant Able was the more senior of the two employees. At the same time, since the timesheets reveal that neither Claimant Able nor Signalman Smith were physically displaced on July 3, 1984, but had continued to work on Force 1731 until July 5, 1984, that Signalman King thereby came to displace Signalman Smith and Signalman Ryan came to displace Claimant Able at the close of work on July 5, 1984.
In the opinion of the Board, the mere fact that Carrier elected to show Signalman King on its force report as being the substitute or temporary employee occupying the position previously filled by Claimant Able and Signalman Ryan as replacing Signalman Smith, may not be held to have established a proper recognition of the seniority or displacement rights of all concerned.
In view of the particular circumstances of record, and in consideration of work opportunities made available to employees on furlough in application of Section 5(a) of the March 21, 1977 Grade Crossing Agreement, we believe that Claimant Able was affected by a direct and immediate chain of displacements resulting from action taken pursuant to a coordination at the Greater Cincinnati Terminal area. Therefore, it must be held that Claimant Able was adversely affected by such coordination.
The protection to be afforded Claimant Able is limited, however, to that period of time which he was found to have been deprived of employment as a direct result of the coordination, i .e., that period of time which Signalman Ryan continued to work with Force 1731 while it was on Claimant Able's seniority district. In this regard, we understand that Force 1731 left the Ohio Division and began working on the Toledo-Indianapolis Seniority District on July 30, 1984, and that Claimant Able did not possess seniority on such seniority district. Further, that Signalman King and Signalman Brown were, in any event, considered as the senior furloughed employees accepting work on the Grade Crossing Force at the time it began work on the latter seniority district.
The terms and conditions of the New York Dock conditions were improperly denied Claimant Able. He was adversely affected as a
V. . Speakman
Organization Member