In the Matter of an Arbitration Between
CSX TRANSPORTATION, INC. (Former
Chesapeake b Ohio Railway and
Louisville
s
Nashville Railroad)
* New York Dock
* Labor Protective
Arbitration
OCC Finance Docket
Nos. 28905 (Sub
No. 1) and 29916
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION
- and
ARBITRATION CO TT££
RICHARD P. BRANSON, Assistant Directing General Chairman, SMWIA
ROBERT H. MELOTTI, Manager-Labor Relations
DANA EDWARD EISCHEN, ESQ., Neutral Chairman
This Arbitration Committee was convened by the Parties to an
Implementing Agreement between CSX Transportation, Inc. (CSXT),
C&O Railway Company (C&O) and Sheet Metal Workers International
Association (SMWIA or Union) making applicable to a transaction
involving locomotive repair facilities at the CSXT South
Louisville Shop, C&O Huntington Locomotive Shop, and CSXT Corbin
Shop the labor protective conditions set forth in New York Dock
Railway Control - Brooklyn Eastern District Terminal, 360 I.C.C.
60, 1979 (New York Dock Conditions or NYD). Under Section 10 of
that Implementing Agreement (attached hereto in its entirety as
Attachment A) any dispute or controversy with respect to the
interpretation or application of the Implementing Agreement is to
be arbitrated in accordance with the provisions of Article I,
Section 11 of NYD, unless otherwise agreed. In January 1990, the
Parties submitted the present controversy to this Arbitration
Committee and selected Dana Edward Eischen, Esq. to serve as
Neutral Chairman. The Parties exchanged written pre-hea-ring
submissions in advance of the hearing which was held at
Jacksonville, Florida on April 5, 1990. At the hearing the
Parties presented oral argument and documentary evidence and were
afforded a full opportunity to submit their positions on the
record. The record was closed with oral summation at the hearing
and the Parties jointly stipulated to a relaxation of the NYD
procedure time limits.
3
ISSUE
The original claim letter dated November
12, 1988
sought NYD
protective benefits for twenty-three (23) named Sheet Metal
workers furloughed November
9, 1988
at the Huntington Locomotive
Shop,
Huntington, West
Virginia. At the Arbitration committee
hearing on April 5,1990, the Parties stipulated that the three
(3) named Claimants who had transferred to Huntington from the
South Louisville Shops (Harold B. Ferrell, Keith E. Pierson,
Hilbert F. Mayes) each indisputably were entitled to and each had
in fact been paid by Carrier NYD protective benefits during their
furlough periods commencing November
9, 1988:
accordingly, their
claims were withdrawn from this arbitration. The Parties also
stipulated that during the period April-August 1989 each of the
Claimants had been recalled to service at Huntington Locomotive
Shop from their November
9, 1988
furlough. Thus, the issue for
determination in this proceeding is as follows:
Were Sheet Metal Workers Robert Cecil, James C. Skeans,
Albert E. Lewis, Noah Williamson, Reed A. Washington,
Danny K. McSweeney, Noel D. Shaffer, Thomas C. Jones,
Donald C. Mullins, Michael A. Pusateri, Michael Alan
Thompson, o
pha R. Bennett, Delbert J. DeHart, Eric L.
Sparks, Donald L.
Livingstone, Thomas
E. Lawless, James
r. Qualls, Keith A. Miller, Paul Norman Keller, and/or
Lowell T. Ransbottom entitled to NYD protective
benefits during their respective furlough periods at
Huntington Locomotive Shops from November 9, 1988
through to their respective April-August 1989 dates of
recall to service?
BACKGROUND
As a consequence of the Locomotive Shop closing and work
transfer transaction described in the Implementing Agreement of
May 21, 1987 (Attached A), some forty-five (45) Sheet Metal
Worker employees whose positions were abolished at South
Louisville Shops were offered the opportunity to follow the work
to Huntington Locomotive Shop. Of this number, twenty-one (21)
South Louisville Shop employees elected not to transfer and
twenty-four (24) Sheet Metal Worker employees for South
Louisville Shop did transfer to Huntington (including the abovementioned individuals Harold B. Farrell, Keith E. Pierson and
Hilbert F. Mayes). Most of the 24 former South Louisville
employees who transferred to Huntington had greater seniority in
the craft than most of the 60 or 70 SMW employees already working
at Huntington, and therefore ranked higher on the dovetailed
Huntington Shop Seniority roster. At the bottom of the
dovetailed roster was an undisclosed number of Huntington shop
Sheet Metal Worker employees who were hired or recalled to
service subsequent to the transfer of the South Louisville Shop
Rproximately four (4) months after completion of the
transfer from South Louisville to Huntington, thirty-five (35)
SMW erolovees at Huntington were notified they would be "affected
as a result of a force reduction", effective November 9, 1988.
employees furloughed at Huntington on November 9,
1988; twelve (12) ware individuals who had been recalled at
5
Huntington after the South Louisville transfers: three
(3)
were
individuals above-named who had transferred from South Louisville
Shop to Huntington under the Implementing Agreement: and twenty
(20) were individuals who had already been working at Huntington
at the time of the transfers. of these 35 individuals, the NYD
protective benefit entitlements of only the latter group of 20
employees (Claimants) is at issue in this arbitration.
SMWIA General Chairman A. R. Hicks initiated these claims by
letter November 12, 1988, reading in pertinent part as follows:
The Carrier notified me near the last of January,
1988 that there was a surplus of twenty-three (23)
to twenty-eight (28) Sheet Metal Workers because
of not sufficient work being transfered from South
Louisville, Kentucky to
Huntington Shops,
Huntington WV
. I stated, at that time that the
Agreement covered these employees who were working
at the Huntington Shops, Huntington,
WV
on January
26, 1987.
Following unsuccessful on-property discussions, Carrier's
Director, Labor Relations, A. R. Males denied the claims by
letter dated September 1, 1989, reading in pertinent part as
follows:
It is your contention that these furloughs
occurred as the result of the LouisvilleHuntington
Coordination, which
occurred between
August 4, 1987 and June 1, 1988: however, you have
made no connection between this coordination and
these furloughs. The Huntington furloughs of
November 1988 were not the result of the
coordination,, but were in conjunction with a
general force reduction system-wide. Merely
making allegations and filing a claim for
protection benefits does not meet
the
requirements
of the
Agreement.
6
Factually, at the beginning of August 1988
the Carrier conducted a study of the volume of
business at each location, and the volume
compelled the Carrier to make system-wide
reductions. Carrier's improved quality control in
the maintenance of locomotives and a decline in
business at Huntington and other points consistent
with the general economic condition of the company
at that time, dictated the need to reduce forces
in all crafts, including Sheet Metal Workers, and
such occurred only after total exhaustive efforts
failed to negotiate an alternate way of reducing
forces with your organization. on Wednesday,
November 9, 1988, at 7:00 am, thirty-five (35)
Huntington Shop Sheet Metal Workers were
furloughed. (Emphasis in original.)
Coordinated with the Sheet Metal Workers'
furlough was a notice furloughing ninety-five (95)
Machinists and twenty-six (26) Electricians.
Carmen, Upholsterers, Supervisors, Firemen and
oilers, and boilermakers were separated by
negotiated buyout agreements.
The force reduction.was no surprise to the
Organization. As you will recall, we advised the
organization in early August 1988, (not January
1988, as alleged) that a system-wide force
reduction was planned and, at that time, we
proposed a voluntary separation program ....
In the weeks that followed our initial
discussion and offer in AugNt 1988, no decision
was reached by the SMWIA to accept the Carrier's
proposal despite numerous meetings with your
organization .... Carrier was forced to implement
its
previously announced plan to furlough
68 sheet
metal workers at various points on the system. At
the sane time, inasmuch as no agreement had been
reached with the electricians' and machinists'
organizations, Carrier initiated furloughs of 147
machinists, and 84 electrical workers throughout
the system. Force reductions in the other shop
crafts were achieved through means of the
Voluntary Separation Agreements with the other
Union Representatives. (Emphasis in original.)
These furloughs occurred when it
became
obvious that fewer workers were needed at many
locations than were employed. These furloughs
were not related to any New York Dock covered
transaction. The claimants were furloughed simply
due to lack of work for them to perform. As
stated above, recognizing the need to reduce
forces, the Carrier made every effort to extend
alternatives to the affected employees, but the
organization rejected our generous proposals. The
Carrier asked for nothing, except the
organization's concurrence, which was not forthcoming. Now the Organization demands protection
for these employees, when it was unwilling to
provide alternatives before the reduction in
forces actually occurred. Now, it is to late, and
these employees, unaffected by any New York Dock
covered transaction, are ineligible for any
benefits or protection.
Furthermore, the burden of proof rests upon
the party who asserts a claim. No causal nexus is
shown to support the organization's contention
that the furloughs were a direct result of the
coordination: however, many awards require that
the organization show causal nexus between the
event and an adverse effect upon one or more
employees. Clearly, the organization has not made
such a case in this dispute.
It is clear that even with the transfer of
work from Louisville, insufficient work due to a
decline in business at Huntington resulted in the
furloughs. Subsequent to this reduction in
forces, no work has been transferred to any other
location, nor has the Carrier subcontracted any
sheet metal work. Sheet Metal Workers continue to
perform Rule 126 work: no significant change in
the work they perform has occurred. The fact
remains, these Claimants have not been affected in
any manner by the prior Louisville-Huntington
Coordination. The furlough of employees in this
,case, quite clearly is not on the carrier's
shoulders. No evidence has been presented in
support of this claim because none exists. the
claim consists solely of the organization's
attempt to absolve itself of responsibility in
this matter.
Furthermore, it is well recognized within the
industry that a general pattern of furlough/recall
employment reflects the fluctuation in business
demands. The same pattern prevails in this
instance. As an example, Claimant Robert Cecil
8
was furloughed
in 1979,
and again in
1980, and
when the volume of Carrier's business required his
services, the carrier recalled Mr. Cecil. This
case
is no
different, and
Mr.
Cecil
and
the other
Claimants have been recalled and are
working again
at the Huntington Shops.
Accordingly, your claim for protective
benefits is without merit and is declined.
The foregoing positions of the parties remained deadlocked
following additional conferencing and the dispute eventually was
appealed to this Arbitration committee for final and binding
determination under Section 10 of the Implementing Agreement.
OPINION OF THE CHAIR=
Disputed conversations between local Union officials and
Carrier officers or
newspaper stories quoted out of context are
not the proper determining factors for deciding an NYD protective
benefits dispute. At bottom line, the fundamental question in
this case is whether the record persuasively demonstrates a
reasonably direct causal connection between the "LouisvilleHuntington Coordination" under the
Implementing Agreement
of May
21, 1987 and the subsequent
force reduction
furlough of the
Claimants at Huntington Locomotive Shop on November 9, 1988. The
evidentiary
standards, burdens of proof,
and
governing principyco
for. flaking such a determination are well established in
'-~rat~A
law and in authoritative arbitration an4
recent controversial decisions
commerce commission (ICC) appears
to hold that the appropriate
9
causal standard in NYD
disputes
is "proximate" rather than "tut
for" causation. See Finance Docket No. 28490, Atlantic Richfield
Co. and Anaconda Co. - Control - Butte. A. & Pac. Railroad. etc.,
February 17, 1988 ("BAP": Finance Docket No. 30965, Delaware and
Hudson Railway Co. - Lease, etc. - Springfield Terminal, February
17, 1988 ("Springfield Terminal"); Finance Docket No. 28538 (Sub.
No. 24), Burlington Northern. Inc. - Control and Merger - St.
Louis & San Francisco Railway Co., June 8, 1988 ("Frisco") The
ICC apparently bases these decisions in large part upon its
interpretation
of the
statutory language and associated
congressional intent of 49 U.S.C. 11347 from which the New York
Dock definitions were extrapolated. Even though the U.S. Court
of Appeals for the Eighth Circuit reversed the ICC in frisgo for
its heavy-handed incursion into the arbitral role of interpreting
collective bargaining agreements, the Court implicitly upheld the
ICC's "reasonably direct causal connection" standard of causation
in such cases.
BLE
v. ICC, Civil Action No. 88-2120, 1989, U.S.
App. Lexis 13796 (C.A. 8th, September 13, 1989).
Quite independent of the line of ICC decisions, per se, the
better reasoned and more recent arbitral decisions in this arena
also have tended to require a real and discernible causal nexus
between the subsequent adverse effect (the November 9, 1988
furl--h
-f
Claimants at Huntington) and the earlier event out Of
WI..
~tocection was generated (the "Louisville-HuntinytOtl
Coordination"). See In the Matter of Arbitration
Between
MissQgri Paci_f_ic, Railroad
Company
and
AmericanL Train
10
Association, Finance docket No. 27773 (Arbitrator Nicholas Zumas,
July 31, 1981); In the Matter of Arbitration Between United
Transportation Union and Main Central Railroad Company, Finance
Docket No. 29720 (Arbitrator Robert M. O'Brien, August 10, 1984);
In the Matter of Arbitration Between United Transportation Union
and Norfolk & Western Railway Company, Finance Docket No. 9430
(Arbitrator Robert E. Peterson, August 29, 1986); In the Matter
of Arbitration Between United Transportation Union and Chicago
and Northwestern Transportation Company, Finance Docket No. AB-36
(Sub No. 2) (Arbitrator
Gil
Vernon); In the Matter of Arbitration
Between Brotherhood of Maintenance of Way Employees and Maine
Central Railroad Company, Finance Docket No. 29720 (Arbitrator I.
M. Lieberman, February 26, 1985). _
In sum, the teaching of all these authoritative precedents
is:
Before an employee is entitled to benefits ...
there must be a reasonably direct causal
connection between the transaction and the injury
sustained: in other words the transaction must be
the proximate cause of the injury .... If an
employee is dismissed or displaced for reasons not
connected with the transfer he is not entitled to
the benefits.
Application of the foregoing standards to the facts of
record yields the unavoidable conclusion that the Union failed to
meet its burden of persuasion in this case. Bare assertions of
V-auments and showing a four-month hiatus between ~'
'^ +--xnsfers and the November 9, 1988
the transfers were the
reasonably
11
direct proximate cause of these Claimants being furloughed.
Moreover, Carrier presented unrebutted evidence of other
supervening causes for the November 9, 1988, i.e.: system-wide
reductions in force due to a general Fall 1988 decline in
business, a specific drop-off in coal loadings
in
Kentucky and
West Virginia
in
1988, and recurrent cyclical fluctuations in
rail car and locomotive construction, maintenance and repairs.
In that connection, the undisputed record shows that prior to the
"Louisville-Huntington Coordination" each of the Claimants
experienced periodic furloughs and recalls at Huntington and each
Claimant was recalled to service at the Huntington Locomotive
Shop within six to eight months of the November 9, 1988
furlough.
Based upon all of the foregoing, this
Board must
conclude
that Claimants were not entitled to NYD protective benefits
during their respective furlough periods from Huntington
Locomotive Shop from November 9, 1988 through to their respective
April-August 1989 dates of recall to service.
AWARD OF THE ARBITRATION COMMITTEE
Sheet Metal Workers Robert Cecil, James C. Skeans, Albert E.
Lewis, Noah Williamson, Reed A. Washington, Danny K. McSweeney,
Noel D. Shaffer, Thomas C. Jones, Donald C. Mullins, Michael A.
Pusateri, Michael Alan Thompson, Opha R. Bennett, Delbert J.
DeHart, Eric L. Sparks, Donald L. Livingstone, Thomas E. Lawless,
James r. Qualls, Keith A. Miller, Paul Norman Keller, and/or
Lowell T. Ransbottom were not entitled to NYD protective benefits
during their respective furlough periods at Huntington Locomotive
Shops from November 9, 1988 through to their respective AprilAugust 1989 dates of recall to service.
C-77-
Dana Edward Eischen, 1 Referee
Dated at Ithaca, NY on
'-Y~2m'
I 5~0
8. eransca
Member, Concur/Dissent
at
Ro!^-rt H. Melotti
Company Member, Conc.
Dated at
on