In the Matter of Arbitration between

American Train Dispatchers

Association

CSX Transportation,Inc.

Arbitration Committee:

On August 6, 1991, Hugh G. Duffy was nominated by the National Mediation Board to serve as Chairman and neutral member of a New York Dock Article I, Section 11 Arbitration Committee to resolve a dispute involving the American Train Dispatchers Association (hereinafter "Organization") and CSX Transportation, Inc. (hereinafter "Carrier"). Mr. Brenton C. Massie was designated as the representative of the Carrier, and Mr. H.E. Mullinax was designated as the representative of the Organization. On May 27, 1992, because of the temporary unavailability of Mr. Mullinax,. Mr. George J. Nixon, Jr. was designated as the representative of the Organization.

The parties submitted Pre-Hearing Briefs, and a hearing was held on June 19, 1992 in Baltimore, Maryland, during which exhibits were offered and made part of the record and oral argument was heard. The parties submitted Post-Hearing Briefs on July 27, 1992.

This case involves a dispute over the method for calculating displacement allowances under Article I, Section S(a) of the New York Dock conditions.

The Carrier contends that the "average monthly compensation" computation under Section 5(a) must be adjusted to reflect any transaction-related overtime. The Organization contends that the literal terms of Section 5(a), i.e., "total compensation received", do not allow for such an exclusion.

The parties have agreed that this Arbitration Committee should resolve a specific dispute involving John P. Barr (hereinafter "Barr"), a displaced employee, in order to provide guidance to the parties in resolving a large number of similar disputes on the property.

Beginning in 1980, the Interstate Commission (hereinafter "ICC") approved several railroad consolidation applications filed by the Carrier or its predecessor carriers ( CSX Corp.--Control-Chessie and Seaboard C.L.I., 363 I.C.C. 521(1980); Seaboard C.L.R. Co.--Merger Exemp.--Louisville & N.R. Co., Finance Docket No. 30053, 47 F.R. 50772(Nov. 9, 1982); Baltimore & Ohio Ry. Co. and C & 0 Ry. Co.--Merger Exemp, Finance Docket No. 31033, 52 F.R. 19412(May 22, 1987); and The Chesapeake & Ohio Ry. Co. and CSX Transportation, Inc.--Merger Exemp. Finance Docket No. 31106, 52 F.R. 35334 (Sept. 18, 1987).

Pursuant to Section 11347 of the Interstate Commerce Act (49

,.

U.S.C. s. 11347), the ICC imposed its standard New York Dock labor protective conditions on the Chessie-Seaboard consolidation and subsequent merger exemptions ( New York Dock Ry.--Control--Brooklyn Eastern District, 360 I.C.C. 60(1979), aff'd, 609 F. 2d 83(2d Cir. 1979).

As part of its implementation of the consolidation authority conferred upon it by the ICC, the Carrier served notice on the Organization on September 1, 1987 that on or after May 2, 1988 it would transfer and consolidate train dispatching functions throughout its system into a single centralized train dispatching operation headquartered at Jacksonville, Florida. Pursuant to Article I, Section 4(a) of New York Dock, the Carrier and the Organization signed an Implementing Agreement for this consolidation on January 9, 1988.

Approximately 420 members of the Organization in 13 States were affected by the Jacksonville consolidation. In determining whether an individual employee was entitled to receive a "displacement allowance" under Article I, Section 5(a) of New York Dock, and for other purposes, the Carrier was required to compute the employee's "average monthly compensation".

Article I, Section 5(a) reads as follows:

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 service immediately preceding the da to of his displacement as a result of the transaction (thereby producing average monthly compensation and average monthly time paid for in the test period) and provided further, that such allowance shall also be adjusted to r

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 have been entitled, he shall be paid the difference, less 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 monthly time paid for during the test period he shall be additionally compensated for such excess time a t the rate of pay of the retained position. [Emphasis in Text]

The parties are in fundamental disagreement with respect to the computation of the "average monthly compensation" under Section S(a). In its simplest terms, the Carrier contends that the compensation must be adjusted to exclude any extraordinary overtime earnings attributable to the Jacksonville transaction itself, while the Organization contends that the literal terms of Section S(a), i.e., "total compensation received", do not allow for such an exclusion.

In attempting to resolve the fundamental dispute, the parties have agreed that this Arbitration Committee should resolve a specific dispute involving the calculations made for Barr, a displaced employee formerly employed as a Train Dispatcher at the

now-closed Evansville. Indiana train dispatching facility. The resolution of this specific claim will then provide guidance to the parties in resolving a large number of similar disputes on the property.

The train dispatching facility at Evansville was closed on June 18, 1988 as part of the consolidation .of operations into Jacksonville, and train dispatcher Barr reverted to the basic craft of Clerk pending recall to a Train Dispatcher position at Jacksonville, thus becoming a displaced employee entitled to New York Dock protection.

For a period of time before and after the Evansville closing, Barr was utilized to protect the vacancies of other dispatchers at Evansville who were either in training or being transferred to Jacksonville. He was also utilized to fill in at other train dispatching locations on the property for dispatchers who were in training or being transferred. This resulted in substantial amounts of overtime, as well as reimbursement for travel and living expenses incurred while away from his headquarters location.

As stated by Barr in a letter to a Carrier official dated February 2, 1989:

Because so many dispatchers were out of the office, learning the new dispatching system, reviewing territory, etc., I worked 7 days a week from about March 1st until the office was closed on June 17, 1988.

On February 10, 1989 the Carrfer advised Barr that his 5

displacement allowance "Test Period Average", or "TPA" (the term used to denote "average monthly compensation" under Section 5(a) ) was $3,163.14 per month based on 174 average hours per month, and that his protective period commenced on June 18, 1988 and would run for the 6-year period ending June 17, 1994. Barr and the organization disputed the Carrier's computation of his TPA. ( The Organization correctly notes in its Post-Hearing Brief that italso disputes the date of commencement of Barr's protective period, and that this is an issue to be resolved separately between the parties; see Ex. TD-6E, ATDA Initial Submission).

The Carrier computed Barr's TPA in the following manner:

(1) During the 12-month period immediately prior to his displacement on June 18, 1988, Barr's average monthly earnings were $3,338.94 and average hours were 183.67 (for calculation purposes throughout, all hours are expressed in straight time; thus 8 hours of overtime would be expressed as 12 straight-time hours). This worked out to average hourly earnings of $18.18 per hour for the 12-month period. ($3,338.94 divided by 183.67 = $18.18).

(2) During the 8-month period immediately prior to the commencement of training for the consolidation, i.e., the period from June 1, 1987 to January 31, 1988, Barr's average earnings were $2.896.49 per month and average hours were 174. This resulted in a difference in average hours of 9.97 (183.67 - 174 = 9.67).

(3) The 9.67 difference in monthly hours was then multiplied by the previously calculated hourly rate of $18.18, yielding a figure of $175.80 (9.67 X $18.18 = $175.80).

(4) The $175.80 was then deducted from $3,338.94 in arriving at the TPA of $3,163.14.

The Organization contends that $3,338.94 is the correct amount for purposes of Section 5(a). The Carrier contends that $175.80 of the amount represents transaction-related overtime and should be excluded.

As the Barr claim and a number of other individual claims

remained pending in an uncertain status on the property, the

Organization filed a complaint with the ICC on October 31, 1989

computed "average

affected by the

In a decision dated June 25, 1990 (Finance Docket No. 28905, Sub - No. 24), the ICC declined to take jurisdiction, stating that "We have been reluctant to intrude into the field of claims resolution, an area that has traditionally been deferred to arbitrators...', and concluded,"We agree with CSX that this dispute should be submitted to arbitration under Article I, Section 11 of New York Dock. Consistent with Lace Curtain, the Arbitrator can address this question in the first instance. The appellate remedy before us ensures consistency with New York Dock."

The ICC subsequently denied the Organization's petition to

In American Train Dispatchers Association v. Interstate Commerce Commission, 949 F. 2d 413 (D.C. Cir. 1991), the U.S. Court of Appeals denied the Organization's petition for review of the ICUs order, holding:

We conclude that the Union seeks judicial review of a nonfinal order of the ICC, which we have no jurisdiction to grant. After an Arbitrator decides this dispute in the first instance, the Union may seek ICC review of the Arbitrator's decision...If the Union petitions for review of any final order that the agency may then issue, it may be heard at that time on the merits of its claim that the ICC improperly remitted it to arbitration. (414,415)

During the pendency of the proceedings before the U.S. Court of Appeals, the Organization by letter of April 3, 1991 notified the Carrier that it was referring "our dispute as to whether CSXT has correctly computed the 'average monthly compensation" to an Arbitration Committee under Article I, Section 11 of New York Dock, and on June 18, 1991 requested the National Mediation Board to appoint a neutral member. Following appointment of the neutral member on August 6, 1991, the proceedings of this Arbitration Committee were held in abeyance until the judicial proceedings were completed.

Numerous procedural and jurisdictional issues were raised by both parties in the Pre-Hearing Briefs, several of which were

The most important procedural agreement reached was to allow the claim of Barr to be resolved by the Committee, thus clearing the way to use that claim as a vehicle for resolving the fundamental dispute between the parties.

Although the Carrier has insisted on several of its procedural and jurisdictional objections in its Post-Hearing Brief, most of these have become either moot or unnecessary to resolve in light of the procedural agreement reached.

This leaves the question of whether the Carrier is correct that the Organization is barred from pursuing this claim by the doctrine of Laches.

Although the claim has a lengthy history and the Carrier asserts that the organization has been "forum-shopping" in this matter, the Committee would observe that the Organization has the right to attempt to advance the interests and secure the rights of its members through all legitimate avenues. It has vigorously pursued its legal and quasi-legal remedies at every stage of this dispute, and the consequent time delays cannot be said to fall within the ambit of the traditional doctrine of Laches.

He therefore find that there are no jurisdictional or procedural obstacles to moving forward to a resolution of this dispute.

The Organization argues that Article I, Section 5(a) requires the Carrier to include total compensation and total time paid for in the 12-months period immediately preceding the date of an employee's displacement.

The Organization asserts that the Carrier used an 8-month test period which was well outside of the 12-month period immediately prior to the displacement of Barr and most other Train Dispatchers. It made no attempt to identify overtime specifically performed in connection with the instant transaction, but rather assumed that any overtime beyond that during the 8-month period was for the transaction. The use of the earlier 8-month period effectively deprived Barr of most of the overtime and premium earnings which

compensation during the pre-displacement 12-month period is to be used. Such a rule may result in inequities; for example, an employee may be ill during part of the period, or there may be an economic recession. On the other hand, in anticipation of a coordination, a carrier may curtail hiring with the result of considerable overtime. But the rule is pragmatic and arbitrary, and avoids numerous disputes as to the fairness of an individual's average monthly compensation.

recognized by Arbitration Board No. 284 (Arbitrator Francis Robertson; Brotherhood of Ry. &Air line Clerks /Western Md. Ry. Co., 9/9/64), and the Committee should be guided by that decision in the instant case.

Finally, the Organization argues, Train Dispatchers are required to perform overtime by virtue of the existing Agreement. There is no voluntary "windfall" for Train Dispatchers, unlike other rail carrier employees in other crafts. Accordingly, even if overtime work was to an extent performed because of the transaction, such was performed in the ordinary contract administration of Train Dispatcher duties.

The Carrier points out first that it has not relied on a "test period" other than the 12-month period preceding implementation of the transaction. The only reason that a period of time prior to the "test period" was reviewed was for the purpose of comparison to determine whether the actual "test period" contained extraordinary transaction-related service. The comparison period could have been any period of time so long as it was of sufficient length and did not incorporate any transaction-related activities.

In the specific claim in dispute here, the Carrier has shown that Barr's increased earnings were directly related to implementation of the transaction. Barr admitted this himself since he predicated his contentions on his extraordinary and

The issue of whether "average monthly compensation" must be adjusted to reflect transaction-related overtime and other extraordinary payments has been settled for years. The Committee has been furnished with numerous Awards by Arbitrators from a long line of precedent in support of its position.

These Awards reflect the common-sense rationale that earnings which would not have accrued to the employee, in the absence of the Carrier's implementation of the transaction, would constitute a "windfall" multiplied by the number of years in the employee's protective period.

The Carrier therefore asks the Committee to deny the claim of Barr and reaffirm the long-settled practice in the railroad industry that transaction-related overtime and other extraordinary payments must be excluded when computing "average monthly compensation" under New York Dock.

protective arrangements in the railroad industry, and in particular the computation provision for displaced employees.

In the early 1930'5 the railroad industry, with a workforce then of approximately 1.6 million employees, began a long process of mergers, coordinations of facilities, abandonments, service discontinuances, and technological and organizational changes which, as the history of this dispute discloses, has not only continued into the present time but has to _a degree accelerated with the introduction of technological leaps such as the Carrier's centralized computer-assisted train dispatching facility in Jacksonville. As a result of these and other factors, the workforce in the industry has gradually declined to a level well under 300,000.

On May 21, 1936 the initial framework for protective arrangements for employees adversely affected by these changes was put in place by means of a collective bargaining agreement between 85% of the nation's carriers and 20 of the 21 railroad labor

Among the protections provided was a displacement allowance for an employee who was retained in service but who, because of the coordination, was placed 'in a worse position with respect to compensation and rules governing working conditions than he

Washington Job

NJPA provided

,jobs or were

a result of a

Section 6(c) of HJPA reads in pertinent part as follows:

In the specific case of Barr, he admitted that he worked seven