MAINE CENTRAL RAILROAD COMPANY * ARBITRATION ARTICLE I SECTION 4
BOSTON AND MAINE RAILROAD CORP. * OF NEW YORK DOCK CONDITIONS
AND * TRANSFER OF LOCOMOTIVE HEAVY
INTERNATIONAL ASSOCIATION OF * REPAIR WORK
MACHINISTS
AND
AEROSPACE * CASE N0. 1 ,
WORKERS, (DISTRICT 22) * DATE OF AWARD: FEB. 16, 1987
On February 5, 1987 I held a hearing in Boston, Massachusetts to
arbitrate the following dispute. Daniel J. Kozak, Assistant Vice President
Labor Relations represented the Carrier. William D. Snell, Assistant
President, represented the International Association of Machinists and
Aerospace Workers.
THE ISSUES
The issues the parties agreed upon to be decided are as follows:
Can an employee turn down an offered position
that requires a change of residence and still be
entitled to a dismissal or severance allowance?'
'2. Is the number of positions to be offered to
employees subject to arbitration?'
THE FACTS
On October 3, 1986 the Carrier served notices pursuant to Section
4 of
the New York Dock Labor Protections Conditions to transfer locomotive
heavy repair operations formerly performed at the Maine Central Railroad
Company shop at Waterville, Maine to the Boston and Maine Corporation
shop at Billerica, Massachusetts. A conference was held between the
parties on October 14, 1986. The parties were unable to agree upon an
Implementing agreement and on November 17, 1986 the matter was
referred to arbltratlon. Despite subsequent negotiations the two Issues
listed above remained unresolved.
PAGE 2
DISCUSSION
ISSUE NO, 11
The first issue for resolution is whether once declining an offered
position Involving a change of residence, an employee would be entitled the
benefits which would be tendered to one who was dismissed or severed
without such alternative job of ter.
The Union asserts that those who are offered other positions
elsewhere are not required to accept them since it would require a change
of residence; that they only have seniority at the location where currently
working; and that when they decline such alternative locations they, in
fact, lose their seniority and should be granted a dismissal allowance or a
separation allowance.
The Carrier contends that such employees are not dismissed employees
unless deprived of employment; and that those grievants offered positions
elsewhere are retained In employment and thus are not entitled to such
allowance.
The New York Dock Labor Protective Benefits provide that an employee
may have to change his residence as a result of a transaction. The ICC
recognized this In providing for moving expenses and for the loss of home
benefits. Employees with such transfer options have their employment
prospects protected
It under those circumstances they decline the of ter of positions at
new locations, they do so voluntarily and exclude themselves from the
protections prescribed by the New York Dock Conditions. In the
circumstancesof such offers of continued employment with available
work they can not be considered as dismissed employees or entitled to
either a dismissal allowance or a separation allowance.
ISSUE h10.
2
The second issue
Is
the union's right to challenge in arbitration the
number of positions offered by the Carrier to employees.
PAGE 3
The Union seeks to have the number of offered positions correspond
with the number of positions the Carrier earlier contemplated establishing.
The Carrier asserts that the earlier offer was made prior to a change
In the economic health of the Mane Paper Industry, prior to the
retrenchments that flowed therefrom, prior to the impact that such
changes had upon Carrier's operation, and prior to the Brotherhood
of
Maintenance of
Way
Employees strike of 1986 and its adverse economic
impact on the Carrier's operation and prof itablity. It argues that the
decision
of
Judge Carter in abolishing 725 positions on the three railroads
as a result of the financial crisis caused by the strike is a controlling
restriction on available positions. The Carrier concludes that setting the
number of available positions at a consolidated facility is solely within the
Carrier's prerogative and therefore is not arbitrable.
This issue has been considered in earlier arbitration decisions. In the
decision of Special Board of Adjustment 570 under the September 25, 1964
National Shop Crafts Agreement, Referee Jacob Seidenberg held, on
November 28, 1966, that:
'On the record before it, the Special Board had no rational
basis for determining that the Carrier's judgment is
erroneous or faulty and that its actions in this case were
arbitrary because I t exercised i n an unreasonable or
capricious manner its managerial judgment of determining
the number of machinists to be transferred'
Similarly in a New York Dock award involving the Brotherhood of
Railway Carmen and the Baltimore and Ohio Railroad Company and the
Louisville and Nashville Railroad Company, Referee William E. Fredenberger
found on
January 12, 1983 that:
'The authority of the neutral acting under Article 1
Section 4 extends to the selection of forces to fill
the two positions to be created at the South Louisville
Shops, but it does not extend to review of the Carrier's
decision to create such positions.'
In the light of the foregoing decisions and others comparable to them,
I find the Union's second claim to be without merit.
PAGE 4
AWARD
ISSUE i. An employee who turns down an offered position is not
entitled to a dismissal or severance allowance.
ISSUE 2. The number of positions to be offered to employees is not
subject to review in arbitration.
Arnold M. Zack
Arbitrator
Dated February 16, 1987
Boston, Massachusetts
Suffolk County