In the Matter of
Arbitration
Between
United Transportation
Union
And
Grand Trunk Western Railroad Company
FINDINGS AND AWARD
QUESTION AT ISSUES
which employees of the'Grand Trunk Western Railroad
Company are entitled to be certified as being adversely
affected as a result of the abolishment of Train d10/411.
effective October 8, 1985.
BACR~: On January 15, 1988, an Arbitration Board was convened
pursuant t0 Section II, ,few York Dock Conditions (NYD). :'he Board was
chaired by the undersigned. Because the parties could not agree on the
specific wording of the issue to be adjudicated
by
that Board, it was
framed by the Neutral Member as follows:
Did the diversion of rail traffic that came about
as a result of the abolishment of Train 410/411,
on October 8, 1985, constitute a "transaction" as
defined in Article I, Section 1(a) of the New York
Dock Conditions?
Subsequent, the Neutral found that the abolishment o! Train 410/411 an
October 8, 1985 did constitute a "transaction'. However, with respect
to the determination o! which employees, it any, were entitled to
be
certified as being adversely affected, the matter was remanded to the
parties for disposition, pursuant to Section 4 o! the New York Dock
Conditions.
Following a number o! meetings and an exchange of a series o!
letters between the parties, without reaching substantive aqreements
on the key issues in dispute, a meeting was convened by the Neutral
on
August 4, 1989. At that meeting, it was agreed that the parties would
provide submissions by October 23, 1989 and that the undersigned would
serve as the sole Arbitrator and issue an Award with respect to the
stated issue. It also was agrsed that the undersigned would base the
decision on the record established !or the January
ls,
1988 Arbitration
Board as well as the record assembled subsequent to the holding issued
by that Board and the pasties' Executive Board meeting held on August 4,
1989.
CONTlMOM AND FUDINGS1: In arriving at this Award, I have thoroughly
reviewsd and considered the total record before me, beginning with the
material assesibled !or the
hearing held
on January 15, 1988,
including
the various holdings and governmental documents relied upon by both
parties.
The triggering event for this claim occurred on October 8, 1985
when the Carrier issued Bulletin No. 237 which served to abolish
Train 410/411. The organization has consistently asserted '_na_
DTSL employees' were adversely effected under the New York --ock
conditions, meaning
a total of seventy-two (7Z) of the Carrier's em
ployees. Such a claim was properly rejected by the Carrier on the
basis of a reasonable construction of NYD Conditions as supported by
past holdings of arbitral authority in this industry. Specifically,
it has been held by numerous arbitral Awards that it is the employee's
initial obligation to "specify the pertinent facts relied upon" to show
that he or she has been adversely affected by a "transaction". :^his
threshold burden is generally met if information, such as the following
is furnished: (1) name and job held
(including location
when displaced
(I) the job (including location) obtained following displacement, i3)
t.'
pertinent effective dates under (1) and (Z), and (4) specific data or
facts that explain or establish the alleged cause of the claimed dis
placement. While each case may well be different, in essence, the
Claimant must furnish sufficient information to establish a reasonable
basis for the Carrier to act or respond. A claim for "all" employees
does not meet the necessary initial burden borne by the Organization.
However, the matters at issue are now properly before me for final
disposition.
Soma of the seventy-two cases or claims haw
controlling common
facts. This commonality lends itself to grouping them together and
disposing of them as a group. The first groupinq consists of those
claims on which the parties and the Neutral are in agreement that the
employees are entitled to protective benefits because they were either
displaced or fuslouqhed as a result of the abolishment of Train 410/411
This group consists o! sixteen (16) Claimants who area
Dasbasa, Joe
oil"&
Bader
Jaque
Lard
Leonard
Lock wood
Miller Ullom RD, Jr.
Palmer J., Jr. Ullom Rw, Jr.
Strawser Wester
Tovall Worley
The next significant group of Claimants consists of a group of
nine (9) people. The common identifier asoag them
is
that they were al
hired in 1983, about three years after Near York Dock conditions were
imposed by the interstate Commerce Commission (ICC) on August 27, 1981
and alter the merger o! the OTSL Railroad into the MV Railroad, and
t1lat they were all furloughed prior to the abolishment of
:rain
sl~is:a.
.%cot recently the ICC, in its decision of November 1, 1989
in -4reat
Northern pacific i Burlington Lines, Znc.-Merger Great Northern Rai'-way,
Finance Docket
No.
21478 (Sub No. 11) reaffirmed prior court and arbitra
decisions which have held on matters such as this that employees hired
after a merger are not entitled to NYD protection. The
ICC
in its decision and other bodies in their holdings have generally reasoned that
employees employed after the merging of work forces are hired by the
now, merged Carrier. Therefore, because this condition was known to
these employees and because an extension of protective benefits would
run counter to one of the major reasons for mergers, namely anticipated
economic advantages, these employees would not be entitled to receive
NYD protection. In view of the foregoing and on the basis stated above,
the following Claimants are not entitled to protective benefits and
their claims are denieds
eartaway
Emeigh
Foley
Fortner
Harold
Hughes
Jankowski
Moore
Trout
The next grouping of employees consists of the Engineers. The
Carrier contends that claims of this group of employees are not properly before me. It argues that the Engineers' claims were originally
progressed by the GTC-!'s General Chairman. Subsequent to his
handling
of these claims, the Brotherhood of Locomotive Engineers (BLE) has
assumed the authority to handle the Engineers' claim. Because
it
contends the sLS's General Chairman is not a party to these proceedings.
proper authority has not bees conveyed to ms to render a decision. The
Organisation mainly contends that the current ·LX General chairman, in
his lettes o! September =Z, 1989, has authorised the progression of the
Engines=' claim. i find the Organisation's arguments not without
some srsit. Sir, because the recognised Agent for the Engineers is
the 1M I conclude that a decision on the claims of the following
Lngiawss would not be proper in this forum and they are disposed of
on that basis
t
Doneoes, W. Larnhart Carroll Chilcutt
Young Susor ooneoes, J. Highfull
C- OIL Wilczynski Cannon, Sr. Berger
Harlow Shepard Gaynier Lamb
Sefors addressing the remaining thiry one (31) claims,
it
is
appropriate to briefly discuss the basic principles applicable to w o
claims. The underlying axiom is that only employees who are adversely
affected as a direct result of a "transaction" are certified. Therefore
a direct causal link must be established between the claimed adverse
effect and the "transaction" alleged to have given rise to it. The
mere fact that the adverse effect followed implementation of the "transaction" in time sequence or that the Claimant was working at a location
or on a seniority district where "transaction" related changes (such as
bumps) took place is not sufficient. In this respect, while each case
must be judged on its own merits, a multitude of other causes can have
an uncovered but nonetheless equally adverse impact on a Carrier's work
force. These uncovered causes include a decline in business: action
taken under schedule agreements covering the Claimant's craft or another
crafts return of other employees from leave of absences seasonal changes
in operation: emergency and/or disaster work stoppage: technological,
operational or organisational changest physical disqualification:
changes in manufacturing requirements and statutory or regulatory change
(such as the FRA regulations).
A considerable body of court and arbitral decision have evolved
(many cited by the Parties to this Arbitration) which today formulate
the framework and the tests that are applied to protective claims.
Among these are Amtrak . Comm. 23-11, UTQ v. ICC, Ref.
ZT.
Seidenberg
(November 11. 1979), which in pertinent part held that:
"we
find
that the prevailing and almost unamimous
weight of arbitral authority is that mere loss or reduction
in earnings
OR
se does not render or place an employee in
the states of-a' 'lisplaced employee'. An eaployee must
prove that his regular job was abolished as a result of the
disaouliauance of railroad passenger service, or that he was
disiplaeed
from his
regular job in a direct and immediate
chair of displacements resulting
from
the
discontinuance of
passenger service. A remote or tangential
effect of
the
discontinuance, albeit adverse, would not qualify a person
for a displacement allowance.'
Also, NM Arb. Cows.. MMAP v C&O,
Ref.
Robert M. 0'srien (march 4, 1985)
in pertinent part stated.
"This Arbitration Committee subscribes to the
reasoning pronounced
by
other Arbitration Committees ....
that loss of earnings, and/or abolishment o! positions,
by themselves, do not entitle employees to the labor
protection benefits set forth in New York Dock.
Rather, it must be shown that there ex steT a -causal
nexus between a 'transaction' and the adverse impact
experienced by employees claiming the protective benefits
established by the New York Dock conditions."
Applying
the foregoing tests and principles to the remaining cases,
I find that the following eight (8) Claimants remained on the same train
assignments that they held prior to the October 8, 1985 abolishment of
Train 410/411:
Doran Raid, G. Upham
Durfey Ritchey vesey
Runass Swinehard
Claimants Swinehart, Ritchey and Upham were involved in bumps to different jobs for a period o! six days (October 9, 1985, Bulletin 1296 to
October 15, 1985, Bulletin 1298). However, they,
in
essence, then
retained the same assignments that they held prior to October 8, 1985.
While it appears that these eight Claimants earned less following
the abolishment o! Train 410/411, there is insufficient evidence to show
that it was caused by that Train's abolishment. The claims of these
eight Claimants, therefore, are denied.
The next group of Claimants remained on one of the Extra Boards,
although, in some instances early
in
1986, some were assigned different
duties, such as Flagman or they were furloughed. The Claimants in this
group are:
Barbara, Jr,, Kirk Poitinqer
Bellamy Kirkendall Raid, C.
Dosaw Knaggs Rochowiak
0os Lewandowski Ruets
Geeselia Palmer, Sr. Taylor
Ora" Pierce
Clearly, with the exception o! Palmer, Sr., who throughout retained
his "number one' position on the yard Extra Board, all o! the remaining
sixteen (16) Claimants in this category lost their preabolishment position on their respective Extra Boards. In some instances, such as
Lewandowski, Ruets and lnaggs' claims, the employees were eventually
furloughed.
However, a lower ranking on the Extra Board does not =er se est.;blish an adverse effect. After close review of each claim, I conclude
that if the abolishment had an effect on the Claimants, it was tangential and that causes other than the abolishment were mainly responsible
for whatever changes occurred in their employment status.
The next group consists of Baxter and Sullivan who have in common
the fact that they were furloughed the next day after Train 410/411
was abolished. The Carrier attributes their furlough to its right to
exercise managerial discretion in reducing the Extra Board. However,
the issue is not whether the Carrier may reduce its Extra Board, but
whether its reduction and the subsequent furlough o! Baxter and Sullivan
came about because Train 410/411 was abolished. Baxter, Sullivan and
Worley were furlough by mans o! Bulletin 2296, October 9, 1985. 1
find no substantial distinction to separate these three Claimants. In
fact the parties actually agree that Worley has been affected by the
abolishment. Therefore, the Baxter and Sullivan claims are sustained.
The last two Claimants are Dusseau, who, of his own choice, took
an assignment on the Conductors' Extra Board and Weikinger, who is on
the disabled list. I find after applying NYD tests that both o! these
claims must be denied.
ANARD
As specified in the Findings. The Carrier is directed to Implement the claims which haw been sustained herein within sixty f60) days
from the date of this Award. It will be presumed by the undersigned
that this Award is received in the offices o! the Carrier within five
days Eros the date shown below unless substantial evidence is furnished
to the contrary.
Dated: