1. That the Burlington Northern Railroad Company, in defiance of the terms imposed upon same by an agency of the United states Government, the Interstate Commerce Commission, has arbitrarily and capriciously denied protective benefits to Claimants named herein, in accordance with the terms and provisions of the New York Dock Agreement, or as it is otherwise recognized, as Finance Docket No. 28250, Appendix III. The Burlington Northern Railroad Company has grossly and flagrantly violated the terms and provisions of the New York Dock Agreement and continues to do so, due to its transaction in anticipation of the merger between the St. Louis-San Francisco Railway Company and Burlington Northern Railroad Company, and by the Carrier's actions since the merger of the two Carriers on November 21, 1980.
2. That the following named Claimants be immediately provided with the protective benefits set forth under the New York Dock, Finance Docket #28250, Section 4, 6, 7 and 8, commencing on the appropriate dates so affected and continuing through the protective periods set forth.
D. G. Hopkins L. Jefferson D. A. Sprague
G. J. Steele E. S. Toth
3. That the Burlington Northern Railroad Company violated and breached the letter and intent of the provisions of I.C.C. Finance Docket No. 28250, (commonly known as New York Dock Conditions), particularly Sections 6 and 7 thereof, when the aforesaid Carrier made a reduction in forces affecting above Claimants. That the reduction in forces affecting above Claimants resulted from the merger related transaction to the change in operations, at the two common points, and the abolishment of all junior redundant personnel protected by the New York Dock Conditions. That the Burlington Northern Railroad Company violated and breached the letter and intent of the provisions of Section 4 of the New York Dock Conditions by failing to furnish appropriate notice of the aforesaid merger related transaction, to change operations at Kansas City and St. Louis. That the Burlington Northern Railroad Company be required to award Claimants the protective benefits set forth in Section 6 and 7 of the New York Dock and all fringe benefits provided for in Section 8 of New York Dock.
1. That the following named claimants be immediately provided with the protective benefits set forth under New York Dock, Finance Docket #28250, Section 4, 6, 7 and 8, beginning on the date so affected and continuing through the protective period set forth. BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA and BURLINGTON NORTHERN RAILROAD COMPANY
2. That the Burlington Northern Railroad Company violated and breached the letter and intent of the provisions of ICC Finance Docket No. 28250 (commonly known as New York Dock Conditions), particularly Sections 6 and 7 thereof, when the aforesaid Carrier made a reduction in forces affecting above claimants. That the reduction in forces affecting above claimants resulted from the merger related transaction to the change in operations, at the two common points, and the abolishment of all junior redundant personnel protected by the New York Dock Conditions.
3. That the Burlington Northern Railroad Company violated and breached the letter and intent of the provisions of Section 4 of the New York Dock Conditions by failing to furnish appropriate notice of the aforesaid merger related transaction, to change operations at Kansas City and St. Louis.
4. That the Burlington Northern Railroad Company be required to award claimant the protective benefits set forth in Section 6 and 7 of the New York Dock and all fringe benefits provided for in Section 8 of the New York Dock. BRC and BN
In 1980, the Interstate Commerce Commission (ICC) approved the merger of the St. Louis-San Francisco Railway (Frisco) into the Burlington Northern Railroad Company. [ICC Finance Docket No. 28583; 360 I.C.C. 784] To compensate and protect employees adversely affected by the merger, the ICC imposed the employee merger protective conditions set forth in New York Dock Railway - Control - Brooklyn Eastern District Terminal, 360 I.C.C. 60, 8490 (1979); affirmed, New York Dock Railway v. United States, 609 F.2d 83 (2nd Cir. 1979) ("New York Dock Conditions") on the merged Carrier pursuant to the relevant enabling statute. 49 U.S.C. §S 11343, 11347. The merger was consummated on November 21, 1980.
At the Arbitrator's request, the parties waived the Section 11 (c) limitation period for issuing this decision.l
II. BACKGROUND AND SUMMARY OF THE FACTSShortly after consummation of the merger, the organization and Carrier entered into a January 29, 1981 Implementing Agreement governing separate consolidations of car repair facilities at Kansas City and St. Louis. Car repair work at the Burlington Northern's North St. Louis facility was coordinated into the former Frisco's Lindenwood Yard at St. Louis.
lAll the sections relevant to this case are found in Article I of the New York Dock Conditions. Thus, the Committee will only cite the appropriate section number. BRC and BN
Simultaneously, the Frisco's Rosedale facility at Kansas City was consolidated into the Burlington Northern's North Kansas City repair shop and yard. Carmen adversely affected by these two transactions were afforded protection under the New York Dock Conditions.
Before the merger, Burlington Northern carmen held seniority on the Hannibal Seniority District which embraces North Kansas City and St. Louis as well as several other points in Missouri, Southern Illinois and Southern Iowa while Frisco carmen held point seniority. The St. Louis points were Lindenwood Yard and Valley Park Yard. The Frisco carmen at St. Louis (and Kansas City) had their seniority dovetailed into the Burlington Northern Hannibal Seniority District in accord with the pertinent portion of paragraph 2 of the Implementing Agreement which provides:
In 1983, the Carrier expanded its Lindenwood Intermodal Facility due to an increase in intermodal traffic. The expansion absorbed the space occupied by the Lindenwood repair track. As a result, the Carrier layed off all Lindenwood carmen on or about January 13, 1984. Although all Lindenwood positions in the carmen's craft had been abolished, the Carrier asserts that carmen assigned to a truck stationed at nearby Valley Park continued to perform repair work at Lindenwood. The incumbents of the Lindenwood positions exercised their seniority at various
locations throughout the Hannibal District. Ten of the Lindenwood carmen placed themselves on positions at North Kansas City. The ten Claimants herein are North Kansas City carrnen who, as a consequence of the chain of displacements triggered by the Lindenwood job abolishments, were unable to hold a position on the Hannibal Seniority District.
Originally, the Organization filed a claim on behalf of 30 carmen on May 11, 1984. Thereafter, both parties deviated from the normal on the property procedures for progressing claims under the New York Dock Conditions. The claim was substantially amended on August 7, 1985. Also, the Carrier failed to promptly respond to the claim. Despite the extraordinary handling of the claim on the property, the Committee concludes that the grievance concerning the ten Claimants herein is properly before us for a decision on the merits.
The abolition of Lindenwood carmen positions was one simple but significant step in the Carrier's premeditated plan to transfer all St. Louis car repair work to the North Kansas City facility. The Carrier is using a purported decline in business as a pretext for eliminating duplicate car repair operations at St. Louis and Kansas City. Absent the merger, the Carrier could not have possibly consolidated St. Louis car repair work into North Kansas City Car Shops. The January 29, 1981 Implementing Agreement did not contemplate the transfer of work from St. Louis to Kansas City. Since the merger, the Lindenwood/Valley Park car BRC and BN
ICC Fin. Doc. #28583 forces have been reduced from 59 to 9 with the last remaining positions at Valley Park. Thus, the Carrier engaged in a New York Dock transaction as opposed to an ordinary force reduction caused by an actual decline in business.
The Carrier has effectively abandoned Lindenwood Yard and Repair Track, although some Lindenwood repair work is now being performed by members of other crafts. Also, the Carrier is currently contracting out flat car repairs. Farming out the little remaining work also manifests the Carrier's intent to coordinate operations at Kansas City.
This case merely concerns the normal exercise of seniority rights on a single seniority district. Senior carmen, whose positions had been abolished at Lindenwood, displaced junior North Kansas City carmen on the Hannibal District. The abolition of carmen positions at St. Louis was not a transaction within the definition of Section 1(a) of the New York Dock Conditions.
The Carrier specifically denies that there was a consolidation of facilities at Kansas City. There was no movement of cars or car repair work from St. Louis to Kansas City.
The Carrier also refutes the Organization's allegation that it abandoned Lindenwood Yard. Carmen headquartered at Valley Park still perform car repairs at Lindenwood. The Carrier also retains a sizable work force in other crafts. The Organization has failed to meet its burden of proving that the abolition of
ICC Fin. Doc. #28583 the Lindenwood positions was associated with the merger. Instead, the Organization relies on the faulty "but for" premise.
Finally, the organization has progressed a claim on behalf of ten St. Louis carmen to Special Board of Adjustment No. 570. It is fatally inconsistent for the Organization to pursue a claim for some carmen under the September 25, 1984 Agreement while it simultaneously pursues this claim for New York Dock benefits. IV. DISCUSSION
ICC Fin. Doc. 128583 outcome of this case. Like the carman painter, Claimants herein did not hold sufficient seniority on the Hannibal District to place on a position after the Carrier abolished the Lindenwood Yard jobs. This Committee is obligated to follow precedents on this property to foster stability and predictability in the labor-management. relationship. Thus, this case presents a situation where senior workers exercised their seniority to displace junior workers independent of any New York Dock transaction.
In addition, the Organization failed to specify pertinent facts demonstrating that any car repair work was transferred from Lindenwood to North Kansas City or otherwise coordinated with the shop at North Kansas City. Aside from its bare assertions, the Organization did not identify what work flowed to Kansas City. Apparently, the Carrier did not create any new positions at Kansas City which would be necessary if there had been an influx of car repair work. From the record before us, this Committee finds that the Carrier did not engage in a coordination of work between St. Louis and Kansas City when it reduced Lindenwood car forces in January, 1984.
In summary, the Organization has not fulfilled its burden of identifying a transaction as required by Section 11 (e) of the New York Dock Conditions.
BRC and BNR(.J . WO] t icz
Employees' ember
John B. LaRocco
Neutral Member