BEFORE AN ARBITRATION-COMMITTEE ESTABLISHED
UNDER NEZ·1 YORK DOCK (II) EMPLOYEE PROTECTIVE CONDITIONS
In the Matter of Arbitration
Between
International Association of. Machinists
and Aerospace Workers
And
Southern Railway Company
OPINION AND
AWARD
I.C.C. Finance Docket
No. 29430
Case No. 2
BACKGROUND: On March 25, 1982, the Interstate Commerce Commission
(ICC) gave approval to the Norfolk Southern Corporation (NS C) to
acquire control through stock ownership of the Norfolk and Western
Railway Company (NW) and its subsidiary companies as well as Southern
Railway Company (SR)and its consolidated system companies. The ICC
also approved the coordination of operations of 17.1 and SR and imposed
New York Dock (NYD) Protective Conditions.
Pursuant to Article 1, Section 4 of the New York Dock Conditions,
the parties agreed to an Implementing Agreement on March 30, 1982.
This Agreement provided the terms applicable to future transactions
covered by such conditions
The first of the (2) claims presently at issue before the Board
was submitted on June 12, 1987 on behalf of Claimant Lee. The claim
asserted that:
(a) The Carrier served a belated notice on June 3, 1985 that it
had transferred all steam train and office car work from
Hayne Shop to Roanoke Shop. Therefore, violating the provisions o£ the March 30, 1982 Implementing Agreement.
(b) Claimant Lee's
position in
System production at Hayne Shop
was abolished by bulletin dated November 14, 1985 and he :vas
furloughed effective November 20, 1985.
System ?roduction contained three (3) job locationslocations. Tao
of the locations entailed work that consisted of reworkinca
and installing cab snicer drives and of::ice car clutches and
other related work on steam train and office cars.
!d) Subsequent to the transfer of the above-identified work in
March 1987, the Carrier transferred the work performed by
job locations 1, 4 and S, which performed cleaning, repairing.
and testing of D-22 and UC passenger and dinner car airbrake
valves, hose repair and car testers.
Claimant Lee, although in a furloughed status was able to
work on a day-to-day basis until March 25, 1987, subsequent
to the transfer of work identified in (.^_) above.
Cn September 9, 1987, the Carrier declined the CrQanization's
claim stating, in part, that:
Mr. Lee has not been adversely affected by the transfer of
steam and office car work, passenger air brake valves, hose repair
and car tester repair as you allege. The machinist furloughs in
March 1987 were the result of. a reduction in maintenance gang work
at Hayne Shop. There was no transfer of D22 and UC brake valves
from Iiayne. We have converted Passenger cars to AED/ABDW brake
equipment and no longer have a need for D22 and UC equipment.
Since passenger cars have been converted to freight equipment,
there is no need for passenger car testers to test D22 and UC
brake equipment.
On March 9, 1988, the Carrier, when
declining the
claim again,
referred to prior correspondance and a conference on rebruary. 25, 1988:
As stated in prior correspondence and in conference, Machinisi
Lee has not been adversely affected by the transfer of steam and
office car work, passenger air brake valves, hose repair and car
tester repair. Machinist Lee's furlough in March 1987 was the
result of a reduction in maintenance gang work at Hayne Shop.
When the steam and office car work was transferred to Roanoke
Shop in November 1984, Machinist Lee continued working under the
provisions of Rule 27 and therefore, was not a "displaced or
dismissed employee" as defined in the New York Dock Conditions ....
In addition, there was no transfer of D-22 and UC brake valve
work from Hayne Shop as you allege. Passenger cars have been
converted to ABD/AHDW brake
equipment, thus
eliminating the need
for D-22 and UC brake equipment. As a result, there is no longer
a need for passenger car testers to test D-22 and UC brake equipment.
3
Finally, regarding the loss of air hose and c71ad hand work;
this work was no lonaer performed at Hayne Shop due to the chance
in AAR requirements. The new requirements, effective January 1,
1987, required all air brake
hoses to he of the
;aide lin qladhand/
ferrule
type.
Hayne
Shop
did not have the necessary machinery to
remove and apply the new type of clamp. A change in AAR requirements is not a "transaction" as specified by the New York Dock
Conditions which state:
"'Transaction' means any action taken pursuant to
authorizations of this Commission on which these
provisions have
been imposed
."
In its letter of October 28, 1988 to the Carrier, the Oraanizaticn
in part stated:
Contrary to your position on the Hayne Shop transfer, the
facts are as I I-Lave previously advised Mr. Koehler in conference,
that the change to ABD/ABDtd valves was a slow process of (1.) car
at a time and that the work was transferred before this chancre
over was completed, further the Machinist at Hayne rebuilt P-val--es
for NS and other railroads, which are still used, but transferred.
As to the hose repair, the Machinist maintained and repaired the
equipment used in caking and repairing the hoses for the connection
from one car to another and the facts remain that the work was
discontinued at Hayne (a Southern Shop) and is now being performed
at Roanoke (a N & W Shop).
In reference to the Car testers, the Machinist at Hayne repaired and maintained the testers, which are used to test any
type of air brake equipment on freight cars and the fact remains
that this work has been transferred from Havne Shoo to the r1 & T·1,
just like all the other
foregoing work,
without a proper notice
as required by the 1982 Agreement.
Because the parties could not reach an agreement with respect to
Lee's claim, it was progressed to this body for adjudication.
With respect to Claimant Phillips, his position was abolished by
Bulletin dated March 18, 1987, effective the close of
business March
25,
1987, although he afterward continued to work on a day-to-day basis
pursuant to Rule 27 of the Parties' Agreement.
On June 24, 1987, the Organization filed a claim on behalf of
Claimant Phillips, asserting that he had been adversely effected on
March 25, 1987 because:
The Carrier has transferred the cleaning, repairing and
testing of D-22 and UC passenger and dinner car airbrake valves,
hose repair and car tester repair, which were performed on
positions 4, 5 and 1, respectfully. All of this work was transferred without notice as required by the 1982 Implementing Agreement.
On August 23, 1987, the Carrier denied the Organization's
claim,,,
mainly stating that:
Mr. Phillips has not been adversely affected by the transfer
of steam and office car work, passenger air brake valves, hose
repair and car tester repair as you allege. The machinist
furloughs in March 1987 were the result of a reduction in
maintenance gang work at Hayne Shop. There was no transfer of.
D22 and UC brake valves
from
Havne. We have converted passenger
cars to ABD/ABDw brake eauinment and no
longer have a need For
D22 and UC equipment. Since passenger cars have been converted
to freight equipment, there is no need for passenger car testers
to test D22 and UC brake equipment.
In accordance with a AAR requirement effective January 1,
1.987, all air brake hoses are to be of wide lip c-ladhand/ferrule
type. Hayne did.not have the machinery to apply or remove the
rerrule clamps.
The Carrier, on 1!arch 9, 19813, in confirming a conference held
_et·.:een the. parties to discuss the Phillips claim, .a pertinent part
Mated .
As stated in conference, since Machinist Phillips's position
was abolished on March 25, 1987, he has been working
on
a daily
basis under the provisions of Rule 27 and thus, has not been
placed in a worse position with regard to his compensation. The
New York Dock Conditions define a "displaced employee" as:
"'Displaced employee' means an employee of. the railroad
who, as a result of a transaction is placed in a worse
position with respect to his compensation and rules
governing his working conditions."
Machinist Phillips is not a displaced empiovee as defined
by the New York Dock Conditions.
In adds on, there was no transfer of D-22 and UC brake val-;c
work from Hayne Shop. Passenger cars have been converted to
ABD/ABDW brake equipment, thus eliminating the need for D-22 and
UC brake equipment. As a result, there is no longer a need for
passenger car testers to test D-22 and UC brake equipment.
Finally, regarding the loss of air hose and gladhand work;
this work was no longer performed at Hayne Shop due to the chance
in AAR requirements. The new requirements, effective January 1,
1987, required all air brake hoses to be of the wide lip gladhand/
ferrule type. Hayne Shop did not have the necessary machinery to
remove and apply the new type of clamp. A change in AAR requirements is not a "transaction" as defined by the New York Dock
Conditions which state:
"'Transaction' means any action taken pursuant to
authorizations of. this Commission on which these
provisions have been imposed".
S
When this claim was not resolved, it also was progressed to the
Board for resolution.
Differing versions of the Questions at Issue have been submitted
by the parties. These are:
Organization Question at Issue:
I. Did the Carrier violate the March 30, 1987 Agreement with
the transfer of steam and office car work, sometime prior
to June 3, 1985, and the transfer of D-22 and UC passenger
and dinner airbrakelvalves, P-valves, hose repair and car
tester work from Southern's Hayne Shop to N&W's Roanoke
Shop?
Are furloughed machinists Lee and Phillips entitled to the
rights and protective benefits provided in the March 30,
1932 Implementing Agreement, as a result of the transfers?
er Question at Issue:
Are Machinists Lee and Phillips entitled to the protective
benefits under New Yore Dock as a result of the transfer of
steam and office car work in November, 1984 and the alleged
transfer of ABD/aBDW brake valve, P-valve, hose repair and
car tester work from Southern's Fiayne Shop to NW's Roanoke Shop?
FINDINGS: Turning first to Claimant Lee, the Organization has the
threshold burden to provide facts that raise a sufficient or reasonable
presumption that the November 1984 transfer of steam train and office
car work from Southern's Hayne Shop to NW's Roanoke Shop adversely
affect Claimant Lee. The burden then shifted to the Carrier to prove
that factors other than a "transaction" affected the employee. We
find that the Organization has met its burden because it has identi
fied the
"transaction" as
well as specified the pertinent facts of
that "transaction" it has relied upon. In our judgment, the Carrier's
bare assertion, on the property, when it denied the claim, that Lee
was furloughed in March 1987 as a result of a reduction in maintenance
gang work at Hayne Shop does not effectively refute the organization's
claim. Moreover, it ignores the fact that Lee's position was abolished
in November 1985 and, as we read the record that is properly before us,
he did not exercise his seniority in the normal sense, but rather was
placed in a furlough status and worked, in effect, on a day-to-day
basis under the provisions of Rule 27, Furloughed Employees. A
furloughed employee is not a regular employee and this status, in
the situation before us, did place him in a worse position with
6
respect to ,-he "rules governing his working conditions". In summarv,
:with respect to Claimant Lee, we find a causal nexus bet:,reen the
November 1984 transfer of work (as previously identified) and the
abolishment of Claimant Lee's position one year later. Accordingly,
i:is claim is sustained.
With respect to Claimant Phillips, we have closely reviewed the
organization's well-stated arguments on his behalf and, while it
has met its initial burden, we find that Carrier's
position
persuasive, mainly for the reasons stated
in
the Carrier's letter of
:'.arch 9, 1988 to the General Chairman.
AWARD
Claimant Lee's claim is sustain.
Claimant uhillips claim is denied.
Eck4~ rd Muess
Cha i rma r~
i,. C. Edwards
Carrier Member
06v-
eLre~,
Joe P. Duncan
rganization Member