In 1980, the Interstate Commerce Commission (ICC) approved the merger of the St. Louis-San Francisco Railway (Frisco) into the Burlington Northern Railroad Company. (ICC Finance Docket No. 28583; 360 I.C.C. 784] To compensate and protect employees adversely affected by the merger, the ICC imposed the employee merger protective conditions set forth in New York Dock Railway - Control - Brooklyn Eastern District Terminal, 360 I.C.C. 60, 8490 (1979); affirmed, New York Dock Railway v. United States, 609 F.2d 83 (2nd Cir. 1979) ("New York Dock Conditions") on the merged Carrier pursuant to the zelevant enabling statute. 49 U.S.C. SS 11343, 11347. The merger was consummated on November 21, 1980.
At the Arbitrator's request, the parties waived the Section 11(c) limitation period for issuing this decision.l
On May 14, 1986, the Carrier notified the Organization that it intended to transfer all freight car heavy repair work at the Springfield, Missouri Consolidated Car Shop to Havelock, Nebraska on or about August 15, 1986. The Springfield facility was the only back shop on the former Frisco Railroad. Havelock is a point on the pre-merger Burlington Northern Railroad. To
lAll the sections relevant to this case are found in Article I of the New York Dock Conditions. Thus, the Committee will only cite the appropriate section number. 9R` and BN
accomel ish the transfer, the Carrier contemplated abolishing the remaining 23 carman and two carman painter positions at Springfield and to simultaneously establish the same number of carman and carman painter jobs at Havelock. Although the notice was silent, the Carrier informed the Organization at a June 30, 1986 conference that the notice was issued under the auspices of the September 25, 1964 Agreement as opposed to Section 4 of the New York Dock Conditions.
Because the Organization characterized the transfer of work from Springfield to Havelock as a New York Dock transaction, the Organization petitioned the United States District Court to enjoin the work transfer until the Carrier served a notice satisfying Section 4 of the New York Dock Conditions and either negotiated or arbitrated a New York Dock implementing agreement. Burlington Northern Joint Protective Board v. Burlington Northern Railroad Company, Civ. No. 86-3458-CV-S-4 (W.D. Mo. 1986). On September 4, 1986, the Court dismissed the Organization's action for want of subject matter jurisdiction. The Court observed that the basic factual issue before it was whether the work transfer constituted a New York Dock transaction. The Court ruled that final and binding arbitration pursuant to Section 11 of the New York Dock Conditions was the mandatory and exclusive forum for determining if the Carrier had engaged in any activity within the definition of a transaction as set forth in Section 1(a) of the New York Dock Conditions. Thus, the parties progressed the issue to this Committee.
From the Organization's perspective, manpower adjustments which occurred during the six-month period preceding the May 14, 1986 notice are relevant to demonstrating the Carrier's motive to systematically reduce forces at Springfield in anticipation of closing the shop. Specifically, the Carrier furloughed 67 Springfield carmen on December 30, 1985 and 12 additional carmen on May 2, 1986. The Organization charges that the Carrier furloughed these workers to limit its liability for the imminent shop closure.
If the 1980 merger had not occurred, Frisco rolling stock would have continued to be repaired at Springfield, the only major repair facility on the former Frisco territory. Absent the merger, the Carrier would be unable to transfer the heavy car repair work from a former Frisco point to a Burlington Northern repair facility. Obviously, the transfer arose as a direct result of the 1980 merger.
The New York Dock Conditions do not contain any time limitation. Thus, employees affected by a transaction are entitled to protective benefits even if the transaction is implemented long after the actual merger. This Committee lacks the authority to read an express or implied time limit into the New York Dock Conditions.
The Carrier, not surprisingly, labels the work transfer an operational change (instead of a transaction) simply because the benefits under the September 25, 1964 Agreement are inferior to
!CC Fin. Dcc. #23583 the protective entitlements f1;_wing from the New yo:K ~ocK Conditions. However, Section 3 of the New York Dock Conditions recognizes that employees might be covered by more than one protective arrangement. Pursuant to Section 3, the employees and not the Carrier have the right to select whether they want benefits under the September 25, 1964 Agreement or the New York Dock Conditions. Therefore, even if the transfer of work was an operational change as defined by the September 25, 1964 Agreement, coverage of the 196'. Agreement does not preclude application of the New York Dock Conditions.
Since the transfer of work constituted a New York Dock transaction, the Carrier's May 14, 1986 notice was invalid.
The transfer of work plainly and exclusively falls within the purview of the September 25, 1964 Agreement. The Organization has failed to show a proximate nexus between the 1980 merger and the 1986 transfer of work from Springfield to Havelock. Instead, the Organization misplaces its reliance on
the"but for" argument. necessarily connected
accomplished six years after the merger. It was simply a change in operation conducted within the normal course of business and completely unrelated to the merger.
The Carrier vigorously denies that it furloughed workers in anticipation of closing the Springfield shop. The May 2, 1986 furlough was directly attributed to the cancellation of a special program to retrofit a hundred air slide cars for an important
5?.` and 3`Z nwarl- %,,o. 1s~:ipper. In addition, both the December, ;985 layoffs and the transfer of work were caused by factors factors wholly unrelated to the merger. The other factcrs were a decrease in available work, a decline in business volume, reduced capital expenditures and a reduction in the size of the Carrier's car fleet. More specifically, the number of cars repaired in shop programs decreased from 6,235 in 1983 to 3,326 (an estimate) in 1986. The Carrier's car fleet decreased 5y 44,000 in the last five years. Since deregulation, there has been an increase in non-Railroadowned freight cars and those Carrier cars in service are newer. Newer cars require fewer repairs. Finally, the Springfield Region experienced a more severe business loss than the rest of the system. The amount of work dissipated to such a low level
Springfield shop. In summary, reduction in repair work with Springfield car forces.
Section 11(e) of the New York Dock Conditions sets forth the Organization's burden of going forward and the Carrier's burden of proof. As the moving party, the Organization must identify a Section 1(a) transaction and specify "...pertinent facts of that transaction relied upon." The Carrier's burden of
ether identify a transaction cr state pertinent facts linking, the transaction to an adverse effect suffered by the Springfield, carmen, the Carrier prevails regardless of whether or not it has satisfied its burden of proof.
The gravamen of this dispute is whether the transfer of freight car heavy repair work from Springfield to Havelock was a Section 1(a) transaction. Section 1(a) provides that a transaction is: "...any action taken pursuant to authorizations of this Commission on which these provisions have been imposed." While the effects of a railroad merger might be felt long after the merger is actually consummated, not every employment adversity occurring subsequent to \ a merger presumptively entitles workers to the comprehensive protective benefits contained in the New York Dock Conditions. Conversely, the mere passage of time does not conclusively mean that a transfer of work is wholly remote from a much earlier merger. Each post-merger employment change must be evaluated on a case by case basis. Nonetheless, since six years elapsed between the Frisco merger and the transfer of work herein, it becomes more difficult for the Organization to show a rational relation between the change in operations and the merger. BRC v. BN, NYD
11 Arb. Award No. 4 (Vernon, 1/3/86). A federal court recently ruled that the time interval between the merger and employment status change is of some significance when analyzing the underlying cause of railroad employee layoffs. Mees v. Burlington Northern Railroad Compaq, Civ. No. 86C0461 (N.D. Ill. 1986) .
Award No. ?ageIn this particular case, the organization has failed to present pertinent facts to overcome the lapse of time between the 1980 merger and the 1986 transfer of work from Springfield to Havelock. Instead of developing relevant facts showing acoherent connection between the transfer of work and the merger, the Organization relies exclusively on the "but for" argument,. Adopting the Organization's "but for" contentions would be tantamount to ruling that every Carrier activity initiated subsequent to the merger was per se related to the merger. ATDA v. MP, NYD § 11 Arb. (Zumas, 7/31/81). Such a finding would effectively nullify the Organization's burden of going forward. MP v. BRC, NYD § 11 Arb. (Sickles, 7/30/82). This Committee is unable to construe the work transfer as a transaction within the definition of Section 1(a) of the New York Dock Conditions solely on the basis of the vague "but for" contention. Public Law Board No. 3764, Award No. 2 (Vernon).
Inasmuch as the Organization has failed to satisfy its burden of going forward, this Committee need not address or, consider the rights of Springfield carmen under any other. protective arrangement including the September 25, 1964 Agreement. Most importantly, we need not address or pass judgment on the Organization's allegation that the Carrier furloughed workers in anticipation of closing the Springfield Shop. Finally, our decision is confined to the peculiar facts and evidence in this record.
8RC and BNJ. N. Locklin
Carrier Member
John B. LaRocco
Neutral Member
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