IN THE MATTER CAF ARBITRATION BETWEEN
GERALD J. HUG-SINS,
 LIUDELL 3. RUDLOFF,
 ERVIN J. BLOESS and
 EUGENE h. MOORE

NVRPOI& Ala) WESTEW,t RAILWAY CO.

 Pursuant to New York Dock II Conditions

 -------------------------------------

 DECISION

 BOn June 28, 1985, Robert 0. Barris was nominated by th: Hationzl Mediation Board to serve ae the neutral member of to York Dock arbitration coaunittee to resolve a dispute involvi::. the Norfolk auzd Western Railway Company and four former non-ut*= employees of the recently merged Illinois Terminal Railroad, pursuant to Section 11(a)' of the ~~t~.XoLJk ock II conditions. Mr. George C. Ripplinger, Jr. was designated as the representative of the claimant employees and Mr. Marcellus C. Kirchner was designated by the Norfolk and Western Railroad as its couunitteee member
 A hearing was held on September 4, 1985, in Chicago, IL, at which each of the claimants as well as the Carrier had an opportunity to present oral testimony as well as documentary evidence and briefs to support their respective positions. Thereafter, on October 21, 1985, the parties submitted additional
 written comments.

 Tire natter is now ready for resolution.

 ('..x Juae 19, 1901, tho Interstate' CorLrerca Cor: pass tar: (FCC) authari$Gd the Norfolk and Uostern hnilroad (Pd & 1:) to Acquire sufintantially all of the assets of the Illinois TerrninAl Railway Company (I2) in Finance Docket Ka. 29455.- 'he parch^r:-~ u-r: consummated on Septeniber 1, 1981. The ICCp as park: of its approval, fiui,nned certain .labor protection provisionc_. which are com·rionly ref erred to an XDv
 1. 7CQ.F~.~k II conditions (.'sGa ICC 6U) . Undar these coiiditiona cit-wployeea affected by a trnns:zt:d.ion are guaranteed ceatain campena,tion for a period of tip to six yoarR as well an other benefits. As will be discussed more fully below, Claimants herein were management officials of the IT and were notified by letter, dated August 14, 1981, and signed by John R. Turbyfill, Chairman Board of Managers of the N & W, that their cervic:: wish tae IT would no longer be required after September 1, 1981. The letter went on to say:

 In recognition of your service to Illinois Terminal and in order to aid you in making a transition to another situation, we will provide you with one year's salary with appropriate deductions on Septerb-ar 1, 1981, as a separation allowance. On November 10, 1983, Claimants' attorney notified the N & W that, 'As the ICC has declined to intercede in this matter and has directed us to undertake arbitration, I am hereby making
 demand upon the N & W to arbitrate the disputes..."

 Issues APnted



8is,~Able S t 3t a la,tya.Bd

      49 United States Code Section 11347. Employee protective arrangements in transactions involving rail carriers.


When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interest of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 405 of the Rail Passenger Service Act (45 U.S.C. 565). In accordance with this statutory directive, the ICC set forth the protective conditions required in its decision in New York Dock II, Appendix III (360 ICC 60) and defined covered

 employees as follows:

                    Article I

1. - Definitions...
          (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.

          (c) "Dismissed employee" means an employee of the ai1road who, as a result of a transaction s deprived of employment with the railroad

because of the abolition of his position or the loss thereof as the result o£ the exercise of senioriEy rights by an employee whose positiois is abolished as a result of a transaction. (d) "Protective poxiod' means the period of time during which a displaced or dismissed employee is to be provided protection hereurides and extends from to date on which an employee is displac=·,,d or dlru,i sand' to the expiration of G years th -rr^-_fram, provfd.2d, hc~::ov~rr that the protective harkjd for arty particular cinployce shall not continue for a longer period following the date ba wns diaplaaed or dismissed than the period during f-·hich such ,=~wpl oyae was in the employ of the railroad prior to the: date of his dispInceuient oz diai«isRal. For purposes of. t.hi s appea dix, an eu:ailoyce ° s length of service shall b_ determined In accordance with the provisions of sactiua 7 (b) of the T-lashington Jot) Protection Agreement of Nny 1936 0 x f.

      %. ~~p<Arutlon al7owanc=.-< di >wisscd e!q)loyca elltitlcd to protection uaadar this appendix, may, at option within 7 days of his dismiss,)., resign and (in lieu of alb, other. 1)v, efits grid protections provided in this appendix) accept a jump sum paymeni: computed in accordance with section 9 of the Washington Job Protection Agreement of flay 1936.


Article IV of the same Appendix states:

 .Employees of the railroad who are not represented by n labor organization shall be afforded substa,itxally the same levels of protection as are afforded to members of labor organizations under. these terms and conditions.

 In the event any dispute or controversy arises between the railroad and an employee not represented by a labor organzation with respect to the interpretation, application or enforcement of any provision hereof which cannot be settled by the parties within 30 days after the dispute arises, either party may refer the dispute to arbitration.

 EAR

 Each of the four Claimants was employed by the IT in a
 position which was listed in the annual report of the IT as "Management" and one, Mr. Rudloff, was appointed by the Board of Directors rather than by the President of the IT. They were also listed as tha herd of their respective dcpartu;ents on a list, of "All Apilointed Non-Contract Positions". Their duties and job histories may ire summarized its follows:
 Mx. Li ndell B. Rudloff was first employed by the IT in 1341 as a clerk nad was a member of the Brotherhood of Railroad and Airline Clerks. In 1962 he was appointed Assistant to the General Auditor and left the bargaining unit, although tie retained seniority until his final separation in 1981. In 1965 he was appointed Assistant Controller; in 1966 he was elected Treasurer= in 1970 he was appointed Controller= in 1978 he was elected Chief Financial Officer= in 1979 he was elected vice President - Finance and later Vice President - Finance and Treasurer. At the time of his separation he was paid $43,600 per annum. Mr. Rudloff t=sti£ied that when he received his separation notice he did not attempt to exercise his clerk seniority and did not know that he could do so. He indicated that he thought that the N a W would notify him if he had any rights other than the receipt of one year's termination pay. The job description for the job of Vice President - Finance acid Treasurer lists the major function of that office as, 'supervises and directs all finance, accounting and data processing functions of the Company.' He was responsible to the Board of Directors and reported directly to the President of the IT. Eight individuals reported to him.
 Mr. Eugene F. Moore was first employed by the IT as Chief, Special Agent in 1'968. He had previously been employed by the Terminal Railroad of St. Louis, beginning as a patrolman. When employed by the Terninal Railroad he had been a member of a bargaining unit= however, as an employee of the IT he had never been in a brrgaining unit. Mr. Hoore was pramat:J to Director Security & Special Servicesf and in 1977 h`came Chief Security Of ficerl in 1978 he became Director - Special Services; ire 1979 ha becaro;-, GFaeral Superintendent which urns bis first job outsid: of police work. In that capacity he was xouponsib.le for: the "direction, execution and management of the Transportation, n`chan.icml and Engineering Depaxtments." While one of his lists job dutias uaa being responsible foz the budget for tha activi ties uadar his jurisdiction, he teatif iea that h2 never performed this function. At the time o£ his separation he was being paid $38,000 per annum. He reported to the Vice Presidai - General Manager and in turn fourteen individuals, including S General Superintendent Motive Power and Equipment, reported to him.
 Mr. Gerald J. Huggins was hired in 1975 as Trainmastec. h had previously been employed by the Rock Island Railroad and ha, begun work as a switchman within a bargaining unit. He had worked his way up to fireman, engineer, and then became acting roadman of engines for the Rock Island. In 1976 he became General Road Foreman of Engines for the IT= in 1977 Superintendent of Motive Power; and in 1978 he was appointed
 General Superintendent - Motive Power and Equipment. At the time of his separation he was being paid $33,900 per annum. His major duties were supervision of repair and maintnnwice of locomotive power as well as all lighting, electrical and heating systems in all shops and repair and maintenance of. all strop machinery. He repci.rtea to the Vice President a Caneral Naniar ; thrse individuals reported to him.
 Mr. Ervin J. Rloess was first hired !ay the IT in 1946 as a Clerk - Accounting and was at that tuna! a ~n·.na~ae~: of a bargaining unit represented by the Brotherhood of Rni 1 read anc9 Airline Clerks. In 1949 ho was promoted to Chef. Clef-!. Purchasing; in 1959 he was promoted to Purchasing Agents in 1973 he became Director of Purchasing &.Kafierials: in 1978 It.- was appointed Director Materials Managcsment. At the tiffe of his separation he was being paid $37,945 per annum. QA was in charge of procurement for the IT, including the leasing of both the automotive fleet and the rolling stock for the railroad. when notified of his termination he did not attempt to use his seniority to go back into the bargaining unit from which he had been promoted in 1949. He reported directly to the President; three individuals reported to him.

                  Contentions of the Parties

Claimants contend that they are employees of IT; that they owned no stock in the IT; that they did not sit on the Board of Directors of IT; that they did not negotiate their own salary,
 benefits, or conditions of separation and that they are accordingly entitled to the protection afforded to all other IT omployees by she ICC as part of its order in Financu Docket N70.29455, granting F;a_YQ_rj1._Pog,_jL conditions.
 The Carrier canrcnds that tie historical development of ~eat~:ti.~: b-=A_·Ma iii the railroad industry, the legislative history ()AF: cAif:adera.l glvernwo nt ' a regulation or sci ch bcaefits through M^;:tioa h (2) (f) of the lnter^tata Cnoinorce Act. (49 v.S.C.
 !a.-;.:;:Z,.--,-~n:Knt an:' applicativa of razotcctivc benefits by
 f:t,~ICG _~nctt~:~ c~c~uri.~, and railoyay industry practice alt lead to
 tlxe ine: c~:ph:t~ cna:.:litsion tbaf- Claitoaritr-, ras former top
 officiaxe of tt:ta ii°, L·ara not "employces° wis:htif the coverage of
 t.h= Now,Y~.~:h _x? ~-.~-_r conditicas pat ache tire of their terminatioi;,:a Yhz Gay Tier further con; end tlrlt the M!w York Qrk-I-T, conditions developed out of an historic legislative rowprornD;-join: ty rroposed by railroad management and labor to protect the rank and file members of railway labor from the adverse effects of mergers and consolidations In e. change for an agreement by railway labor not to oppose such transactions by strike or other forra$ of self-help and that a review of the only two arbitration awards that have addressed this issue shows that carrier "officials' tire not entitled to the benefits of the H&W =rk Dock_u conditions.
                    Discussion


The definition of "employee" was assumed without discussion
 by all Carriers and their employees for many years. The first
 arhitral decision occurred in April, 1968, and the second this
 year. Thare hnve, hot-over, baon several court decisions
 att~-aipt inq to define "employoc" for the purpose of ICC-imposed
 ~af?7r pt ot~zcC:l d ~l ill rkipa
              fJFZ, PtlXth?lC1toE:ef ~l~pry *;~ ~h6: r-.· "Oloye~, ii<

ccll i:k! tT.az Interatate CoFr.a?arrQ Act` i'}' ~.ft ~1~:~,:): C':~i.'~n~'~ ill thai. Act. Simply btudyxng the exit iroology of the ,:ord °eptployea" will riot suffice; rather it will be neocsa:ry to review the specific E; oE that-.-.s~r~ by the %CC and the c:o«fi;;; in :,:a,: cootext of job protrrction
 Tltq h, ;story of the use of tha terru "employa s" appRrently
 gi-o Titl.-h %II of the Transportatit-is :ou o 192.0, whir.i)
 y,:... .mc : ci-alt with disputes between carriers and Lhcir einptoyces and subordiar.~y officials. The definition of subordinate official was delegated to the ICC which was to make thdefinition by regulatioD. Tale ICC in ~:~ Parke 72, on February 5, 1924, listed the various positions which it considered to be subordinate offxcinla. It indicated that it would upon request attempt, in subsequent proceedings, on a case-by-case basis, to add to the definition of who was a subordinate official. It should be noted that none of the Claimants were subordinate officials under the ICC definition. Subsequently, in 1926, Congress, in an attempt to further regulate the relations between carriers and employees, passed the Railway Labor Act. Congress again made reference to employee or subordinate official as defined by the orders of the ICC. Because of the unrest in the railroad industry, in 1936 the
 carriers and the representatives of th^ organized employees entered into an,agreement which has become known as the Washington Job Protection Agreement. That agreement is tl)c direct linear predecessor of the ~.~;,.3_'~x_~:.. ~~?^~_. x~t. conditions under which Claimants seer prot,2.7tcinn. Hawzver, ootwithpU-nding that Agrconient, an attempt: Haas t:adr to get furthat 1egis:~ --itfc,a from Congress, which would a1.Zr·:r eac,:nter _lc:-~.k~ilix c.:n take v)--ix".: of th= T_CC in allowing consolid:--tionz and ):-rc~ra. ::'hs hef,tings which formed thm basis for tl-.?s~:ae~enf. Zct~):~.ioh f.nr7.««:3 testimony icy George- M. Harrison= tli? Presfd~·all- of thr: 11"lerf'q Union, recommending that there he OAair and rc^son?blc, protc~-,ctiorl for the rights and interests of th°· workern th:;t vp.y f->~:! adc,Qrsaly affectedw 6y any margcr. In rk:;~rtie to ~c qu:::stiari rerjardrig ti1* possibility of protection for i?:~tit~ft-jt1fexrt ~.::L~3:':; si.ncD they miglst also be affected, Mr. Harrison noted,

 Most of our supervisory and management staff members have been promoted from the ranks. They retain their rights to the classified service while they are so occupied, and, should they discontinue a position of one of those persons, they would then slide bnr,; ox: go back, I should say, to the classified service. (Report of the Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 2531, 76th Congress, lot Session, at page 245 (1939). In other words, union labor was suggesting to Congress that management at a level above subordinate officials was not in need of the type of job protection that was suggested by Section 5(2)(f) of the Interstate Commerce Act, as amended (49 U.S.C. 11347) . - There was the additional implication that the Washington Job
 Protection Agreement was not intended to cover management at a level above subordinate officials since such management officials would most probably have the ability to bump down to lower level jobs if need be.
 Claimants have indicated that whatever the narrow interpretation of the word "employee" may have been in the minds of Congress prior to 1940, the Staggers Rail Act of 1980, by extending protection to employees of rate-bureaus and then stating that "the term 'employees' does not include any individual serving as president, vice-president, secretary, treasurer, comptroller, counsel, member of. the board of directors, or any other person performing such functions" must have keen intended to clarify 49 U.S.C. 11347.
 Unfortunately for Claimants the ICC has not taken the view they espouse. In describing the employee protection which they ordered in this very case, the ICC noted, "Yet NW plans only seven transfers of 'agreement employees'..." Apparently, in 198L when this merger case was decided, the ICC still was differentiating between types of employees based upon their right to secure collective bargaining representation, whether or not they in-fact had such representation.

                            I T

                            L

Ciaimants have not contended that they are "employees" or
 "su;Dorainate officials" as those words are used in the Railway
 Labor Act. In fact, Claimants contend that it is wrong to
 consider the definition of employee under the Railway Labor Act
 in ju('gxng the correctness of their claim to h:- 'employees" for
 piirpo!~;.-~s of job protectioti.
 Whit a the couri*.s may not be in agrcemrni , t h:~ IC's vie: is
 coats:; ned inn xf_u e1ccision in H.- -'r'
 .r_i_7. r~,:,~; 3656, :C.C.C. 64 (1981) a 111 that c:;;.; 1 rw ;~tnt.ol·;=a o t.~.
 Western N"'Irylard 1'ailroac? hzd a~,P-aled to tlj:-- iC;: co,AI)laining
 f~x~f~ 'Leer awployce protectioa provisions whicl', i t ii nd ti,iaoazd Iii;ca
 not ~::.; n obnc_·rv,~d in IAl r; ca sr. A review boz,):6 gar th(A Comi scion
n1jpz=rc-W-l.y riot 5ubjec~ to the Cor,-9..tsuion'A prr·te,:tion..a Mr. AP-1). auhs.:a,tc::tt.l.y anp-~';Wled thirs dacir:ioia to th- full Cowiiiitv .ion. It, i~:= u~·c'.sioii which found that th.= ram tt~·x should I_ i.aadled icy ~lrtj.i~Y~, .?.Cil` hF)':' ~,:0?i'i:?i.taS;(it~ wnda Rabera! utj!, ific'1_iC Coi^.utntS (fit the contentions raised by the parties to th~, instant case. Mr. Ee1I. Ira y c o:itenclcd dint his atatuH ahould 13o d--1L~-.-mlncd by the rcc definition of the w=ord "employcew under. the Railway Labor hc:. i.r: its decision. the ICC renpoKidrd to this conL,~ntion:
via are required to classify employees under this act for purposes related to employee representation, collective bargaining and jurisdiction of the National Mediation Board. our power to classify employees under this act is limited and does not extend to the classification of employees for the purpose of employee protection. The Commission then went on,
      Where we have specifically prescribed arbitration as the remedy for employee complaints, we no longer have authority to become involved in disputes between a railroad and individual parties arising out of the protective conditions.

Finally, the Commission noted that "...the question of whether Mr. Vs?.1.'a pcoitJon teas labor or msnfAgem-nt is a proper matter to b rc-9.tvc:d at-arbitration ..." thereby clcanrly implying there ware di ffereat employ*e groups rind that an arbitrator should di:f~:. . :;a~:i.~t.ct~::c~con various groupz iqf ~_::,a~x~s in applying t.t~ Mbo: f~::c.~.~f:i:.i·~ pYQvi siona enunciatel in i.° . _ Yrt:_ ~;~c~, ....T,~

                          Iii

C_1~iwaats really are contending that Lhey are entitled to
 job;;~; tiari regardless of what they ai:e called. Claiuiar~s
 L,^1 ; ~._v .a ::.scat the Uord "employca" ahoul d b. givoa its broad S;:
 r_Ei~ 1~<~ ';or pv rpo::es of job protection r Ire sud port of their c? _:1 m
 they city tire decision in H1wbo_Kng v. c`r,n.urc~.y~es
 ~t~i. t-~c~_~c,~ny, 753 F. 2d 193 (5th Cir. 1985) .. Claimants
 indicate that since they do not meet all of the tests set forth
 in t?:~;~gorls, they, unlike Newborne himself, should be covered by
 th.^-.. labor protective provisions. The Rekb"ag case involved
 appeal rom a finding by a district court that claimant was pc,z L.
 of management at the time of his termination and therefore not
 protected by New York Dock. In affirming the lack of protection
 the Court listed seven factors: (1) appellant was a supervisor,
 (2) his salary was $43,200 a year, (3) he clearly would not have
 been eligible to be part of the railroad bargaining unit
 representing "employees", (4) the record strongly suggests that
 plaintiff's skills were transferable, (5) he did acquire a new
 job shortly after being terminated by Grand Truck Western as an
 administrative vice--president at a salary of $45,000 a year, (6) he E-.~.s oric of only 17 executives with his former employer who were protected .under a Salary Contijiua~ ion rlan, arid finally, (7) t4~;,·E~;~a~e, under the Continuation Plan, contiroiod to receive his previous salary for six monthu after 1O.P di~.~.r:>.~1. 't~w C.)uxt faic.~:~h act forth t-he weight to be c~.~.~:s to.t^~:~ f:i6_orc:
 V31--to 1, 2, aad 3 numbered abova AKr~ fs:·~. di.spouit.iee of this appeal. When, howcvcr, F"~= .z' S, 5;, 6 an~I 7 are addjA, they appear to tip the hal;auec it., c::~·~ cflx aff rmance of the District Court's judgement, Claimazits maintain that since they have haon una~)?_e to obtain equivalent jobs and were not pros ectc4 uaaer -am type o£ salary coi!tinuatioa plan, the final four criteria criusiaiated by the Circuit Court have not basal wnt a il.ccorflingly, Claimants believe that if all of the facts cited by thow Court have not been met, they will be considered to be protected. It is clear, however, that criteria (6) and (7) were met even though there was no formal salary continuation plan. Claimants received salary continuation for an entire year. It is true Claimants, for whatever reason, have note been able to obtain equivalent employment. Whether that factor alone would be enough to carry the day for Claimants is subject to some question. There is no indication on the record whether or not Claimants' skills were transferable. In theory one could concludc that they were, but in practice apparently they were not. Another court case, which was cited by both Claimants and the Carrier is Edwards v.Southern Railway, 376 F.2d 665 (4th Cir.
 1967). In that case the son of the former General Manager and a stockholder in the company was the Chief Enginaer and he claimed protective benefits. The Court fotarid that:

 .. . "employee" as used in th~2 prosent cont,:!Kt by
 Congress and the ICC surely do=s not incli0s,
 the principal managc:Ks of a xnIlf=oao who ordinarily
 are in a position to protect tl!3
 cnn::~:-ucnces of consolidation.
 The Court `then footnoted two cases. xn orxe, the court had
 followed , .. ohed the definition, of wemplo-,:,-A . ~ rarit:I-,ineo in the ._ Nail::~ay
 Labor Act. In the other, the caur t concluded that the
 legislative history of Section 5 (2) (s) of tha _Xatersi~ate Cortdn=rce
 Act "leaves no doubt that the terra ' er~rd loyec ° as used therein
 does not inclrde the vice-presidant rind cj^acral ruaazagar of a
 railroad.w

 IV Ther,e have been two arbitration decirions involving the definition of "employee" for purposes of labor protection. In the fi,tst, p;Vrd No. 51 of the
                            ~t.X_.~.C.QLg~.:~.~.

NO, 23011, Referee David R. Douglas hold:

      The Record in this case shows that the claimant was not,'employed in any craft or class covered by the bargaining unit during the period from February 1, 1964, until September 20, 1966. During, said period of time the claimant was an official of this carrier and, as such, had vciuntatily placed himself in a position beyond the coverage of the protective features as prescribed by the ICC in Fiance Docket 23011. The claimant was not an employee, with the contemplation of the protective features, at the time of the merger or at the time yardmaster positions were abolished.

In the secolid case#, n,d
                      _,Arjd_p,XJ.W paLc_ir, a j.l r~a.~, deca,ded

September 25, 1985, r.amont E. Stallworth, the neutral member of an arbitration committee appointed purstisnt tv I1.;w_yo~;I~Q~c_ conditions found that neither the Assir~trrit Cot!trolter-Accounting Cperntoras lion the Manager Personnol Accounting L,Qre inn

 crr~pt.,~y~,~ r3On;j,zot fro the protection of tl:a ~_=~:~. yo: k_ n~
 CUI1dit iah!.3. 'A iKkJt·A ' O1:' $fc:4llvarth rcv vL:n.; ::3 fr·::. c%x_ir er:
 i ElhiC i
 C!:,k1~-.aLs bava cited in this cm-se Pnd ^3peoI_ l l.y clt St:zll;5U
 i r~..
 t.Lxo.~:~:j_.;f d-acisAeu, .rita.d above, noting .-

      that tho court in &yhopr,= die, disLjncsuish ~.:i~;;: Cje.I.mant n:: Nwi11g a part of ~il£.ilc~2~7;'fl- Lit: the= ti:r~ · of h1s termination. This distihc~ -inn ;,r,pa - (--atly in UIla Court's view brouc~h~:

                                      ~l.t

      cl«za~:~1T` ontpida tha definition of employr-,~ o


    .'_" i ~:li i: i ~Z`', r no'-,`d ill Ow-1 d-acia ion tha . tit % 13,!;·'- o 1F thn i:azr,:


f:~f311.:~,·ixC:~`i?~lli' G't~:` Zn11E:~" ::,s not intendac3, ally fl'? w . -1 j l1sa,7L°, 4. L?

 cftend to encowpa:.5 'officials" or 'principal mcsn~qcrsp.

 Thin Coruniti ee is ;not persuaded that the gc-aaric definition of employee is the once intended by Congress or by the ICC.
 Despite the very able presentation by counsel for the Claimants, the Committee is of the view that the Staggers Rail Act of 1980, by amending the coverage of the labor protective provisions to include employees of rate bureaus, clearly indicated that it was not Congress' intent to include within the protections, either of the positions of 'treasurer' or "comptroller". Accordingly, whatever argument could have been
 made prior to 1980, since that date, Mr. Rudloff as Vice President - Finance and Treasurer of IT clearly was not included within the labor protections afforded by the ICC to former employees of. the IT.
 '1 'he decision regarding the other three Cl aimaiit:s must be made on the basis of logic, reasoning, and the general history of the railroad industry usage of the word "employee". As noted in the discussion above, the ICC has nevei taken a broad view of. the term "employee".
 While labor protective provisons were creatcd because of the insis'enre of organized labor, the ICC realized that if organized labor was to be protected, at least the unorganized worker in equivalent jobs must also be protected. But the ICC clearly differentiated between "labor" and "management" in Dell v. WGJte'_ rnh_Iar,y-l-and R_R, supra. It has regularly differentiated between "management", "subordinate officials", and "employees". It has, furthermore, left to arbitration the exact line to be drawn between these categories.
 The Claimants contend that if there is a group called management, it includes only the members of the board of directors, the president of the railroad, and, where appropriate, stockholders. This restrictive view, while superficially appealing, belies the traditional usage of the term in the railroad industry. In the Annual Report of the IT all of tLie Claimants (and six other individuals) were listed as Management. Claimants clearly held jobs of great responsibility
 on this small railroad and effectively controlled its ability to ,2erate on a day-to-day basis. The fact that the IT was a small terminal railroad, which did not pay high salaries, in no way diminishes Claimants functions or reoponsibilition in relation to the other employees of the IT.
 This Committe3 is not persuaded that merely bziny unable to find suifiablo employment subsequent to terTiiiaation by s r~iltx,cid is sufficient grounds for finding covarage andertew__xG~k_ r~ z, conditions. It does not believe that the Court ill ~c·cr~ur.~waq implying so simple a test. For the same reasons, it is not, persuaded that the controlling fact in Fc7_m-j_tdq was the facl: shat the individual was the son of the chief stockholder of n small railroad. Rather it is the level of responsibility that is nherent in the position that a particular Individual hey 0 o This is true even where, as here, the salary of the individual is not comparable to that paid to individuals who hold similar positions on larger railraods.
 Accordingly, it is this Committee's conclusion that, based on all of the facts present in this case, the Claimants, Huggins, 1Cloess, and Moore are not 'employees" for purposes of the protections afforded by the view York Docker conditions. It is, therefore, unnecessary to reach Question B. raised by the parties.
 Neither the Carrier nor the Claimants have raised before the Committee the effect of Section 7 of Appendix III. This Committee, therefore, has not ruled on whether the acceptance of
 Georg . R finger, Jr.
 e Cla' is
 (C$$ft r/Dissent )
 November 26, 1985.

 one year's salary as a lump-sum payment by Claimants has waived any other rights which they might have had under other sections of the New York Dock II conditions.
 During the course of the hearing a question was raised regarding the "bumping rights" of Messers Rudloff aid Rloess, who had been prior to their promotions covered under the T'1' agreement with the Brotherhood of Railway and Airline Clerks and apparently had retained seniority in that union. Since that question was not briefed by the parties, no ruling will be made on the obligations of the various parties or the procedures which are appropriate in order for an individual to exercise such "bumping rights".

                          Award

The Committee finds that none of the Claimants was an "employee" protected by the imposition of the standard New York Dock conditions by the ICC in its decision approving transfer of assets of the IT to the N & W in Finance Docket No. 29455 on June 19, 1981.

 Rc~be~rtO Harris
 Chairman

 Marcellus C. Kirchner
 For the Norfolk & Western
 ( C o n c u r / 8ar~rr~ )