A R B I T R A T I 0 N
PURSUANT TO NEW YORK DOCK PROTECTIVE CONDITIONS,
ARTICLE I, SECTION 11
In the Matter of Arbitration
between
NORFOLK AND WESTERN RAILWAY COMPANY
and SOUTHERN RAILWAY COMPANY
and
AMERICAN TRAIN DISPATCHERS UNION
and
TRANSPORTATION-COMMUNICATIONS UNION
HEARING HELD AT NORFOLK, VA., DECEMBER 18, 1987
A
For the ATDA:
H. E. Mullinax
Vice-President
W. Parker
General Chairman
For the TCU:
W. M. Flynn
Vice-President
R. H. Rankin
General Chairman
C. L. Gilbert
Vice General Chairman
P P E A R A N C E S
For the Carriers:
Jeffrey S. Berlin, Esq.
Mark E. Martin, Esq.
Richardson, Berlin & Morvillo
W. P. Stallsworth, Jr., Esq.
Counsel
M. C. Kirchner
Director, Human Resources
M. R. MacMahon
Director, Labor Relations
STATEMENT OF THE ISSUE
1. Does the Implementing Agreement proposed by
the Carriers meet the criteria set forth in Article
I, Section 4 of New York Dock conditions in effecting
the coordination of certain Southern Railway Company
train dispatching work performed in Greensboro, North
Carolina into the Norfolk and Western Railway Company
facility at Crewe, Virginia?
2. If the answer in Question No. 1 is "no", what
rearrangement of forces is appropriate in this coordination?
I N T R 0 D U C T I 0 N
The Interstate Commerce Commission, in 1982, approved the
coordination of the operations of the Norfolk and Western Railway
Company ("NW") and the Southern Railway Company ("Southern") under
the common control of Norfolk Southern Corporation. In doing so,
the ICC directed that any employees affected by this would be
covered under the so-called "New York Dock" protective conditions.
As one part of the coordination, NW and Southern (the
"Carriers") propose to coordinate certain train dispatching work
previously performed at Greensboro, North Carolina, a Southern
facility, with work at Crewe, Virginia, a NW facility. Dispatching work at Greensboro is performed by employees represented by
the American Train Dispatchers Association ("ATDA"), while dispatching work at Crewe is performed by employees represented by
the Transportation-Communictions Union ("TCU").
To this end, the Carriers advised the ATDA and the TCU,
by letter dated July 8, 1987, of their intention concerning the
"transaction". The Carriers stated in their letter that, while
New York protective conditions are "applicable", they saw no need
for an agreement with the Organizations, since they anticipated
that no employees would be "adversely affected".' The ATDA and
the TCU advised the Carriers as to their belief that an Implementing Agreement was required. To this end, the parties met
to negotiate such agreement. While the TCU did concur with the
terms of an agreement as proposed by the Carriers (with one change,
which was accepted by the Carriers), the ATDA proposed a substantially different agreement. As a result, the Carriers advanced
the matter to resolution under Article I, Section 4 of New York
Dock conditions and selected a neutral referee for this purpose.
Section 4 reads in pertinent part as follows:
f Notice and agreement or decision -- (a) Each
railroad contemplating a transaction which is subject to
these conditions and may cause the dismissal or displace
ment of any employees, or rearrangement of forces, shall
give at least ninety (90) days written notice of such
intended transaction by posting a notice on bulletin boards
convenient to the interested employees of the railroad
and by sending registered mail notice to the representatives
of such interested employees. Such notice shall contain
a full and adequate statement of the proposed changes to
be affected by such transaction, including an estimate of
the number of employees of each class affected by the
intended changes. Prior to consummation the parties shall
negotiate in the following manner.
Within five (S) days from the date of receipt of
notice, at the request of either the railroad or representatives of such interested employees, a place shall
be selected to hold negotiations for the purpose of
reaching agreement with respect to application of the
terms and conditions of this appendix, and these
negotiations shall commence immediately thereafter and
continue for at least thirty (30) days. Each transaction which may result in a dismissal or displacement of employees or rearrangement of forces, shall
provide for the selection of forces from all employees
involved on a basis accepted as appropriate for
application in the particular case and any assignment
of employees made necessary by the transaction shall
be made on the basis of an agreement or decision under
this section 4. If at the end of thirty (30) days there
is a failure to agree, either party to the dispute may
submit it for adjustment in (arbitration]. . .
At the arbitration hearing, the parties agreed that an
award should be devised by an arbitration committee, consisting
of the neutral referee and members selected by the parties (the
"Committee").
F I N D I N G S
The operational changes giving rise to the proposed change
in locale of certain train dispatching work is described by the
-Carriers in their submission as follows:
The first is the transfer of operational control,
from Southern to NW, of a line of railroad extending
from Burkeville, Virginia, to West Point, Virginia, as
part of a Reneral realignment of the Carriers' operations
in that region in 1987. The second is the Carriers'
abandonment in 1987, pursuant to ICC approval, of a
deteriorated railroad bridge that had carried a Southern
rail line over Albemarle Sound in North Carolina; as a
result of this abandonment, the portion of that line
extending from Norfolk, Virginia, to Waddill, North
Carolina (just north of the abandoned bridge) has been
cut off from other Southern properties and is operationally linked only to NW's facility in Norfolk.
As a result, the Carriers intend to provide dispatching
services from the NW facility at Crewe rather than the Southern
facility at Greensboro for the Burkeville-to-West-Point line and
for the Norfolk-to-Waddill line. The Carriers contend that the
Burkeville-to-West-Point line involves dispatching work of 45
minutes a day, and the Norfolk-to-Waddill line of up to 15 minutes
a day. The Carriers advised the ATDA and the TCU that they planned
no decrease in forces at Greensboro nor any increase at Crewe
to accomplish these changes.
As a result, the Carriers propose, with the concurrence
of the TCU. that an Implementing Agreement under Section 4 provide
only the following:
Due to the relatively small amount of work being
transferred, there is no need to provide for the selection
and/or rearrangement of forces, the transaction
will
go
forward as set forth in the notice dated July 13, 1987.
While it is anticipated that no employees
will
be adversely
affected by this transaction, the New York Dock protective
conditions will apply to any employee who may be affected
under the meaning to those conditions.
The ATDA, while not contesting the Carriers' right to realign
their dispatching functions, does not agree with the Carriers'
formulation of an agreement. The ATDA points out that some of
its work is in fact being transferred; that the amount of dispatching time involved may well vary from that suggested by the Carriers;
and that the move, admitted by the Carriers to be a "transaction".
guarantee any change in force level at Greensboro.
IMDlementing Agreement proposed by the ATDA has two
Drincipal elements. The first -- and most significant here -is as follows, in pertinent part:
One (ATDA] Train Dispatcher holding seniority in
the Greensboro office
will
be allowed to transfer to
the Crewe office . . . . The senior applicant shall
does not
The
have his seniority transferred and dovetailed into
the roster covering the Crewe office, and allowed
to displace any junior Train Dispatcher in that
office.
The remainder of the ATDA proposal concerns the benefits,
qualifying time, conditions for moving expenses, etc., frequently
included in such agreements where displacement of forces is involved.
The transfer of an employee from Greensboro to Crewe would
presumably require the addition of an employee at Greensboro as
a replacement, as well as the displacement of a present TCU employee
at Crewe.
The Committee finds no basis to support the ATDA's proposal
to transfer an employee from Greensboro to Crewe. Even if the
Carriers' estimate of the work involved were found to be somewhat understated, the dispatching work involved is minimal. The
Carriers' right is undisputed to determine where its dispatching
work shall be conducted.
The Arbitration Committee recognizes the viewpoint of the
ATDA that no guarantee of force levels at Greensboro is offered
by the Carrier.
that the dispatching
adversely affect the
is simply
currently
Clearly such employee,
occupied with work now
Nevertheless, the facts as presented.demonstrate
work involved in this transaction will not
present level of employment at Crewe. There
no basis to require the Carriers to transfer an employee
assigned and occupied at Greensboro to a new location.
if transferred, would be principally
being performed by Crewe dispatchers, with
only a small share of time devoted to the transferred dispatching work. In sum, since no "rearrangement of forces" (as
referred to in Section 4) is required or contemplated, an Implementing Agreement to initiate such rearrangement is inappropriate.
The further question arises, then. as to whether an Implementing Agreement detailing conditions for employees who may be
adversely affected is nevertheless required, even though no force
rearrangement can be foreseen. The Arbitration Committee finds
that such would also be inappropriate. The Carriers recognize,
in their proposed Implementing Agreement, that New York Dock conditions are appropriate, if and when applicable. Section 11 provides the safeguard of arbitral resolution of any future dispute
arising out of the Agreement. While a modest amount of work now
performed by ATDA employees will accrue to TCU dispatchers, owing
to the legitimate change in the Carriers` organization of its
work, the determinative consideration is that the number and
status of ATDA Dispatchers at Greensboro is undisturbed.
Under these circumstances, the Arbitration Committee finds
that the Implementing Agreement proposed by the Carriers,
as amended by the TCU in one sentence, does meet the criteria
of Article I, Section 4 of New York Dock protective conditions.
Further, there is little or no justification for the transfer
of an employee to Crewe and, as a consequence, no requirement
to specify the various conditions under which such hypothetical
transfer would occur.
A W A R D
The Implementing Agreement proposed by the Carriers (as
amended) meets the criteria set forth in Article I, Section 4
of New York Dock conditions in effecting the coordination of
certain South Railway Company train dispatching-work performed
in Greensboro, North Carolina into the Norfolk and Western Railway
Company facility at Crewe, Virginia.
ARBITRATION COMMITTEE
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HERBERT L. MARX, JR., Neutral Referee
M. C. KIRCHNER, Carrier Member
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M. R. MacMAHON, Carrier Member
W. M. FLYNN, TCU Employee Member
NEW YORK, NY
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H. E.
MULL C, A A
Employee Member