SPECIAL BOARD OF ADJUSTMENT N0. 927
Parties Brotherhood of Locomotive Engineers
to and
Dispute Norfolk and Western Railway Company
Award No. 1
Case No. 1
Question
at Issue: Are the following individuals displaced and/or a dismissed
employee as set forth in the New York Docket II Protective
Conditions:
L. 0. Dawson
H. R. Barney
C. L. May
G. R. Heydt
L. L. Newberry
J. G. El ia
J. T. Gyer
H. K. Scott
T. A. Chapman
M. D. Scott
Findings: The instant claims were filed, on behalf of the above ten (10)
Claimants, pursuant to Article XI, II of the New York Docket Protective
Provisions. Said provisions had been imposed by the Interstate Commerce
Commission (ICC) in connect ion:-rwith its decision to approve the
coordination of operations on the Norfolk and Western Railway Company
(NEW) and Southern Railway Company (SR) in Finance Docket 29430 (SUB-N0. 1).
The Employee Protective Conditions for protection of employees
were those enunciated in the New York Dock Railway - Control-Brooklyn
Eastern District, 360 ICC, 60 (1979) (New York Dock Conditions).
Carrier, in anticipation of the Commission's approval of said
coordination, entered into Implementing Agreements covering consolidations at certain common points.
Upon receipt of the Commission's approval to consolidate the Norfolk
and Western and Southern Railway facilities, operations and services,
a decision was made to effect the coordination at the facilities upon
which implementing agreements had been entered into, effective June 1,
1982. Consequently, bulletins were issued far enough in advance in
order that everyone at said facilities could be in place and assigned on
Award No. 1
June 1, 1912. Any employee having insufficient seniority to acquire
regular assignment at the consolidated facility but who was in an active
status at the facility at the time of consolidation was automatically
made a part of the combined facilities extra board on June 1, 1982
pursuant to the said implementing agreements.
New York Dock II conditions contain the following pertinent
definitions:
"Transaction" means any action taken pursuant to
aut orization of this Commission on which these
provisions have been imposed."
"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."
"Dismissed Employee" means an employee of the
raiTroa , o, as a result of a transaction is
deprived of employment with the railroad
because of the abolishment of his position or
the loss thereof as a result of the exercise
of seniority rights by an employee whose
position is abolished as a result of a
transaction."
Each of the 10 Claimants, commencing some time after October of
1982. completed and submitted a "Request to be Recognized as a protected
employee under NYD II"form. The Carrier, after researching each Claimants'
allegation, subsequently advised each [of the men] individually that
their request to be recognized as protected employees under the New York
Dock was denied in view of the fact that they had been furloughed
as a result of the proper regulation of the number of firemen in accordance
with the formulas set forth in the National UTU Manning Agreement.
This is the first of five cases placed before this Board wherein
each Claimant seeks entitlement to employee protection under varying
circumstances, such as, reduction in business, lower level of earnings,
or loss of jobs. Claimants allege that the particular circumstances
arose as a result of the transaction for which protective provisions
had been imposed.
Award No. 1
The Board's review of the parties submission reflects the following:
All ten Claimants, on June 1, 1982, were not employed in or working at
any of the terminals consolidated on June 1, 1982; that they were
not in any of said terminals until furloughed subsequent to September
of 1982 under Article III of the 1972 UTU Manning Agreement; that they
were working on either the Pocahontas division, the Radford Division,
or the Scioto Division.
All Claimants were working as firemen and were furloughed as such
under the Fireman's Manning Agreement. Although two of the ten Claimants,
to wit- Messrs. Heydt and Chapman, had transferred from the Norfolk,
Franklin and Danville Ry. on September 8, 1982, the basic argument
offered on behalf of all ten Claimants was that Carrier, although it
had been a signatory party to the Manning Agreement of 1972, had never
imposed or subjected their employees to the conditions of said agreement,
until after the June 1, 1982 consolidation. Therefore, any employees
thus effected-by the Manning Agreement were therefore "Merger effected."
Further, say the Employees, New York-Dock II conditions, contemplates
certification as a result of the consolidation and it does not provide for
a decline~in business as a basis for non-certification. Therefore, the
request by the ten Claimants for a test period average should have been
granted and the question before this Board should be answered in the
affirmative.
The Board finds the Question at Issue before it to be in the
negative, i.e., that the ten individual Claimants identified in the
Question at Issue were neither displaced or dismissed employees as set
forth in the New York Dock II Protective Conditions.
The fundamental purpose of most, if not all, employee protective
agreements is, or was, to provide protection to employees against
adverse effects flowing from the transaction involved and not, as here,
from adverse effects arising from other unrelated causes. See the
Award of SBA 770 and Award No. 1 of SBA 868 among others.
Award No. 1
Status must be established as either a "displaced" or a "dismissed"
employee as the result of an effect flowing from the transaction. The
adverse result thereof on an employee is spelled out in the definitions
of the New York Dock II conditions. Consequently, one must establish a
direct causal relationship or nexus between the transaction and the
alleged adverse effect. The accepted detriment as to whether an employee
qualifies for an allowance under either such definition is, the lost
of a regular job, or the loss of earnings due to being involved in a
chain of displacements resulting from said transaction.
The record does not support any conclusion that such results were
involved in the instant claims. The parties appear to agree that the
basic factor causing these Claimants to either be furloughed and/or
forced to exercise their seniority from the road to the yard was the
July 19, 1972 Manning Agreement being-implemented by the Carrier for the
first time.
That Carrier prior to June 1 or September 11, 1982 had not
implemented the provisions of Article III of Section 5 of the UTU
July 19,, 1972 National Manning Agreement did not preclude it from placing
said provisions into effect. Such action did not require approval of
the Interstate Commerce Commission in order to place same into effect.
Therefore, the cases of these individuals and the change in the
employment status of these Claimants is outside the protective .pale
of the employee protective conditions imposed in Finance Docket No. 29430.
The Employees failed to establish the causal nexus between the change
in the employment status of all of the instant Claimants and the NorfolkSouthern consolidation.
The efforts to identify a tangential effect (i.e., the implementation
of the National Manning Agreement) does not qualify any of these Claimants
as having been adversely effected by the transaction in Finance Docket
No. 29430 (SUB-N0. 1). See-Amtrak 23-11. Therein it was held:
"That the prevailing and almost unanimous weight
of arbitral authority is that mere loss or
reduction of earnings per se does not render
or place an employee inn-t
a
status of a 'displaced
employee.' Neither the Congress of the United States,
Award No. 1
nor the Secretary of Labor or the contracting
parties to protective benefit agreements,
intended to afford absolute and complete financial
protection to any railroad employee who might be
in some way tangentially adversely effected by a
merger, coordination, or, as in the instant case,
by a statutorily authorized discontinuance of
railroad passenger service."
Amtrak Board of Arbitration, between Grand Trunk Western Railroad
Company and the UTU held:
"...The determining factor to be considered is
end product of the chain of bumps of June 9,
1971. If this criterion has one basis, then we
must conclude that Webster was not affected at
that time. Hence, when he was furloughed
subsequently, it was a result of a change in
volume or character of employment brought about
by other causes than a transaction as defined
by Appendix C-1, Article I , Section 1(a) ."
Consequently, the Question at Issue is found in the negative.
This Board, in effect, must deny the instant claims and request of the
instant Claimants to be recognized as protective employees and find that
they are therefore not entitled to the benefits of the New York Dock
II conditions.
Award: The Question at Issue is found in the negative.The Claimants in the question at Issue are not
displaced and/or dismissed employees.
C. M. Moors. p ogee e Member
u en, rrier Member
Arthur T. Van-Wart, Chairman
and Neutral Member
Issued January 30, 1984.