Is the Carrier required under the provisions of the New York Dock Conditions to furnish employees affected by a line sale their test period averages to the employee or his representative upon request for such test period averages?

The Interstate Commerce Commission (the "ICC" or "Commission") in approval of the purchase of a line of track by Wisconsin Central, Ltd. (the "W CL") from the Soo Line Railroad Company (the "Soo Line" or "Carrier") in Finance Docket No. 31922, service date of November 5, 1991, imposed the labor protective conditions in New York Dock Rv. - Control _- Brooklyn Eastern Dist., 360 I.C.C. (1979) as clarified in Wilmington Term. RR. Inc. _- Pur. &_ Lease _-- CSX Transp.. Inc., 6 I.C.C. 2d 799 (1990) and 7 I.C.C. 2d 60 (1990), of 'd sub nom. Railway Executives Assn v. Ice, 930 F. 2d 511 (6th Cir. 1991) (the "NY Dock Conditions"). The line of track which the WCL purchased from the Soo Line is commonly known as "The Ladysmith Line," situated between Ladysmith, Wisconsin and Superior, Wisconsin, a distance of 102 miles.

Pursuant to Article I, Section 4, of,-the NY Dock Conditions, the Soo Line. served notice on November 11, 1991 upon its employees represented by, among others, the Brotherhood of Maintenance of

S0o-BM4iE

"Pursuant to the employee protective conditions provided in :few York Dock . . . as imposed by the ICC in Finance Docket No. 31922, the Soo Line Railroad Company hereby serves notice of its intention to sell the Ladysmith to Superior Line, MP 355.487 north of Ladysmith, Wisconsin to the point of intersection with the south right-of-way line of Stinson Avenue at Superior, Wisconsin to the Wisconsin Central, Ltd. on November 25, 1991 or as soon thereafter as practicable.

We anticipate the changes to be affected will result in the abolishment of Section 157 South Superior and Section 155 Stone Lake; the Roadmaster Position at Superior and the Signal Maintainer Position at Superior.

Because Soo Line has no train operation on this line no adverse impact is anticipated on train and engine employees.

On or about November 15, 1991 the organization requested that there be a meeting for the purpose of reaching an implementing agreement in application of the terms and considerations for the protection of the employees it represents who would be affected by the sale of the line of track or the ICC approved transaction.

The Carrier responded to the organization by letter dated November 19, 1991. It confirmed that a draft agreement had been faxed to the BMWE on November 15, 1991. This letter further stated:

"Inasmuch as the I.C.C. has imposed New York Dock protective conditions as clarified by Wilmington Terminal, the level of protection has been set. There is no rearrangement of force as a result of this transaction and the employes whose positions have been identified to be abolished as a result, have system seniority on the entire former doo Line property. As I have indicated in the past in similar situations, for

these reasons, I do not agree that an implementing agreement is necessary as the necessary conditions have been provided for.

However, as has been done in previous situations,

without prejudice to the Carrier's position, I did agree

to provide a proposed agreement as you requested. We

have had some discussion regarding separation allowances

and I have indicated that separation allowances are

provided under the terns of New York Dock conditions. I

am aware that New York Dock protective conditions

require a ninety (90) day written notice containing a

full and adequate statement of the proposed changes to

be affected by the intended transaction and that the

I.C.C. acknowledged the Soo Line has no operation on

this line and therefore, waived the normal time period

for completing the transaction. I also understand that

New York Dock protective conditions provide a dispute

resolution mechanism.

My staff will be available to meet with you at 9:00 a.m., November 22, 1991 to make a good faith effort to reach an agreement in this regard, without prejudice to my previously stated position."

The organization responded to the Carrier letter on November 21, 1991. It took exception to certain of the Carrier statements and asserted that sale of the line of track could not be consummated or positions abolished until such time as the parties negotiated an implementing agreement or any dispute in connection therewith had been resolved in arbitration.

The carrier responded to the Organization's contentions, and in addition to refuting certain positions espoused by the organization, offered the following as directly pertains to the dispute here at issue:

"During this discussion, your desire to enhance protective conditions contained within the terms of New York Dock became very clear. You supported your demand for 'test period averages' before determining whether an individual meets the definition of a 'displaced' or 'dismissed' employee with the contention that that is the only way an individual knows if he has been placed in a 'worse' position. My staff pointed out that it is not the purpose of the 'average monthly compensation' or 'displacement allowance' to determine if an individual has been placed in a worse position as a result of the transaction. Certainly, an individual who has been placed in a 'worse' position as a result of the transaction has the ability to support ,h is claim with facts and once that has been accomplished, his 'average monthly compensation' will be calculated. Your insistence that

employees be provided such information prior to determining if they meet the definition of a 'displaced' or 'dismissed' employee is an obvious effort to gain 1precertification' for all employees involved, regardless of any 'adverse' impact as a result of the transaction.

fC]learly, there are no changes in working conditions involved and this is a force reduction which will occur under the existing collective bargaining agreement. Your position as outlined is without support of the ICC and/or board award. Inasmuch as you were so insistent that we provide employees whose positions will be abolished as a result of this transaction with 'test period averages' prior to determining if they had been placed in a worse position or met the definition of a 'displaced' or 'dismissed' employee, R. L. Mullaney indicated that arbitration would be necessary and made that request.

Further, in a discussion with R. L. Mullaney of my staff on December 2, 1991, you were reminded that employees are, in fact, provided a statement of gross earnings, to date, with each paycheck. If it is truly your desire to see that employees are provided salary information necessary to understand obligations and benefits to which they are entitled under New York Dock and not to seek 'certification' of benefits for anyone in the 'transaction', this statement should suffice."

"[I] have considered your most recent offer of an implementing agreement and I must inform you that I find it unacceptable. As you are aware, the issues of both the calculation and the content of Test Period Averages for those employes affected by this transaction must be resolved in the implementing arrangements which we are attempting to negotiate. So far these negotiations have been fruitless, but since the 30 days allotted for negotiations under Article I, Section 4 have'not expired, I would suggest that we meet again on December 19, 1991, in order to make another attempt to reach a negotiated solution before restoring to arbitration of this dispute. Attached hereto is our revised proposal for such agreement. Please note that Section 5 of our previous proposal, presented to your staff on November 22, 1991, was not intended to enhance the imposed conditions. We had inserted the moving allowance option based on the Carrier's proposal" sent to this office by fax on November 18, 1991."

S00-9Mw'c

The parties thereafter came to mutual agreement on the terms of an Implementing Agreement, except as concerns the matter that is the subject of the above Question at Issue. In this connection. the Carrier says that it is not obligated to have the Implementing Agreement contain a provision that requires it provide test period averages to employees assigned to the line of track and employees affected by the exercise of displacement rights prior to determining whether th=_% have been placed in a worse position or meet the definition of . "displaced" or "dismissed" employee.

On the other hand, the Organization maintains that the Carrier is obliged to be in agreement to provide information related to TPAs to affected employees and says that the Implementing Agreement should contain a provision that reads as follows:

"Each employee assigned to the line as described in Section 1 above and employees affected by the exercise of displacement rights by such empl;~yee will, upon request, be provided with a computation of test period earnings and hours as described in Article I, Section 5."

A "displaced" and "dismissed" employee is defined in Article I, Section 1(b) and 1(c) of the NY Dock Conditions as follows:

"(b) '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.

(c) 'Dismissed employee' means an employee of the railroad who, as a result of a transaction is deprived of employment with the railroad because of the abolition of his position or the loss thereof as the result of the exercise of seniority rights by an employee whose position is abolished as a result of a transaction."

"5. Displacement allowances. - (a) So long after a displaced employee's displacement as he is unable, in the normal exercise of his seniority rights under existing agreements, rules and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, he shall, during his protective period, be paid a monthly displacement allowance equal to the difference between the monthly compensation received by him in the position in which he is retained and the average monthly compensation received ,by him in the position from which he was displaced.

Each displaced employee's displacement allowance shall be determined by dividing separately by 12 the total compensation received by the employee and the total time for which he was paid during the last 12 months in which he performed services immediately preceding the date of his displacement as a result of the transaction (thereby producing average monthly compensation and average monthly time paid --.'or in the test period), and provided further, that such allowance shall also be adjusted to reflect subsequent general wage increases.

If a displaced employee's compensation in his retained position in any month is less in any month in which he performs work than the aforesaid average compensation (adjusted to reflect subsequent general wage increases) to which he would be entitled, he shall be paid the difference, less compensation for time lost on account of his voluntary absences to the extent that he is not available for service equivalent to his average monthly time during the test period, but if in his retained position he works in any month in excess of the aforesaid average monthly time paid for during the test period he shall be additionally compensated for such excess time at the rate of pay of the retained position.

(b) If a displaced employee fails to exercise his seniority rights to secure another position available to him which does not require a change in his place of residence, to which he is entitled under the working agreement and which carries a rate of pay and compensation exceeding those of the position which he elects to retain, he shall thereafter be treated for the purposes

'of this section as occupying the position he elects to decline.

(c) The displacement allowance shall cease prior to the expiration of the protective period in the event of the displaced employee's resignation, death, retirement, or dismissal for justifiable cause."

"4. Notice and agreement or decision. -- (a) Each railroad contemplating a transaction which is subject to these conditions and may cause the dismissal or displacement of any employees, or rearrangement of forces, shall give at least ninety (90) days written notice of such intended transaction by posting a notice on bulletin boards convenient to they, interested employes of the railroad and by sending registered mail notice to the representatives of such interested employees. Such

notice shall contain a full and adequate statement of the proposed changes to be affected by such transaction, including an estimate of the number of employees of each class affected by the intended changes. Prior to consummation the parties shall negotiate in the following manner:

Within five (5) days from the date of receipt of notice at the request of either [party] . . . hold negotiations for the purpose of reaching agreement with respect to application of the terns and conditions of this appendix

~ Each transaction which may result in a dismissal or displacement of employees or rearrangement of forces, shall provide for the selection of forces from all employees involved on a basis accepted as appropriate for application in the particular case and any assignment of employees made necessary by the transaction shall be made on the basis of an agreement or decision under this section 4. If at the end of thirty (30) days there is a failure to agree, either party to the dispute may submit it for adjustment in accordance with the following procedures:

(1) Within five (5) days from the request for arbitration the parties shall select a neutral referee and in the event they are unable to agree . . .

(b) No change in operations, services, facilities, or equipment shall occur until after an agreement is reached or the decision of a referee has been rendered."

"Each employee assigned to the line as described in Section 1 above and employees affected by the exercise of displacement rights by such employee will, upon request, be provided with a computation of test period earnings and hours as described in Article I, Section 5 [of the NY Dock Conditions]."

is to be properly a part of the Implementing Agreement because the Carrier is obliged to provide employees with their TPA once they have been affected so as to permit those employees, in turn, to determine if they have been placed in a worse position as a

result of a transaction and thereby entitled to benefit of a displacement allowance.

It asserts that affected employees need to be aware of their TPA since it is only with the benefit of such information that an affected employee can comply with the provisions of Section 5 of Article I of the NY Dock Conditions, supra, in regard to the exercise of seniority to a position producing compensation equal to or exceeding the compensation received in the position from which the employee is displaced.

In this particular case the Organization submits that there are four employees represented by the Organization who will be initially affected by the transaction, i.e., two Section Foremen and two Section Laborers, or, namely, the positions identified by the carrier in its November 11, 1991 notice, supra, and that others will no doubt be affected by a chain of displacements.

Accordingly, the Organization requests that the Question at Issue be answered in the affirmative and that the Board direct that the Implementing Agreement include the aforementioned clause related to the Carrier being required to provide affected employees, upon request, with their TPA.

The Carrier maintains that it is not the purpose of a TPA to determine if an individual employee will be placed in a worse position as a result of a transaction. It says the purpose of an Article I, Section 5(a), "Displacement Allowance," is to provide an equitable method for determining compensation to be allowed a "displaced employee" who has in fact been placed in a worse position with respect to their compensation and rules governing working conditions as a result of a transaction.

It says that there is nothing contained within the definition of a "displaced employee" in the NY Dock Conditions which supports an employee's entitlement to their TPA prior to the time that they are placed in a worse position as a result of a transaction. The Carrier therefore takes the position that it is obliged to provide a TPA only to a "displaced" employee who is entitled to a "displacement allowance."

In the case at hand, the Carrier offers, it remains to be determined who in fact, if anyone, will be a "displaced employee" and thereby entitled to a "displacement a`llowance."

Moreover, the carrier says that if a dispute arises concern'_ng the definition of a "displaced" employee or whether an individual is entitled to a "displacement allowance" that such dispute must be resolved under the terms of Article I, Section 11, of the NY Dock Conditions.

The Carrier says that in seeking to have the disputed provision included in the Implemenming Agreement that the organization is attempting to enhance protective conditions contained within the NY Dock Conditions. It says that the Organization is in reality seeking to gain a right of "pre-certification" for all employees involved, regardless of any "adverse" impact as a result of the transaction and to relieve the employee of the obligation to establish the causal nexus between the transaction and any adverse affect. Such a happens=ance, the Carrier argues, would permit the Organization to shift to the Carrier the burden of proving any lesser earnings received by an employee was the result of something other than the transaction.

while the Carrier does not dispute the fact that four positions represented by the organization will be abolished with the sale of the rail line, it says that no rearrangement of force will occur under the terms of the collective bargaining agreement and that no selection of forces is therefore necessary. Thus, the Carrier says there will be no change in working conditions and the employees affected by the transaction will only be subject to what it says would be a normal force reduction and an exercise of system seniority rights. In this regard, the Carrier says that it is difficult to predict the overall impact on any employee in the exercise of such system seniority.

The Carrier says that the Organization would like the Board to believe that anyone affected or displaced in conjunction with this force reduction is entitled to a "displacement allowance" as provided in Article I, Section 5(a), in any month in which their earnings may be less than their "average monthly compensation" prior to being displaced, regardless of the reason for such a difference or without establishing the necessary causal nexus between the transaction and the adverse affect.

For the above reasons the Carrier says that the Implementing Agreement which does not contain the language in dispute should be adopted as sufficiently meeting the requirements of Article I, Section 4, of the NY Dock Conditions.

There is no question that the Bernstein Awards referenced by the organization cast light upon certain artful language contained in the Washington Job Protection Agreement of 1936 (WJPA). However, as the Carrier points up, there are a number of significant differences between the purposes for which the WJPA was entered into by the various carriers and the unions as compared with the NY Dock Conditions. As Referee Murray M. Rohman said in an award which issued on August 6, 1974 (PC v. IBEW & RED) as concerns the differences between the WJPA and Amtrak Appendix C-1 Provisions, or protective provisions patterned somewhat after the NY Dock Conditions: "(The) philosophy and economic conditions prevalent in the '30's were different than those prevailing in the '70's when Appendix C-1 was promulgated."

Moreover, the Bernstein Awards which are cited involve determinations that are, for the most part, bottomed on interpretation of agreements which had been entered '_:to by the parties in the particular dispute. Thus, the awards lend themselves to a rather limited interpretation of even the WJPA.

In Case No. 138, for instance, Referee Bernstein makes extensive reference to an Implementing Agreement. It is this Agreement, not the WJPA, which is quoted as prescribing that a TPA be furnished upon the written request of an employee. The Agreement states:

"If as a result of the merger an employee is d_splaced or deprived of employment, upon written request of the employee or his representative to the Superintendent, the ,carrier shall promptly furnish to such employee, with copy to his General Chairman, a statement showing total compensation received by such employee and his total time paid for during the last twelve months in which he performed service immediately preceding the date on which he is displaced or deprived of employment."

It is also significant that notwithstanding the foregoing terms of Agreement, a separate Letter of Agreement essentially states that the carrier is to provide a TPA to involved employees when "it becomes known what employees are affected" and, further, that when an employee is "adversely affected" and claims compensation loss that the employee will file a claim with the carrier.

In the circumstances, that Referee Bernstein concluded that the carrier had "improperly neglected" to provide a TPA upon request must be viewed in the context of the Implementing Agreement, and not the WJPA, having required such information be given upon the request of the employee or the union.

That a "position" occupied by an employee is abolished at the time of a transaction, as in the case here at issue, does not mean that that particular employee has been adversely affected

and thereby entitled to a displacement allowance. The test is what happens to the employee in the exercise of seniority and displacement rights after the abolishment of the position. And, even in this regard it must be considered that the Carrier has no control over the voluntary exercise of seniority.

Employees may place themselves into situations which, on the surface, suggest they are in a worse position as a result of a transaction. However, it may be that such circumstance is the result of, for example, a desire on the part of the affected employee to work at a given location, on a certain shift, or be off from work on particular rest days. This, as opposed to the employee having exercised seniority and working on another position which would equal or better the compensation and working conditions of a former position which was abolished or subject to displacement.

In this same respect, it is noteworthy that Referee Bernstein offered that it was not abolishment of a regular position that establishes entitlement to a displacement allowance. He said, in Case No. 138, that to be "adversely affected" would seem to require some actual detriment, and that "protection" does not come into play until compensation is worsened, requiring a comparison of compensation before and after the employee is "first adversely affected."

Therefore, that an employee may be forced to exercise seniority as the result of the abolishment of a position on the line of rail that is abandoned must be viewed in the light of whether, after having done so, the employee is placed in a worse position, or, principally, a position unlike that which the employee would have stood for absent the transaction. It must be recognized, as held 'in numerous past awards, that a remote or tangential effect of a transaction does not qualify an employee for a displacement allowance.

As stated by Referee Nicholas H. Zumas in a dispute between the CSX and the BMWE involving the NY Dock Conditions (Award dated March 26, 1990):

"It is well settled that the burden of proof in cases seeking NYD protection benefits rests with the organization to show that Claimants were adversely affected by the transaction. The Organization must prove that actual harm was suffered by Claimants as a result of the I.C.C. approved transaction.

(F]luctuation of levels of compensation and movement of territory are normal characteristics of maintenance of way employment. The fact that some Claimants had their work levels altered or their headquarters points moved does not prove adverse effect nor does it show the causal nexus between the transaction and the adverse ef-

fect that is required before imposing NYD protection benefits."

Further, as stated by Referee Marty E. Zusman in an award which issued under date of December 7, 1990 in a dispute involving the BRS_ and CSX and application of the Oregon Short Line Conditions, or protective provisions not unlike those found in the NY Dock Conditions:

"Finding no evidence of language or practice requiring Carrier to calculate a TPA where no evidence exists that the employee has suffered a loss and is within the meaning of the Oregon Short Line Protective Provisions as a 'displaced employee,' we must answer the question [that the carrier be required to provide a TPA for each of the named claimants] in the negative."

This Board likewise fails to find by language or practice that the NY Dock Conditions require a carrier to provide a TPA to an employee merely because he would be affected by a job abolishment or sustain a loss of compensation. In our view, the NY Dock Conditions clearly intend that employees not be given a TPA or be certified as entitled to the protective benefits of the NY Dock Conditions until they have been adversely affected as a result of the transaction as concerns their compensation and rules governing their working conditions.

In this latter regard, the Board finds it significant that Section 5, Displacement Allowances, of the NY Dock Conditions, supra, prescribes that an employee is entitled to a displacement allowance so long "after" the employee's displacement as that employee is unable, in the normal exercise of seniority rights to obtain a position producing compensation equal to or exceeding the compensation in the position from which the employee was displaced. No mention is made in this or any other section of the NY Dock Conditions of an employee being entitled to a displacement allowance following the date an employee is affected by a job abolishment. Further, this same section of the NY Dock Conditions states that a TPA is to be calculated on the basis of the last 12 months in which the employee performed services "immediately preceding the date of his displacement as a result of the transaction." Again, there is no mention of the date that the employee is initially affected by a job abolishment.

Certainly, to give employees a TPA simply on the basis of the position they occupied being abolished, much less because they were in the employ of the Carrier at the time of a transaction, would be tantamount to placing the burden of proof upon the Carrier to show that there was no causal nexus between any loss of future compensation and the transaction, instead of, as the NY Dock Conditions contemplate, the employees being required to show the manner in which they had been adversely affected in the first instance so as to be entitled to a protective allowance.

The Board also believes that consideration must be given to the fact that there is a significant difference as to the manner in which a protective period is described in the WJPA as opposed to the NY Dock Conditions. In the WJPA a protective period is said to be "a period not exceeding five years following the effective date of the coordination." The protective period in the NY Dock Conditions is said to mean that period of time that "extends from the date on which an employee is displaced or dismissed to the expiration of 6 years therefrom."

In other words, the WJPA gave reason for an employee to be immediately placed under a protective umbrella since the protective clock commenced running at the time of the coordination. This is not a circumstance of concern with respect to application of the the NY Dock Conditions. The window of protection for an employee under the NY Dock Conditions does not commence on the date of a transaction, but rather runs from the date on which an individual employee is first adversely affected. Thus it would seem to the Board that a purposeful change was made in the adoption of the NY Dock Conditions language so as to preclude a premature determination of affect that might well cause employees to be subjected to a less meaningful period of protection than would obtain if the protective period was not to commence until the employees had in fact been adversely affected.

There is no question that the absence of a proper knowledge of a TPA places a difficult burden upon an employee to know where to exercise seniority in carrying out the mandate that an employee exercise seniority to the same or a higher rate of pay so as to be entitled to the protective coverage of the NY Dock Conditions. However, this concern may not be viewed as requiring that the TPA be computed before there is sufficient reason to recognize that employee as having been adversely affected in the first instance as a result of a transaction.

Moreover, even as concerns levels of compensation and the rate of pay of various positions, it is evident that paycheck stubs provided to employees twice monthly contain a statement of "year to date" earnings and rates of pay are indicated on bulletins for positions. Thus, it would appear that such information is readily available to employees to track any concern that they may have as to their individual situations and a determination as to whether a sufficient basis exists to show that the consequence of a change in their level of compensation is in fact due to some cause related to the transaction, or, here, the track line sale.

Since the Board finds the contractual provisions which the organization seeks to be made a part of the implementing Agreement go beyond the scope of the NY Dock Conditions, it must be concluded that this Arbitration Board does not have the authority to impose such a condition as a part of an arbitrated Implementing Agreement.

The Question at Issue is answered in the negative. The Carrier is not required under the NY Dock Conditions to furnish employees "affected" by a line sale with a test period average upon request for such data. Accordingly, the Implementing Agreement which has been identified above as not having included language to such an effect will be the final agreement between the parties.

Robert E. Peterson, Chairman

and Neutral Member

ARBITRATION BOARD

NEW YORK DOCK II LABOR PROTECTIVE CONDITIONS

(IMPOSED BY THE INTERSTATE COMMERCE COMMISSION

IN FINANCE DOCKET NO. 31922)

DISSENT OF ORGANIZATION MEMBER

ERNEST L. TORSKE TO FINDINGS AND AWARD

The decision of the majority in this dispute, were it to be followed by other arbitrators, would accomplish a result long sought by some railroad managers: the effective elimination of the New York Dock ("NYD") and Oregon Short Line ("OSL") Conditions as protection arrangements for railroad employees. The majority has deliberately disdained thirty-year standing precedents and by slavish adoption of the carrier's sophistic rationalizations has attempted to distinguish those precedents and the Washington Job Protection Agreement ("WJPA") from NYD. It engaged in this aberrant behavior so that it might conclude that an employee, concededly "affected as a result of a transaction", must prove, not only that he has been "placed in a worse position with respect to his compensation" without being afforded the means provided by NYD to enable him to do so, but also that a causal nexus exists

between his "worse position" and the transaction which affected him every time he files a monthly claim for a displacement allowance. It takes no imagination to realize that this destructive "first" in the 66-year history of railroad employee protection will be used by the unscrupulous to deny each such claim as it is made, thereby compelling the employee to arbitrate each month's claim in a separate Section 11 arbitration. That result, as well as the specious rationalization crafted to support it, violates not only the spirit and letter of NYD, but also the plain language of the law enacted by the Congress as 49 U.S.C. §11347.

The majority has approached the WJPA as if it were a different document from a different time designed for a purpose different from NYD; and, that %4JPA precedent had no authoritative application to NYD because of "philosophical and economic differences between the '30s and the '70s." The majority ignored the fact that NYD is not a product of the Interstate Commerce Commission ("ICC") but a product of the Congress which the ICC is compelled by law to impose. Its provisions do not derive from ICC discretion but from Congressional mandate and, when the Congress enacted the WJPA into law in 49 U.S.C. 511347, it did so along with the consistent interpretations of that protective formula as found in its Section 13 awards for the forty years preceding 1976.

in order to ensure its compliance with the directions contained in 49 U.S.C. §11347, the ICC went beyond the crafting of specific protective provisions and added a final, all embracing Article V which the majority in this dispute gives no indication of ever having read. Article V constitutes both an order of the ICC

1. It is the intent of this (NYD] appendix to provide employee protections which are not less than the benefits established under 49 U.S.C. 11347 before February 5, 1976, and under section 565 of title 45. In so doing, changes in wording and organiza=ion from arrangements earlier developed under those sections have been necessary to make such benefits applicable to transactions as defined in article 1 of this appendix. In making such changes, it is not the intent of this appendix to diminish such benefits. Thus, the terms of this appendix are to be resolved in favor of this intent to provide employee protections and benefits no less than those established under 49 U.S.C. 11347 before February 5, 1976 and under section 565 of title 45.

By way .of explanation the ICC here emphasizes that all benefits and protections provided by the New Orleans Conditions and the Appendix C-1 Amtrak protections are included in NYD and that "changes in wording and organization from arrangements earlier developed under" New Orleans and C-1, upon which the majority relies so heavily, are to have no meaning whatsoever.

The derivation of NYD is authoritatively set forth by the court which first reviewed and affirmed the ICUs imposition of NYD. (New York Dock Ry. et al. v. U.S., et al. (2nd Cir. 1979), 609 F.2d 83.) I would draw the majority's attention to pages 88 through 90 of the court's opinion which sets forth the protections of New Orleans and C-1 that the Congress required to be included in NYD.

recognized, adopts the WJPA and a protective formula known as the Oklahoma Conditions. Anyone doubting the adoption of WJPA as the basic protection provided by the New Orleans Conditions (with two modifications not relevant here) need only read the ICU s explanation of those conditions in the decision and order which created them (New Orleans Union Passenger Terminal Case, 257 I.C.C. 177, 282 (1952):

The intent and effect of the foregoing findings are that all employes adversely affected by the transaction involved should receive the protection afforded by the Washington Agreement, reduced as to dismissed employes to the extent that they receive compensation in other employment or under unemployment insurance laws: and that employes adversely affected prior to May 17, 1952 (4 years from the effective date of the order of approval) are to receive as a minimum the protection afforded by the Oklahoma Conditions as prescribed in the previous report for the period they are adversely affected prior to May 17, 1952, but if the total amount of such compensation is less than they would receive under the Washington Agreement, as limited, applied from the date of adverse affect, then they are entitled to the remaining benefits they would have enjoyed under the latter. (Emphasis supplied.)

1. The employee must be "affected as a result of a transaction." '

U.S.C. 511347 in 1976, and the ICC, through its promulgation of NYD in conformity with Congress' command, provided the means by which an employee could establish his eligibility under those two elements.

The means for establishing the first element was furnished by Secretary of Labor Hodgson under 45 U.S.C. 5565 when he designed the so-called Appendix C-1 Conditions to protect railroad employees affected by the creation of Amtrak. Recognizing that it is difficult,. if not impossible, for an employee to prove that he was affected by a particular transaction, the Secretary of Labor in designing the Appendix C-1, placed the burden of proof in arbitration proceedings squarely upon the carrier. (See NYD v. U.S., supra at 609 F.2d 89.) In an affidavit filed with the U.S. District Court for the District of Columbia in Congress of Railway Unions, et al. v. Hodgson, 326 F.Supp. 68 (D.D.C. 1971), the

Under the "New Orleans Conditions" employees had great difficulty in sustaining the burden of proof that they were affected by a particular transaction. The Railpax [Amtrak] Conditions simply require an employee to identify the transaction and the facts upon which he relies in his claim that he was affected by a transaction. The burden is then on the railroad to prove that factors other than "a" transaction affected the, employee. (Emphasis added) [by Secretary Hodgson] The clear intent of this provision and the basis upon which I accepted it as a part of my certification of the protective arrangements, is to impose upon the railroads the burden of proving that something other than the discontinuance of rail passenger service affected the "claiming" employee. The railroad does not meet its burden by showing that some discontinuance other than the one upon which the employee relief (sic) (relies] affected him. It must show affirmatively that something other than any transaction affected the

employee. Further, it is intended that a claiming employee shall prevail if it is established that a discontinuance had an effect upon the employee, even if other factors may also have affected the employee. Thus, the burden of proof has been transferred from the employee to the railroad, putting the employee in a better position than that existing under the "New orleans Conditions."

That shift in the burden of proof to the employing carrier was mandated by the Congress for use in cases in which Section 11347 is applicable and was adopted by the ICC in Section 11(e) of NYD. It is the means provided by Congress to enable an employee to establish that he or she was "affected as a result of the transaction," i.e., to establish the employee's "certification" as an affected employee.

once an employee is certified as "affected by a transaction" (and that certification has been repeatedly conceded in this case) the next step is for the employee to show that he has been placed in "a worse position with respect to compensation and rules governing working conditions." The fact that an employee is certified as "affected" by a transaction does not translate into the payment of benefits under any formula of employee protection,

including NYD. The employee also must show that he has been -adversely" affected in a manner which the protections are designed to cover by displacement, dismissal, separation or moving allowances. (See WJPA Award No. 138.)

With regard to eligibility for a displacement allowance, the displaced employee must show that he is now in a "worse position." This can occur in several ways: l._ He is placed in a lower rated position; 2. he is placed in an equivalent rated position but with

The means by which an affected employee can show "adverse" effect is also provided by NYD, by WJPA and all protection formulas in between. The employee compares his compensation in a current month with the average monthly compensation he received and average hours worked over the 12 months preceding his "adverse" affect.

own records." (WJPA Award No. 138.) Indeed, as recognized in Award No. 138, "in order to determine whether he is adversely affected the employee continued in service must know his test period earnings" because "test period earnings are an essential element in establishing eligibility for a displacement allowance under Section 6 of the Washington Agreement [now Section 5 of NYD]."

The above referenced WJPA Awards had been the settled, unquestioned interpretation of the requirements of WJPA and the New Orleans Conditions for some ten to fifteen years when Section 11347 was enacted. (See WJPA Awards Nos. 62, 68, 131, 138.)

Here the majority would deprive employees of the "essential element" necessary to establish "eligibility for a displacement allowance" until the employees had established that eligibility through some other means not provided by NYD. In adopting this "Catch-22" approach to determine eligibility, the majority accepts

uncritically the carrier's contention that to provide the employee with the means to establish "adverse" affect would be to "precertify" the employee as "affected". The carrier itself, of course, "pre-certified" the employees as affected when it acknowledged it was abolishing their positions "as a result of the transaction."

By 1976 it was the well-settled meaning of all employee protective arrangements that once employees were certified as affected and had established a "worse position with respect to compensation", they were guaranteed their test period average compensation for their entire protective periods, and were not--as the majority would now have it--required to prove each month that the loss of compensation for that month was caused directly by the transaction. WJPA Award No. 68 (emphasis in original):

The five year protection period for a displaced employee would make little sense and provide little protection if each subsequent loss of earnings in the period had to be directly related to the coordination. It is the first adverse effect of a coordination which makes the employee eligible for the benefits of Section 6 (See Section 2 (c)). Thereafter the protection of the Agreement is his for the specified five years in the ordinary case.

The majority not only disdained all precedent established prior to the enactment of Section 11347 which reflects the protection which the Congress mandated for employees but, it relied upon, and indeed followed, a single 1990 award by Marty E. Zusman in which that arbitrator, for the first time in the history of the NYD or its predecessors, viewed "Test Period Average Compensation" and "Test Period Average Hours" as being required to be furnished

an employee only after he or she had established having been placed in a "worse position" (at which point, of course, a TPA has become unnecessary); and, restricted an employee's protected period to one month at a time. This the arbitrator accomplished by ignoring all precedent, the citation of no relevant authority and without analysis of the similar provisions of OSL. The Zusman Award's only authoritative support is found in the arbitrator's expression of his personal views. Examined against the background of the history of NYD, the New Orleans Conditions, WJPA and Section 11347, those personal views are exposed as being irresponsibly contrary to precedent and violative of the plain language of both Section 11347 and the NYD conditions, particularly Article V. The majority of this panel which adopted those views in support of its conclusions is no less culpable.

The decision of the majority in this dispute is a travesty upon appropriate statutory and protective arrangement norms of interpretation and a cynically cruel deprivation of the protections and benefits Congress mandated for railroad employees adversely affected by ICC orders. I, therefore, vigorously dissent from the decision of the majority.

15 MEADOW PLACE

BRIARCLIFF MANOR. NY 10510.1131

TELEPHONE (914) 9410131

Re: Ora_anization's Member Dissent to Findings & Award, NY Dock - Implementing Agreement, Line of Track Sale to WCL.

This is in response to the contention advanced by Mr. Torske in his Dissent to the above-mentioned Findings and Award whereby it is averred, among other things, that the decision accomplishes "the effective elimination of protection arrangements for railroad employees."

Contrary to this broad assertion, the Board's Findings and Award are premised upon the determinations of numerous past awards that employees must show that a direct causal nexus exists between the transaction and the adverse affect being claimed so as to be entitled to protective benefits.

Further, nowhere in the Board's Findings and Award is it stated or inferred, much less intended, as Mr. Torskn asserts, that an employee must demonstrate "a causal nexus exists between his 'worse position' and the transaction which affected him every time he flies a monthly claim for a displacement allowance .

thereby compelling the employee to arbitrate each month's claim in a separate section-11 arbitration." The dispute at issue before the Hoard neither involved, nor do the Findings and Award touch upon matters related to the tiling o! monthly displacement allowance claims.

In responding to the dispute at issue, this Hoard concluded that the exercise of seniority account a position being abolished when a transaction is implemented is not sufficient reason, in and of itself, to identify an employee as being adversely affected and entitled to a test period average (TPA) on demand.

JUN 011992

E.L. TORSKE

A TPA is a meaningful measurement of the immediate past earnings of a displaced or dismissed employee, as those terms are used in the NY Dock Conditions. It permits a determination to be made as to the extent that a monthly displacement or dismissal allowance is in fact due a protected employee during the protective period as a consequence of that employee having been adversely affected as a direct result of the transaction. A TPA is not, therefore, something to which employees are entitled account an indirect affect of the transaction, or on the basis of speculative beliefs that the transaction may be cause for reduced compensation or job losses at a future date.

For the Board to have concluded, as the Organization urges, that an employee is entitled to a TPA for the singular reason of being required to exercise seniority when a position is abolished coincident to the implementation of a transaction, regardless of that employee having been determined by appropriate criteria to be adversely affected or placed in a worse position as a result of the transaction, would be tantamount to certifying all employees who exercise seniority as protected employees. Further, to hold that employees not only have the right to a TPA on demand, but a right to determine when their protective period will commence, would require the Board to extend protection benefits beyond those set forth in the NY Dock Conditions. Clearly, these are matters outside the authority of a board of arbitration.

In the circumstances, this arbitrator finds it difficult to comprehend the general character or nature of the dissent.

Finance Docket No. 11922 (Sub-No. 1)

WISCONSIN CENTRAL LTD.--PURCHASE EXEMPTION--;O0 LINE

RAILROAD COMPANY LINE BETWEEN SUPERIOR AND LADYSMITH, WI

Each employee assigned to the line . . . and employees affected by the exercise of displacement rights by such employee will, upon request, be provided with a computation of test period earnings and hours as described in Article I, Section 5 (of the NY Dock Conditions]. (Arbitration Board award at page 7.)

The Question at Issue is answered in the negative. The carrier is not required under the NY Dock Conditions to furnish employees "affected" by a line sale with a test period average upon request for such data. Accordingly, the Implementing Agreement which has been identified above as not having included language to such an effect will be the final agreement between the parties.

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