AWARD NO. CASE NO.

ARBITRATION COMMITTEE

UNDER THE

NEW YORK DOCK EMPLOYEE PROTECTIVE CONDITIONS

(IMPOSED BY THE INTERSTATE COMMERCE COMMISSION

IN FINANCE DOCKET NO. 29430)


RAILROAD YARDMASTERS OF AMERICA

 VS.

 SOUTHERN RAILWAY COMPANY

 OUESTION AT ISSUE:
FINDINGS AND AWARD

 "Is Mr. P. B. Ingram entitled to the benefits of Section 9 of Article I under the New York Dock II Conditions relative to his move from Lynchburg, Virginia to Raleigh, North Carolina, in June of 1983?"

 BACKGROUND:

As a condition of its approval of the coordination of operations on the Norfolk and Western Railway Company (the "NW") and Southern Railway Company (the "SR"), the Interstate Commerce Commission (the "ICC"), under Finance Docket No. 29430 (Sub - No. 1), decided March 19, 1982, imposed the labor protective provisions commonly known as the New York Dock II Conditions (New York Dock Ev. - Control _- Brooklyn Eastern Dist., 360 I.C.C. 60 (1979) (New York Dock), affirmed sub. nom. New York Dock Ry. v. United States, 609 F.2d 83 (2d Cir. 1979).


Representatives of NW and SR (the "Carrier") met on several occasions with representatives of the Railroad Yardmasters of America (the "Organization") in an attempt to negotiate an implementing agreement covering the coordination of operations at Lynchburg, Virginia, Winston-Salem, North Carolina, and Norfolk, Virginia. When their efforts failed to produce a mutually agreeable disposition of differences, the parties agreed to have the matter resolved through arbitration as provided in Article I, Section 4 of the Kew or k Doc I? Conditions.


In its presentation to the arbitration board, the Carrier, among other things, stated the following relative to creation of a new third shift Yardmaster position at Lynchburg, Virginia:




In giving recognition to such an intent, the arbitration board said the following in its award:



The coordination of facilities, operations and services was made effective on June 1, 1982.


On June 3, 1982, Carrier issued Bulletin No. G-53, advertising a Relief Yardmaster vacancy at Lynchburg, Virginia. The bulletin identified the position as a new position with assigned hours on both the second and third shifts.


The Claimant (Mr. P. B. Ingram) exercised his seniority right for the vacancy by bid dated June 4, 1982. At the time, as he had prior to the coordination of facilities between the NW and SR, Claimant was working as a Yard Foreman and Extra Yardmaster at Raleigh, North Carolina.


On June 8, 1982, by Bulletin No. G-56, the Claimant was awarded the advertised position at Lynchburg, Virginia as the senior bidder. He thereafter moved his place of residence some 120 miles from Raleigh, North Carolina to Lynchburg, Virginia at his own expense.


Three months later, effective after the end of tours of duty on September 9, 1982, the Carrier abolished both the regular third trick and the relief yardmaster positions at Lynchburg, Virginia. In this regard, the Carrier states the abolishments were related to the Carrier having determined that efficiency of operations called for the third shift yard engine to be moved to the first shift.


On November 27, 1982, Claimant submitted a Request for Entitlement to Benefits form to the Carrier, stating that he had been placed in a worse position or deprived of employment effective September 9, 1982 as a result of the merging of the Montview Yard and Kinney Yard at Lynchburg, Virginia. In this connection the Claimant stated:



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Although the question of whether or not Claimant was entitled to the protection claimed by submission of the above form is not before this Board, the Carrier submits that it denied the request of Claimant to be recognized as adversely affected.

 There followed an exchange of correspondence between the Claimant and the Carrier. However, as concerns the instant claim, it is especially worthy of note that by letter to the Carrier dated April 26, 1983, Claimant, among other things, stated:





Subsequently, on June 7, 1983, Claimant addressed the following letter to several Carrier officials and the organization:

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Shortly thereafter, on June 15, 1983, Claimant submitted to the Carrier an itemized statement of expenses which he said he had incurred in relocating to Raleigh, North Carolina. Claimant indicated the "Total Cost to Date" of June 14, 1983 was $1,508.90, "Plus Phone calls 4/27/83 until House Sold = . . ." In a letter accompanying the statement, the Claimant said:




On July 28, 1983 Carrier's Director of Labor Relations addressed the following response to Claimant:




The instant dispute was thereafter handled in conference between the Carrier and the Organization and progressed to this Board by agreement of the parties.

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 POSITION OF THE CARRIER:

It is the position of the Carrier that Claimant's request to be afforded benefit of moving expenses as provided under Section 9 of Article I of the New York Dock Conditions is without merit. It says that Claimant was not affected by any action taken by the Carrier "pursuant to" to the consolidation as approved by the ICC and that neither Claimant nor the RYA have shown any specific information that would link Claimant to the coordination which took place on June 1, 1982.


The carrier argues that Section 9 benefits are specifically limited to employees who are entitled to receive a "dismissal" allowance and that Claimant neither meets the criteria of such an employee or, in the alternative, the definition of a "displaced" employee as those terms are described in the New York Dock Conditions.


In this regard, the Carrier states that the touchstone for determining whether an employee qualifies for either a displacement or dismissal allowance, is whether such employee is adversely affected as to compensation due to the loss of employment, or from being involved in a chain of displacements that resulted form the transaction. However, the Carrier says, in the instant case Claimant neither lost a regular job, nor was he involved in a chain of displacements that resulted from the transaction nor was he required to change his point of employment as a result of the transaction.


Thus, the Carrier urges that the situation Claimant found himself in did not flow from a transaction, but rather from an exercise of seniority initiated solely by the Claimant himself to a posi-


the NW and

 services and

 tion that was created subsequent to the ICC granting

 SR the authority to coordinate facilities, operations.

The Carrier also directs specific attention to Claimant's letter dated April 26, 1983, supra, whereby, it submits, the Claimant admitted that his move to Lynchburg was of his own volition in an exercise of seniority, not because of the consolidation: and, he could have remained at Raleigh, North Carolina to work as a Yard Foreman and Extra Yardmaster. Further, the Carrier says that Claimant relocated his residence back to Raleigh again of his own choosing, and not by reason of any directive from the Carrier.


The Carrier says that the factors which caused Claimant's position of Relief Yardmaster at Lynchburg, Virginia to be abolished some three months after the consolidation is outside the umbrella of protection afforded by the ICC. It says: "[The] authors of this and other protective arrangements never intended for them to be used to afford absolute and complete financial protection to any railroad employee who might in some way be tangentially affected by a merger, consolidation, etc."


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 POSITION OF THE ORGANIZATION:

It is the Organization's position that since the positions at Lynchburg were clearly established as a result of the merger or coordination of facilities between the NW and SR that it must be presumed that Claimant had relocated from Raleigh, North Carolina to work one of the newly created positions as a result of a "transaction".


The organization, therefore, says: "[Since] Mr. Ingram clearly moved his residence as a result of a 'transaction' and since Carrier furloughed him, Mr. Ingram elected to move his place of residence back to his original point, Raleigh, N.C., of employment."


In this regard, the organization urges that the provisions of Section 9, Article I of the New York Dock Conditions "amicably provide the vehicle for restitution to Mr. Ingram when moving back to their original place of employment when furloughed from a position created by a 'transaction."'


Article I, Section 9, of the New York Dock Conditions reads:


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 FINDINGS AND OPINION OF THE BOARD:

There is no question that the position of third shift Yardmaster at Lynchburg, Virginia was established as the result of the coordination of facilities, services and operations between the NW and the SR as approved by the ICC in Finance Docket No. 29430 on March 19, 1982, and further provided for by award of an arbitration award in disposition of a dispute related to an implementing agreement with respect to the coordination.


It is also clearly evident that by reason of seniority accorded Claimant under applicable agreement rules, that he had the right to bid for and be awarded the position of Relief Yardmaster at Lynchburg, Virginia.


However, that the position in question was created pursuant to a coordination, or that Claimant had a right to exercise seniority to the position at Lynchburg, Virginia, may not be said to have necessarily established Claimant as having a right to be treated as a protected employee under the New York Dock Conditions.


At the time of the coordination, Claimant had dual seniority and was working at Raleigh, North Carolina as both a Yard Foreman and a Relief Yardmaster. The positions he occupied or worked were not shown to have been affected by the coordination in either a direct or indirect manner. Further, there is no probative showing of record that Claimant was deprived of an opportunity to have continued that same employment relationship as a consequence of the coordination. Rather, the record reveals that of his own volition, Claimant decided to change the past or then existing working relationship at Raleigh by exercising seniority to the Relief Yardmaster position at Lynchburg, Virginia, and, admittedly of his own choosing, to move his place of residence from Raleigh to Lynchburg.


Therefore, that Claimant found himself at Lynchburg when the Carrier abolished the Relief Yardmaster position at such location may not be held to have been a circumstance created as a result of the coordination or by reason of the Carrier having forced him to a position at Lynchburg.


Just as the Carrier was not obliged to have reimbursed Claimant for the movement of his residence from Raleigh to Lynchburg in the first instance, it was not obligated to reimburse Claimant for relocation expenses in moving back to Raleigh.


Since Claimant was not "required," in pursuance of Section 9 of Article I of the New York Dock Conditions, supra, to change the point of his employment as a result of the transaction, it must be concluded that he is not entitled to subsequent reimbursement for expenses of moving his household and other personal effects back to his original point of employment, as requested of the Carrier in Claimant's letter of June 15, 1983. As Section 9 states: "[Changes] in place of residence which are not a result of the transaction, shall not be considered to be within the pur-


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 view of this section."

 Under the circumstances of record, the Question at Issue must be answered in the negative.

 AWARD:
The Question at Issue is answered in the negative. Mr. P. B. Ingram is not entitled to the benefits of Section 9 of Article I under the New York Dock II Conditions relative to his move from Lynchburg, Virginia to Raleigh, North Carolina, in June of 1983.

J.L. Roy
 (//Organization tuber

 K. J. O'Brien
 Carrier Member

 Atlanta, GA
 May , 1987

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