Ohio Railway Company ("B&O") filed a joint application with the Interstate Commerce Commission ("ICC") to control the Detroit, Toledo and Ironton Railroad Company ("DTI"). Finance Docker No. 28499 (Sub-No. IF), Norfolk and Western Railroad Company mid Baltimore and Ohio Railroad Compa»yControl-Detroit, Toledo and fronton Railroad Company, ("Finance Docket No. 28499"). Four months later, the Grand Trunk Railroad Company ("GTW") and the Grand Trunk Corporation ("GTC") filed an application to control not only the DTI, but also the Detroit and Toledo Shore Line Railroad ("DTSL"). Finance Docket No. 28676 (Sub-No. 1), Grand Trunk Railroad-ControlDetroit, Toledo card Ironton Railroad and Detroit and Toledo Shore Line Railroad Company, ("Finance Docket No. 28676").
The ICUs Administrative Law Judge hearing this matter determined that both applications were consistent with the public interest, but favored the application of the GTW. Upon petition for
UNITED TRANSPORTATION UNION-YARDMASTEOR ~D..E.P~ARTMENTadministrative review of the initial decision, the ICC opened the record on September 19, 1979, and scheduled oral argument for October 2, 1979.
In anticipation of its acquisition of the DTI and the DTSL, the GTW negotiated protection agreements with most of its employees. One such agreement (" 1979 Agreement") was reached with the Railroad Yardmasters of America' on September 4, 1979. The agreement reached with the RYA was identical in all respects to agreements reached with all of the other signatory organizations.
The ICC reopened the record on October 26, 1979, on a joint motion from the GTW and the various organization to receive the protection agreements.
The ICC approved the acquisition by the GTW of the DTI and the DTSL, through the purchase of outstanding stock, in Finance Docket No. 28676 (Sub-No. 1), Grand Trunk Western Railroad-Control-Detroit, Toledo and Iron ton Railroad Company and Detroit and Toledo Shore Litre Railroad Company, served December 3, 1979 ("Final Decision"). The ICC found that the protection agreement reached between the GTW and the various organizations had met the minimum requirements of § 11347 of the Interstate Commerce Act, and adopted it in its Final Decision. The ICC wrote:
CUTZJ") end is now known as the United Transportation Union - Yardmaster Department. That event is not significant to this case. For the sake of simplicity, the term 'Umon,' wben used is this Award, shell refer to the RYA both before and after becoming a pert of the UTU.
On June 24, 1980, the GTW acquired the stock of the DTI from its previous owner, Pennco. GTW was already a half owner of the DTSL, and acquired the remaining stock of that carrier from it co-owner, the NW, on April 13, 1981. On October 1, 1981, the operation of the DTSL was merged into the GTW's operation, and a similar merger with the DTI was accomplished on December 31, 1983.
At the time of the acquisitions, yardmaster employees on the GTW and the DTSL were represented by the RYA, but were unrepresented on the DTI. On January 8, 1985, the National Mediation Board, following a representation election in which yardmasters on all three former properties participated, certified the RYA as the exclusive representative of the class and waft of yardmasters on the entire merged system. Since that date, the parties have applied the GTW Yardmasters Agreement on the former GTW and the DTI,' but have applied the DTSL Yardmasters Agreement on that property.
On May 7, 1993, the parties hereto participated in a Section 11 Arbitration Board with Referee John C. Fletcher serving as Neutral Member of the Board ("the Fletcher Board"). That Board accepted the Union's statement of issue, which read as follows:
'Although the terms of the same agreement are applicable on both properties, the parties have heated the two railroads as if they wen: separate carriers, e.&, there has been no intermingling of the work force between the two railroads and separate seniority rosters are maintained UNITED TRANSPORTATION U\1014-YARD\LASTPR DEPARnIENT
In its Award, issued on May 24, 1993, the Fletcher Board answered this question in the affirmative. As a consequence of reaching this conclusion, the Board found that the 1979 Agreement was applicable to GTW yardmasters effective with the acquisition of the DTI on June 24, 1980. The parties were subsequently unable to resolve certain disputes concerning the application of the 1979 Agreement with respect to GTW yardmasters. Accordingly, they established this Board of Arbitration. The Carrier named Richard J. OBrien, Assistant Director Labor Relations, as its Member of the Board. The Union named Donald R Carver, Assistant to the President, as its Member of the Board. They mutually selected Barry E. Simon to serve as Chairman and Neutral Member. Pre-hearing briefs were furnished the Chairman by both parties on December 3, 1994. The Board met in the offices of the Carrier's attorneys in Washington, D.C. on December 7, 1994. At that hearing, the parties' pre-hearing briefs were reviewed and both sides were given full opportunity to present argument and evidence in support of their positions. In addition to the Board Members, appearances were made by Lloyd E. Miller, General Chairman, and William G. Mahoney, Esq. (Mghsaw, Mahoney & Friedman), for the Union, and by Mark Rose, Manager Labor Relations, and Jo DeRoche, Esq. (Weiner, Brodsky, Sidman & Kider), for the Carrier.
The Union insists the ICC made only one imposition of protection, namely, the 1979 Agreement. It denies that the ICC also imposed New York Dock Conditions at the same time. It asserts that affected employees would have whatever protection the ICC imposed (the 1979 Agreement) until there was a single working agreement pursuant to Section 11 of the 1979 Agreement. At that point, they still are covered by the 1979 Agreement. The Union argues there is no way employees could be covered by only the New York Dock Conditions because they were never imposed by the ICC.
According to the Union, Claimants are protected by both the attrition and compensation provisions of the 1979 Agreement, as imposed by the ICC. Although the Carrier has denied that any order, decision or agreement "can be read to freeze the number of yardmaster jobs [it] must
The Norfolk & Western has entered into an agreement with 19 of the principal labor organizations, members of the Railway Labor Executives' Association, for the protection of employees of Norfolk & Western, Nickel Plate, and Wabash, as well as persons employed on the Sandusky line of Pennsylvania, represented by these organizations. This agreement, which provides for the assumption by Norfolk & Western of all outstanding labor contracts, schedules, and agreements of Nickel Plate, Wabash, as well as those having application on the Sandusky line, basically requires that job eliminations as a result of the unification be accomplished only through normal attrition. Under its terms, Norfolk & Western agrees to take into its employment, upon consummation of the merger, lease, and purchase, all employees of the lines involved with the guarantee that they will not be adversely affected in their employment as a result of the proposed transactions or for any reason other than fitrioughs due to seasonal requirements or a decline in volume of traffic or revenue.`
Employees. - Norfolk & Western has entered into an agreement with 19 of the principal labor organizations, members of Railway Labor Executives' Association, for the protection of employees of Norfolk & Western and A.C.Y. This agreement, which provides for the assumption by Norfolk & Western of all outstanding labor contracts, schedules, and agreements of A.C.Y., basically requires that job eliminations as a result of the proposed acquisition of control be accomplished only through normal attrition.
It was stipulated and agreed that any report and order approving the proposed acquisition of control may consider this agreement as being made pursuant to and in conformity with section 5(2)(t) of the Interstate Commerce Act for the protectior) of covered employees.
In view of this agreement, no conditions need be imposed under any authority granted herein for the protection of those employees covered by such agreement.'
The Union rejects the Carrier's position that job protection may be satisfied by providing the job's equivalent in wages. The Union insists the ICC has already defined the attrition protection afforded by the 1979 Agreement as requiring "no reduction in force of employment shall occur." Additionally, the Union cites an Award of an Arbitration Board on which Dana E. Eischen served as Chairmart and Neutral Member.b Although the Board found that the claimant therein had been dismissed for just cause, the Union notes the following finding of the Board:
The Union further notes it elected coverage under Section 8(b) of the 1979 Agreement for addressing any decline in business. According to the Union, this provision prohibits the Carrier from
reducing the number of protected yardmaster employees due to a decline in business and is consistent with "attrition protection." The Union explains that Section 8(b) permits the Carrier only to reduce
The Union acknowledges that the 1979 Ageement does not stand by itself. Rather, the Union agrees it incorporates certain elements of the New York Dock Conditions. Looking at Section 3 of
'in the Maser of the Arbamanon Between Grant E Howler and Grand Trunk Western Railroad Comparry, decided Ikociaber 13, 1985. The claimant therein was a managerial employee not covered by a collective bargaining agreement UNITED TRANSPORTATION UMON-YARDHLASTER DEPARTMENT
the 1979 Agreement, the Union asserts Sections 5(c) and 6(d) of Article I of the New York Dock Conditions apply because they are specifically referenced. Similarly, the Union refers to the Note to Section 8, which cites Article I, Section 5(a)(2nd paragraph) and Section 6(a) of the New York Dock Conditions. The Union urges this Board to follow the principle of expressio unius est exclusio alterius and find that provisions of New York Dock Sections 5 and 6 not specifically referenced in the 1979 Agreement are not a part thereof.
The Union finds it significant that the parties did not include New York Dock Section 5(axlst paragraph) in that it requires a protected employee to exercise seniority to a secondary craft to protect his guarantee. Not including this provision, according to the Union, is consistent with the concept that the 1979 Agreement is an attrition agreement.
With respect to the three individual claims, the Union states that G. A. Wohlfeil, the first Claimant, held a regular yardmaster position prior to June 24, 1980. That position was subsequently abolished and Claimant Wohlfed exercised his seniority to a switchman position. The second Claimant, J. A. Vandendries, also held a regular yardmaster position prior to June 24, 1980. As the result of the abolishment of his position, he exercised his seniority in the clerical craft. He subsequently was appointed to a non-agreement Trainmaster position. The third Claimant, L. E. Ivfiller, has remained employed as a yardmaster, although his monthly earnings have been dinunished since June 24, 1980. The claims on behalf of the first two Claimants seek their return to their yardmaster positions. All three claims seek lost earnings.
is patently erroneous. According to the Carrier, the Board relied upon a single sentence, which it acknowledges was "inartfully drafted," and created a situation that is markedly different from what was understood to be the agreement with thirteen other unions. The Carrier, therefore, asks this Board to overturn the Award of the Fletcher Board.
The Carrier recognizes that appeal could have been taken to the ICC, however, it doubted that the errors it cites would meet the Commission's standards for accepting the Award on appeal or for reversing the Board's decision.' Carrier reached this conclusion because the alleged errors involved an agreement between only a single carrier and a single union. Furthermore, Carrier felt the impact of the Award was limited because all yardmasters with a seniority date prior to June 24, 1980 had continued to be employed by the Carrier in some capacity or had retired.
Asserting that the yardmasters still do not have a single working agreement for the merged system, Carrier insists the only applicable protection is the basic New York Dock Conditions. Carrier further notes this requires the Union to prove a causal nexus between any alleged adverse effect and the transaction. In overturning the Award of the Fletcher Board, the Carrier would have this Board find that the 1979 Agreement was not applicable to yardmasters.
'The process of reviewing such decisions and the standards of review were first developed by the Interstate Commerce Commission in Chicago & North Western Transportation Company -Abandonment, 3 LC.C. 2d 729, 736 (1987) ('lace Curtain'), affd sub nom. International Brotherhood o JElecrrical fVorlren v. ICC, 862 F.2d 330 (D.C. Cir. 1988).
Carrier proposes that the first issue be answered in the affirmative, the next three be answered in the negative and the last be answered that "Section 6 applies and has not been modified by the 1979
The Carrier submits that the 1979 Agreement is, by its own terms, New York Dock Conditions, as modified by Sections 2 through 10 of the Agreement. The Carrier primarily bases this
Section 1. The terms and conditions imposed in New York Dock Railway- Control - Brooklyn Eastern District 354 I.C.C. 399, as modified by the Commission's Decision served in that proceeding on February 23, 1979, ("New York Dock") shall be applied for the protection of the interests of employees of GTW, Detroit, Toledo & Ironton Railroad Company (DT&I) and the Detroit and Toledo
Carrier also cites the ICUs Final Decision as stating, at page 532, "[w]e find that the agreement satisfies the minimum requirements of section 11347 and we therefore adopt the agreement as providing the appropriate measure of protection for employees in this case." Further, the Carrier quotes the ICC as saying the 1979 Agreement "not only incorporates the terms set out in New York Dock but includes various other employee benefits." Accordingly, Carrier argues the first issue must be answered in the affirmative.
With respect to Carnet's second issue, Carrier avers that Sections 5(a) and 6(a) of New York Dock provide the method for computing monthly guarantees, whether they are in the form of displacement allowances or dismissal allowances. It denies that either formula limits the calculations to the earnings within a particular craft. Carrier disputes the Union's assertion that test period figures provided to GTW yardmasters with a seniority date of June 24, 1980, or earlier, should include only income earned as yardmasters. Carrier cites several arbitral decisions in support of its position that the agreement protects compensation rather than the rate of pay, and must include all earnings made during the test period.
As to its third issue, Carrier argues it has not forfeited its right to reduce forces and abolish jobs. Although the Union has characterized the 1979 Agreement as an attrition agreement, Carrier notes there is no reference in either the Agreement or New York Dock to attrition protection. Carrier
says the Union's position is based solely upon the ICCs use of the term "attrition protection" to support its conclusion that employees are guaranteed yardmaster jobs for life. Nevertheless, Carrier adopts the definition of "attrition protection" from In the matter of the Valuation Proceedings under Sections 303(c) and 306 of the Regional Rail Reorganization Act of 1973, 531 F. Supp. 1191 (1981), wherein the court defined it as a guarantee of "employment or its equivalent in wages and fringe benefits until the employee dies, retires, resigns, becomes disabled, or refuses to accept a bona fide job opening' The 1979 Agreement, according to the Carrier, has the effect of continuing protection until the protected employees qualify for GA46000, rather than for only six years as provided in New York Dock. Carrier compares the 1979 Agreement to the agreement establishing the Burlington Northern, and cites both the ICCs decision approving the merger,` and a later decision regarding the proper application of the conditions."
Carrier further asserts it is privileged to reduce the force complying only with the procedures set forth in the schedule rules. It denies it must engage in negotiating an implementing agreement pursuant to New York Dock Section 4, which requires, inter alia, a ninety day notice.
Carrier next asserts its fourth issue must be answered in the negative. It insists that yardmasters who have been promoted to such a position from another craft and retain seniority in the
"Great Northern Pac. -Merger-Great Northern Ry., 331 I.C.C. 228 (1967), effd sub nom. United States v. LC.C., 296 F.Supp. 853 (D.D.C. 1968), affd, 396 U.S. 491 (1970).
"Great Northern Pacific Qt Burlington Lines, Inc. - Merger - Great Northern Railway - In the Matter of William A. Rilling, Finance Docket No. 21478 (Sub-No. 13), 8 I.C.C.2d 229, served December 11, 1991 ("Great Northern'). UNRED TRMNSPORTATIO% UN7o..17-YARDAUSM tEPAxntErrr
other craft have both a right and a responsibility to exercise such seniority when they have been displaced from the yardmaster craft. The Carrier states that the ICC imposed protective conditions without regard to craft or class fines. None of the agreements negotiated with the various unions contains any restrictions upon employees exercising their seniority, according to the Carrier. Carrier cites several Awards, including one involving yardmasters on the C&O/SCL, holding that the duty to exercise seniority is not limited to a single craft. Carrier also cites an ICC decision" vacating an Award under the Norfolk and Western Merger Agreement, which Carrier states includes "attrition"
Central to the [Washington Job Protection Agreement], as outlined in section 6(a) of that agreement, is that employees are not placed in a "worse position" so as to trigger the receipt of compensatory benefits when they can exercise seniority rights to take positions producing equal or greater compensation elsewhere in the consolidated system. That requirement embodies the fundamental bargain in WJPA and all subsequent Commission-developed labor conditions that employees exercise existing contractual rights (seniority) to take available work elsewhere in exchange for economic protections that would be afforded should they ultimately be displaced. See e.z. New York Dock. 360 I.C.C. at 86 (Article I, section 5(a)).
By its own words, section 1(b) of the Merger Agreement simply added to the WJPA benefits adopted in section 1(a) by guaranteeing working-life economic protection, specifying that no employee could be placed in a "worse position" regarding compensation and working conditions "at any time during [this] employment." Nowhere does section 1(b) expressly withdraw the WJPA precondition that seniority must be exercised to secure those benefits.
"Norfolk and Western Railway Company and New York Chicago and St Louis Railroad Company - Merger, Etc. (Arbitration Review), Finance Docket No. 21510 (Sub-No. 4), (not printed), xtled July 27, 1993 ('NW Merger'). UNTTEy TRANSPORTAnO\ U"ION-YARD%LLSTFR DEPARTI¢NT
Finally, with regard to its fifth issue, the Carrier asserts that a dismissed employee may be required to finish proof of any other earnings to be used by the Carrier as an offset against the total amount of a dismissal allowance. In this respect, the Carrier cites Section 6(c) of New York Dock, which reads as follows:
With regard to the specific claims, Carrier asks this Board to invoke the doctrine of laches. It notes that the first claim filed by the Union was made in 1986 on behalf of Yardmaster Byle. This claim, says the Carrier, was dismissed by Referee Peterson on July 26, 1989, on the basis of laches because of a nineteen month delay between the date of the alleged adverse effect and the filing of the claim. Relying upon that Award, Carrier insists that claims for periods as far back as 1980 are also barred Carrier insists that a thirteen year delay in progressing claims to arbitration is unreasonable and detrimental to the Carrier. Carrier further asserts that neither it nor the Union has access to the necessary data to make the necessary calculations for guarantee payments for claims prior to the Award of the Fletcher Board.
In Claim No. 1 on behalf of G. A Wohlfeil, Carrier states his position as the BOC Yardmaster at Detroit was abolished in December 1992. Carrier asks that any portion of his claim pre-dating the Award of the Fletcher Board be denied on the basis of laches. Subsequent thereto, Carrier asks that Claimant Wohifeirs guarantee be reduced by the 0 amount of his other earnings. Carrier makes the
same argument in Claim No. 2 on behalf of J. Vandendries, except it avers he earned in excess of his guarantee while employed as a trainmaster. The Carrier reinforces its laces argument in Claim No. 3 on behalf of L. E. Miller by noting his guarantee was based upon considerable overtime worked during the test period. Subsequently, Carrier had not documented the overtime opportunities he might have foregone, resulting in his earning less than his guarantee, although he worked every straight time shift.
Even if we were to review the Award of the Fletcher Board, we would be required to give it full recognition unless we were convinced it is patently erroneous. Not only do we not reach this conclusion, we find that we must concur with the findings of the Fletcher Board. The Carrier argues that the Fletcher Board relied upon a strict construction of "inartfiulhy drafted" language rather than what it characterizes as the clear intent of the parties. In labor contract negotiation, the most
effective way to manifest the "clear intent" of the parties is to reduce it to written language in the agreement. If the language can be interpreted without resort to external sources, the Arbitrator is compelled to do so.
The main issue before the Fletcher Board was whether or not the 1979 Agreement was applicable to GTW yardmasters. The critical provision of the Agreement stated it would be "effective upon the date of acquisition or the date upon which the labor organization and GTW come to agreement on a single working agreement for all employees they represent on the GTW and DT&I, whichever is later." When GTW drafted this Agreement to be used with all of the organizations representing its employees, there is no doubt it desired to have a single working agreement cover all the employees of a particular class or craft on both properties. Carrier conditioned coverage under the Agreement upon obtaining such a concession from the organizations.
In the case of the yardmasters, however, the Fletcher Board found that the condition had been satisfied on the date of the acquisition because the GTW yardmasters were the only ones represented by the Union The DTI yardmasters were officials, not represented by any organization. Presumably, Carrier had intended that the Agreement would be effective upon the Union securing the right to represent the DTI yardmasters and then placing them within the coverage of the GTW working
agreement. This intent, however, was not expressed in the 1979 Agreement, or any other correspondence. It is evident Carrier overlooked the unique situation with the yardmasters when it proffered an identical agreement to all of the organizations. Carrier was aware, however, that the DTI yardmasters were not represented. Consequently, it cannot claim it entered into the Agreement based upon a mistake in fact. Had the Fletcher Board read the 1979 Agreement to mean that a single working agreement must be in place for all GTW and DTI yardmasters, the Board would have been engaged in redrafting the Agreement, which is beyond its jurisdiction. The language Carrier used was explicit. The fact that it is now dissatisfied with the result is not a basis to overturn the earlier Award.
Finding that the 1979 Agreement applies, we now turn to the question of the relationship between that Agreement and the New York Dock Conditions. We reject the Union's idea that only specified provisions of New York Dock are applicable. Section 1 of the 1979 Agreement is clear in that it provides that all of New York Dock applies, unless the Agreement has modified any portion of those Conditions. An abridged reading of Section 1 shows that "The terms and conditions imposed in New York Dock . . . shall be applied . . . , except as those terms are modified herein." The 1979 Agreement was not written to stand alone. Rather, the parties agreed to adopt New York Dock, plus certain enhancements. Thus, we conclude that all of the New York Dock Conditions are applicable unless the 1979 Agreement provides otherwise. The Carrier's first issue is, therefore, answered in the affirmative.
To determine the applicability of any of the New York Dock provisions, we must look to the 1979 Agreement to see if there are any modifications therein. With regard to the calculation of test
period earnings, which are covered by New York Dock Section 5(aXsecond paragraph) for displacement allowances and Section 6(a) for dismissal allowances, our review of the 1979 Agreement shows first that Section 8 recognizes that these provisions shall be used for computing monthly guarantees, except when guarantees are to be reduced as a result of a decline in business as determined by Section 8(b). Secondly, we find that Section 9 of the 1979 Agreement is the only other provision that modifies New York Dock in this regard. Section 9 establishes a method of determining a monthly guarantee for union officials. We conclude, therefore, that test period earnings are to be calculated in the manner established by New York Dock, as interpreted by various Arbitration Boards. In particular, test period earnings are to take into consideration all earnings paid by the Carrier during the test period, without regard to the class or craft for which those earnings were paid. An Arbitration Committee, chaired by Referee Fletcher, in an Award involving a dispute between the International Brotherhood of Electrical Workers and CSX Transportation, Inc., held:
In our view, this is a correct interpretation of New York Dock. To the extent that Claimants performed service in crafts or classes other than yardmaster during their test periods, such compensation and time shall be factored into their monthly guarantees. The answer to the Carrier's second issue is that with the exception of the computation of monthly guarantees for union officials, Section 5(a) of New York Dock has not been modified.
Carrier's third issue goes to the question of what is meant by an attrition agreement. As noted by the Carrier, that term does not appear in the 1979 Agreement, but is found in the ICUs Final Decision. Although the ICC is not charged with the interpretation of a protective agreement once it has been adopted, the Commission is responsible for evaluating such agreements to determine if they meet the minimum standards of protection established by the Interstate Commerce Act. In this regard, the ICC is well-suited to its task, and its statements must be given great deference. The real question is what the ICC meant when it characterized the 1979 Agreement as an attrition agreement. We find most significant the ICUs decision in Great Northern Pacific & Burlington Lines, Inc. - Merger - Great Northern Railway - In the Matter of William A. Rilling,r' wherein it wrote:
permitted by the express terms of the conditions. However, it is clear from practice under attrition-type conditions (including the Landis case) that the railroad is permitted to discharge without cause, as long as the employee is compensated at the appropriate level for the rest of his or her working life or agrees to a lump sum, as here. To say, as Mr. Rifling arguably contends, that no discharge without cause is possible is to say that the merger conditions amounted to a "job freeze" in which employers would have to retain employees even though no work was available. The courts have consistently held that a job freeze was not contemplated by Congress or the Commission when the imposition of labor protective conditions was established as a requirement for a merger's approval. See, RLE4 v. United Stares, 339 U.S. 142, 153 (1950).
We conclude that Mr. Billing's release agreement does not vary the terms of the merger protective conditions and therefore is valid. We find that the release agreement constitutes a "resignation" within the express terms of the Northern Lines conditions. We also find, as independent ground, that even under attrition-type conditions such as those imposed here, the railroad may discharge an employee without cause so long as it compensates the employee at the appropriate level for the rest of his or her working life or reaches an agreement, as here, for a lump-sum payment.
From our reading of the above decision, it is clear to this Board that the ICC does not consider an attrition agreement to be one that prohibits Carrier from reducing the number of jobs it has in any class or craft. The ICC drew a distinction between the two, calling the latter a "job freeze," a term the ICC has not used in connection with this merger. We find, as did the ICC in the above decision, that underan attrition agreement the Carrier is obligated to provide a specified level of compensation to a protected employee until he or she leaves the work force through normal attrition, i.e., as a result of death, retirement, discharge for cause or resignation. When the ICC stated that "no reduction in force of employment shall occur other than principally by" normal attrition, we conclude it meant that the number of protected employees, rather than the number of jobs or positions, shall UN= TRANSPORTATION UNION-YARDAIASTER DEPARTAIDTT
not be reduced. We find nothing in the 1979 Agreement that would place any further restriction upon the Carrier. The Union's reference to its election of Section 8(b) of the Agreement is not persuasive. That provision merely directs how the Carrier may reduce its protection liability in the event of a decline in business. The Union rejected Section 8(a), which would permit the Carrier to reduce the number of employees subject to protection, and accepted the provision that allows a proportionate reduction in all protected yardmasters' guarantees. Section 8(a) cannot be read to be the only mechanism the Carrier had to reduce jobs. The Carrier's third issue, therefore, is answered in the negative.
Carrier's fourth issue concerns the interrelationship between the 1979 Agreement and New York Dock. Under New York Dock it is well established that a protected employee is obligated to accept work within a subordinate craft when he or she is unable to exercise seniority to a position in the primary craft. The employee's failure to do so permits the Carrier to charge the earnings of the subordinate position against any guarantee payments to which the employee would be entitled. This is the intent of Article I, Section 5(b) of New York Dock, which reads as follows:
Under this provision, it has been established by several Arbitration Boards that the "normal exercise of . . . seniority rights under existing agreements" includes the exercise of seniority to a subordinate craft. One such Award is Award No. 2 of the Arbitration Board between the
International Brotherhood of Electrical Workers and Burlington Northern Railroad Company, with John B. LaRocco serving as Neutral Member and Chair. The dispute therein involved an electrician apprentice who also held seniority as a laborer under another agreement. The Board held:
Our reading of the New York Dock Conditions leads to no different a conclusion. Under New York Dock, a yardmaster holding seniority in another craft, such as in train service or as a clerk, must exercise such seniority when he can no longer hold a position as a yardmaster. Should he fail to do so, his guarantee may be reduced by what he would have earned had he exercised such seniority.
The only remaining question is whether the 1979 Agreement modified New York Dock in this regard. We have already rejected the Union's argument that the first paragraph of Section 5(a) and Section 5(b) do not apply because they are not specifically mentioned in the 1979 Agreement. We find no provision in the 1979 Agreement that either modifies or voids these paragraphs.
Accordingly, we find that Claimants' guarantees may be reduced each month by the amount they would have earned in other crafts if they failed to exercise seniority to such crafts. The Carrier's fourth issue, therefore, is answered in the negative.
For the same reasons, we find that Carries fifth issue must be answered that New York Dock Section 6 is applicable and that the 1979 Agreement has not modified the Carries right to offset other earnings against a protection claim.
We now turn to the Carries position that the claims should be barred, in whole or in part, under the doctrine of laches. For its part, the Union refers to the following statement contained in the Carrier's submission before the Fletcher Board:
We interpret Carrier's statement to be a waiver of the defense of laches as to all claims then pending. We do not read it to be an unconditional waiver. Thus, we find that the defense was preserved with respect to claims that had not yet been filed. Each of these claims must be evaluated to determine if the claim reaches back so far that it is unduly burdensome upon the Carrier. The fact that the parties were not certain that the 1979 Agreement was applicable to yardmasters until the Fletcher Board issued its Award on May 24, 1993, is not relevant to our consideration of whether laches will be applied. Claimants' rights arose when they were adversely affected, not when the Award was rendered.
Looldng first at Claim No. 1 on behalf of G. A Wohlfeil, we find that the first claim filed on his behalf was on October 15, 1993, and covered a period from December 1992 through September 1993. Although this claim was filed subsequent to the Award of the Fletcher Board, it covers only six months prior to the Award. Additionally, we do not find that the Carrier had raised laches as a defense to this claim during the handling of the dispute on the property. Accordingly, we find that the claim is not barred.
Claim No. 2 on behalf of 1. Vandendries was first filed on November 10, 1993, and covers the period from June 1986 through October 1993. 1n its denial on the second level, Carrier raised a !aches defense. The Union asserts, however, that this was merely a refiling of a claim that was first presented in 1986. This Board, however, has not been furnished with copies of the 1986 claim and is, therefore, unable to make such a determination. We must, therefore, treat them as separate claims. With respect to the claim as it was presented to the Board, we find that the portion of the claim covering any period prior to December 1992 (the same date on which Claim No. 1 begins) is barred by the doctrine of laches. The balance of the claim is timely. We make no ruling with respect to whatever claim the Union might have filed earlier. There shall, however, be no duplication of claims.
Claim No. 3 on behalf of L. E. Miller was filed on October 15, 1993, and covers the period from September 1986 through September 1989. In its first denial of the claim on November 22, 1993, the Carrier raised a laches defense. The Union asserts laches is not applicable because the employees had not been furnished with computations of their test period earnings until August 1993, after the Fletcher Board issued its Award. Without such information, the Union says it could not file
proper claims. The facts in Case No. 2, however, belie this position. Obviously, claims were filed before the Fletcher Board met, although they may not have had the specificity that is now possible with having the test period earnings. Nevertheless, certain employees protected their rights by filing claims. The burden then fell to the Carrier to compile the necessary information. The fact that Carrier tray have waited to do so until it found that its position regarding the application of the 1979 Agreement was erroneous did not alter the employees' rights or obligations. Claimant Miller, however, filed no claim and we find, accordingly, that the claim presented herein is barred under the
At the suggestion of the parties, the Board has not undertaken to compute the exact amounts to which Claimants are entitled under those claims not found to be barred by laches. The parties have assured the Board that the general interpretations herein shall be sufficient to permit them to reach agreement as to Claimants' entitlements, if any. The Board, however, will retain jurisdiction over these claims should the parties, after reasonable attempt, be unable to reach resolution.
GRAND TRONK WESTERN RAILROAD CCMARY--MBRGER-_
DETROIT AND TOLEDO SHORE LIEF
RAILROAD COMPANY--ARBITRATION REVIEW
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