On May 9, 1991, the Interstate Commerce commission (ICC) permitted the Illinois Central Railroad (Carrier) to sell 199 miles of its track running between Fulton, Kentucky and Haleyville, Alabama, to the Southern Railway (SOU). The purchase price was approximately $38 million. Simultaneous with the line sale, the ICC granted the Carrier permission to discontinue 81 miles of trackage rights over the SOU and the Burlington Northern Railroad Company between Haleyville and Birmingham, Alabama. The ICC concurrently approved the SOU's acquisition of bridge

To protect employees affected by SOU's purchase of the Fulton to Haleyville line, the ICC imposed the employee protective conditions set forth in New York Dock Railway-ControlBrooklyn Eastern District Terminal, 360 I.C.C. 60, 84-90 (1979): affirmed, New York Dock Railway v. United States, 609 F.2d 83 (2nd Cir. 1979) ("New York Dock Conditions") on the Carrier pursuant to the relevant enabling statute, 49 U.S.C. §§ 11343, 11347. To protect employees affected by the SOU's acquisition of trackage rights over the Carrier (to Centralia), the ICC imposed the employee protective conditions set forth in Norfolk and astern Railway - Trackaae Riahts - Burlington Northern, 354

I.C.C. 605 (1978); as modified by Mendocino Coast Railway. Inc. - Lease and Overate, 360 I.C.C. 653 (1980) on the carrier. To protect employees affected by the Carrier's abandonment of trackage rights between Haleyville and Birmingham, the ICC imposed employee protective conditions set forth in Oregon Short Tine Railroad Co. - Abandonment - Goshen, 360 I.C.C. 91 (1979) on the Carrier. Since these three separate employee protective conditions contain virtually identical provisions and because the sale was the predominant transaction, this Committee will refer only to the provisions of the New York Dock Conditions.

This Committee is duly constituted under Section 11 of the New York Dock Conditions in accord with a Letter Agreement dated May 29, 1991.1 All interested parties were given proper notice of the hearing held on August 2, 1991. Under Section 11 of the New York Dock Conditions and Article III of the Arbitrated Implementing Agreement formulated under Section 4 of the New York Dock Conditions, this Committee has jurisdiction over the dispute and the parties herein.

The Birmingham Line Sale became effective on June 28, 1988.

Just five days before the Carrier sold the Birmingham Line, claimant exercised his seniority to a Flagman's position on the freight pool service between Memphis, Tennessee, and Paducah,

1 Inasmuch as all sections pertinent to this dispute appear in Article I of the New York Dock Conditions, this Committee will only cite the particular section number.

Kentucky (MP/PM). Two days later, on moved to the NC assigned freight pool

between Memphis and Fulton, Kentucky. On June 28, 1988, the.day of the sale, Trainman D. E. Mays displaced Claimant, who exercised his seniority back to the Flagman's job in the MP/PM pool. D. E. Mays had been displaced at Jackson, Tennessee, a location on the Birmingham Line, and thus, Claimant was in the

In lieu of the NC Pool

E. Whitely, a 5.] On July

position in the MP/PM pool on July 11, 1988, and marked up on the Brakemen's Extra Board.

When his earnings later dropped below his guarantee, Claimant filed for New York Dock protective benefits.

The facts in this case are similar to the facts underlying this Committee's Award No. 1. When D. E. Mays displaced Claimant on June 28, 1988, Claimant could have retained a position in the CNS/NC6 pool. Since Claimant was able to obtain a position with compensation equal to or greater than the compensation of the position from which he was displaced, Claimant was not placed in a worse position with respect to either his compensation or the

rules governing his working conditions. Moreover, it appears that Claimant initially passed Over a Flagman's position on the MP/PM pool which paid more, on an hourly basis, than the NC pool. After a second displacement, Claimant returned to the MP/PM Pool but a short while later he went to the extra board. In conclusion, any loss of earnings was traceable to this voluntary seniority move. For the reasons more fully set forth in Award No. 1, we must deny this claim.

Bruce igeht . S. Gibbins

Employe ' Member Q Carrier Member

John B. LaRocco Neutral Member