SPECIAL BOARD OF ADJUSTMENT N0. 927
Parties Brotherhood of Locomotive Engineers
to and
Dispute Norfolk and Western Railway Company
Question
at Issue: Are.the following individuals displaced and/or
dismissed employees as set forth in the New York
Dock II protective conditions.
Award No. 2
Case No. 2
G. R. Olaker
L. E. Blackburn
Findings: This is the second of five cases placed before this arbitration
board. The first such case resulted i n our Award No. 1, which by reference
is incorporated herein.
The instant claims were filed pursuant to Article XI of the
New York Dock II employee protective conditions which were imposed by
the Interstate Commerce Commission (ICC), in connection with its decision
to approve the coordination of operations on the Norfolk and Western
Railway Company (NEW) and Southern Railway Company (SR) in Finance
Docket No. 29430 (SUB-N0. 1). This case is similar to Case No. 1 except
as to the circumstances under which the alleged adverse situation arose.
As noted in Award No. 1 the conditions for the protection of an employee
enunciated in New York Dock Railway - Control-Brooklyn Eastern District,
360~ICC, 50 (1979) (New York Dock Conditions) were imposed for the
protection of those employees adversely effected as a result of the
coordination of the authorized coordinations.
Each of the Claimants identified herein alleged that they are
entitled to protection under the New York Dock II Conditions for the
reason that as a result of the consolidation that Carrier is no longer
switching out Southern Railway cars, thereby causing the loss of two to
three three yard crews at Williamson yard.
Award No. 2
We will here discuss both the claims as one in the interest of
brevity.
Each Claimant completed and submitted a "Request to be Recognized
as a Protected Employee under NYD II" form on September 14, 1982. Upon
receipt of this form, the Carrier researched each man's allegations
and subsequently advised each of them individually that their request
to be recognized as a protected employee under the New York Dock II
Conditions was denied. Further, the Carrier advised that the reason the
request was denied was because the displacement identified in July of
1982 as having adversely effected him, was not a result of the
consolidation, but rather, a direct result of the decline and volume
of traffic handled in that facility.
Carrier, in support of this position, supplied the Organization with
a chart showing the number of cars handled at Williamson yard between
February of 1982 and July of 1982, the number of crews worked each
month and the amount of coal available for loading each month. Such data
reflected:
Month
February
March
April
May
June
July
'of 'Crews
151
191
147
158
141
115
No. of Cars Handled Coal Loaded Tons
51,456
66 ,109
48,369
51,748
46 ,857
37,844
136,422
168,461
136,691
123,573
137,168
94,271
Claimant Ohaker, on June 1, 1982, was working as fireman on the
6:30 AM short track fob in the Williamson yard, making three to four
hours overtime. Since the consolidation, it was argued, Williamson
yard crews are not switching Southern Railway hopper cars. As a result
thereof yard fobs had been cut off. Claimant's present assignment
does not make the overtime as previous.
Claimant Blackburn was on the yard fireman's extra list by his own
choice. The last day that he worked therefrom was November 6, 1982.
He worked the R-2 as a regular assigned fireman. Claimant Blackburn
has not worked since (as of June 17, 1983).
Award No. 2
The Employees contend, as in Case No. 1, that both Claimants were
effected by the "various programs of economics put into effect at the
Williamson, W. VA. Terminal." It was contended that the certification
of an employee's test period as a result of consolidation has no relation
to the decline in business factor because New York Dock II Conditions
do not provide relief to Carrier in the latter category.
The Board finds that if fireman Olaker were to be recognized as
a "displaced" employee and fireman Blackburn as a "dismissed" employee
the record must reflect that the Employees had established a direct
causal relationship between the transaction, to wit- the consolidation
of operations at certain points between the N&W/SR, and their status
complained of. The record does not so reflect.
While it may be true that the Carrier did decide to eliminate
the switching of Southern hopper cars at Williamson yard such fact
of itself was an operational change. No yard assignments were lost as
a result thereof. It is not unreasonable to conclude that if the change
was effective on or about June 1, 1982, then the Claimants' allegations
would have born truth long before July 1982 had they been directly
effected by the transaction. The Board on the record before it must
conclude that it was more apparent from the tables quoted herein before
that the marked reduction in the level of traffic handled including the
annual miners vacation and the decreasing number of crews depicted
between February and July 1982 is reflective of a declining level
of traffic.
,The Employees had the burden to show the relevance between their
allegation, to wit- that by their no longer switching Southern Railway
hopper cars at Williamson yard, the loss of their jobs had resulted
from the transaction. They, simply, did not.
The Board concludes, as did Murray Roman, Chairman and Neutral
Member of the Amtrak Board of Arbitration between Grand Trunk Western
Railroad Company and the United Transportation Unison that:
"*****the determining factor to be considered
is the end product of the'chain,of bumps on
Award No. 2
June 9, 1971. If this criterion is one basis,
then we must conclude that Webster was not
effected 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 l(a)."
The Board, here, must conclude that the adverse effect complained
of by the Employees did not flow directly from the transaction in
question. In the circumstances, the Board concludes that the Question
at Issue must be found in the negative, i.e., that the Claimants were
not displaced and/or dismissed employees as set forth in the New York
Dock II Protective Conditions.
Award: The following individuals are not displaced and/or
dismissed employees as set forth in the New York
Dock II Protective Conditions:
G. R. Ql aker
L. E. Blackburn
P /Z
. M. Moore, p oyee Member
"0*4
~1-
pge~
. if.-Mullen, Carrier Member
~ VZ/-- -- i 11
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Arthur T.- Yap Dart, Chairman
and Neutral Member
Issued January '3Q 1984.