ARBITRATION BOARD
ARBITRATION BOARD ESTABLISHED PURSUANT TO
SECTION 11 OF NEW YORK DOCK CONDITIONS
(FINANCE DOCKET NO. 28250 APPENDIX III)
UNITED TRANSPORTATION UNION - C 3 T
VS.
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
THE BALTIMORE AND OHIO RAILROAD COMPANY
THE TOLEDO TERMINAL RAILROAD COMPANY
Parties to Dispute
QUESTION AT ISSUE:
"Has the consolidation of the Toldeo Terminal Railroad
with the C&O/Bb0 Yard operations at Toledo, Ohio effective July 1, 1984, caused an adverse effect for the
following named individuals:
E. L. Barker
P. F. Varwig
W. H. Gunlite
M. E. Berry
J. R. Barker
J. W. Cluckey
T. J. Grandowicz
S. M. Daum
G. J. Lada
S. N. Gunlite
G. B. Bennett"
BACKGROUND
On October 21, 1983 the Interstate Commerce Commission issued
decision in Finance Docket 30201 approving the C80 Railway
Company's application to acquire control of the Toledo Terminal
Railroad Company and imposed labor protective provisions described
in New York Dock.
Under date of December 23, 1983 the Carriers (C&O, B&O and TV
served notice pursuant to Section 4 of New York Dock of their
intent to consolidate (coordinate) yard operations in the
Toledo Terminal. Negotiations commenced and on May 23, 1984
an agreement was reached between the three carriers and the
UTU which contained provisions stipulating the assignments
which the Toledo Terminal employees would be given a choice of
in the consolidated Toledo Terminal. On the effective date of
the agreement (July 1, 1984) the Toledo Terminal employees were
to be given the 8th, 23rd and 38 picks from the job (assignment)
selection list. Each month thereafter for the next seven months
the choices were to change progressively upward. For example,
on August 1, 1984 the Toledo Terminal employees would be given
the 7th, 22nd, and 37 picks, and by February 1, 1985 Toledo
Terminal employees would be given the 1st, 16th and 31st picks.
Beginning on %larch 1, 1985 the same order of picks would be repeated for the next eight months, etc.
In a letter dated June 14, 1984 the Carriers notified the UTU
that they would consolidate (coordinate) their operations in the
Toledo Terminal effective 12:01 a.m. July 1, 1984. On June 30,
1984 there were three regular assigned yard jobs and a five-man
extra board working on the Toledo Terminal Railroad. On July 1,
1984 the three regular assigned yard jobs and the extra board
were abolished. Subsequently Toledo Terminal employees either
took a job on an assignment (8th, 23rd, 38th pick) or went on a
list from which they were called for vacancies.
Beginning in November 1984 Toledo Terminal employees began submitting claims on Form P-491 for a monthly displacement allowance
(guarantee) i.e., for the difference between their "test period
average monthly compensation" and their actual earnings. Claims
were submitted for October 1984 and subsequent months and were
declined by the carrier on the basis the loss of compensation
was as a result of a decline in business.
POSITION OF EMPLOYEES:
The employees contend that the record is clear that claimants
are "displaced employees", i.e., they were placed in a worse
position with respect to their compensation and rules governing their working conditions as the result of a transaction.
The "transaction" being the abolishment of all Toledo Terminal
assignments and consolidation of operations in the Toledo Terminal on July 1, 1984.
The employees state the primary issue before the Board to be resolved is: does the loss of earnings three months after displacement (after becoming a "displaced employee") negate an
employee's protection throughout the remainder of the protection
period. The employees cite Award 2, Case 2 of Arbitration Board
involving C&O and B80 covering claim of Claimant C. Short, (B80
Employees Exhibit "D") in support of their position. The employees also cite awards of various other Boards in support of
their position.
POSITION OF CARRIER:
The carrier's position is:
1. The Organization has failed to sustain its burden of
proving that any adverse affect upon the claimants
resulted from the Toledo Terminal Consolidation
effective July 1, 1984.
2. Factors other that the transaction affected the
instant claimants.
The carrier contends that while the organization has identified
the transaction as the Toledo Terminal consoldation effective
July 1, 1984 it has failed to show by clear and convincing evidence that any claimant was placed in "displaced" status as a
direct result of the transaction. The carrier argues that for
the Organization's claim to be of merit a casual relationship
between a transaction and the adverse impact must be present
and that the burden of establishing the presence of such casual
relationship rests with the Organization. The carrier cited
various awards in support of this argument.
The carrier contends that a general business decline in the
Toledo area beginning in October 1984 was the factor that caused
claimants not to make their guarantee beginning in October, 1984.
The carrier cited awards of various Boards which denied claims
because the employees had been affected by a decline in business
and not by a transaction. In support of their statement that a
general decline in business occurred carrier furnished records
showing number of cars dispached, number of yard crews assigned,
etc., for the period July 1984 through December 1985. The carrier
also furnished records showing the number of cars delivered to
industries located on the former Toledo Terminal Railroad for the
period January 1983 trough July 1986.
FINDINGS AND CONCLUSION:
After carefully analyzing the positions of the parties, as set
forth in this dispute, this Board has concluded that the consolidation of the Toledo Terminal Railroad with the CEO and 880 yard
operations at Toledo, Ohio on July 1, 1984 caused an adverse effect
for Toledo Terminal employees who were placed in a worse position
with respect to rules governing their working conditions when
their jobs were abolished on July 1, 1984. Instead of having
exclusive rights to the Toledo Terminal jobs as they had previously,
the employees after July 1, 1984 were required to pick from a
number of jobs in the consolidated facilities. Each month their
selection of jobs changed. See the second paragraph under
Background for details regarding the manner in which the selections
of jobs varied. Section 1 (d) of New York Dock reads, in part,
as follows:
"(d) "Protective period" means the period of time
during which a displaced or dismissed employee is to_
be provided protec ion ereunder and extends rom e
date on
which
an employee is isp ace or dismissed
to e expiration o years therefrom, provided,
however, a e pro ec ive period or any particular
employee shall not continue for a longer period follow
ing the date he was displaced or dismissed than the
period during which such employee was in the employ
of the railroad prior to the date of his displacement
or his dismissal." (Underscoring added)
The first paragraph of Section 5 (a) of New York Dock reads as
follows:
"5. Displacement allowances.-(a) So long after a displaced
employee's displacement as he is unable, in the normal exercise of his seniority rights under existing agreements,
rules and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, he
shall, during his protective period, be paid a monthly
displacement allowance equal to the difference between the
monthly compensation received by him in the position in
which he is retained and the average monthly compensation
received by him in the position from which he was displaced."
The third paragraph of Section 5 (a) of New York Dock reads, in
part, as follows:
"If a displaced employee's compensation in his retained
position in any month is less in any month in which he
performs work than the aforesaid average compensation
(adjusted to reflect subsequent general wage increases)
to which he would ,have been entitled, he shall be paid
the difference,"
There is nothing contained in New York Dock conditions which requires that any adverse affect from the transaction must be immediate or that a "displaced employee" must be adversely affected
each and every month during his protection period. The third
paragraph of Section S (a) makes reference to "any month" in
which a displaced employee's compensation is less, etc.
After carefully analyzing the fact sheets presented by both
parties relating to the carrier's "decline in business" argument the Board believes such argument is not worthy of merit in
this particular case for the following reasons:
While it is
true a decline in business began in the
consolidated terminal in October 1984, this decline
followed approximately six months of an abnormal amount
of business resulting from Toledo customers of the
railroads stockpiling coal in anticipation of a
possible United Mine Workers strike October 1.
Of considerable importance are the figures relating
to the number of cars delivered on the Toledo Terminal
Railroad during the period of January 1984 through March
1985. During the first quarter of 1984 the total number
of cars delivered was 2,846. During the last quarter of
1984 when a decline in business (compared to the previous
6 months) took place in the consolidated terminal the total
number of cars delivered on the Toledo Terminal Railroad
was 2,958; during the first quarter of 1985 the total number
of cars delivered was 2,867. Both the last quarter of 1984
and the first quarter of 1985 reflect totals greater than the
total for the first quarter of 1984.
3. The abnormal amount of business done during the 6-month
period April - September 1984 was not truly represent
ative of the normal amount of business that would have
been done by the railroads during this period of time.
We therefore, do not believe it appropriate or proper
for the carrier to use consolidated terminal statistics
following this period of time as a basis for their argu
ment that the claimants were adversely affected by a
decline in business. As indicated in Item ',above, the
number of cars delivered to the Toledo Terminal Railroad
for the last quarter of 1984 and the first quarter of 1985
were greater than the totals for the first quarter of 1984.
The Board is of the opinion that if the Toledo Terminal yard
assignments had not been abolished on July 1, 1984 the claimants
would not have suffered an adverse impact on their hours and wages
such as they did by having to work in the consolidated terminal.
The Board, therefore, concludes that the employees have shown a
direct casual nexus between the transaction (abolishment of yard
assignments on July 1, 1984) and the adverse affect they suffered
(placed in worse position with respect to their compensation and
rules governing their working conditions).
AWARD
The Question at Issue is answered in the affirmative. This decision is not intended to be a blanket approval of the individual
claims which serve as a background for this case. Each of the
claims should be reviewed and decided on its merits in accordance
with the provisions of New York Dock.
D. E. Proven Chairman
and Neutral Member
li
I#
rd Bryant
Organization Member
G. F. L~if
Carriers' Member