INTERSTATE COMMERCE COMMISSION


In the Matter of the Arbitration Between:

 UNITED TRANSPORTATION UNION, YARDMASTER DEPARTMENT,

and

 GRAND TRUNK WESTERN RAILROAD, 1NC.,

Background:

 Pursuant to Section 11 of the New York Dock Conditions

 ICC Finance Docket No. 28676

 (Sub. No. I)
This Board, on March 14, 1995, rendered a second decision in the dispute

between these parties concerning the application of Interstate Commerce Commission ("ICC" or "Commission") imposed employee protective benefits.' The first decision, rendered on May 23, 1993, with Referee John C. Fletcher serving as Neutral Member, rated that the parties' agreement dated September 4, 1979, ("1979 Agreement") was applicable as of June 24, 1980, the date the Carrier acquired the Detroit, Toledo Ironton Railroad Company ("DTI"). The second decision, with Referee Barry E. Simon serving as Neutral Member, addressed issues related to how the 1979 Agreement applies. This Board found that the parties had agreed to adopt the protective conditions set forth in New York Dock Railway - Control- Brooklyn F.aslern District, 3 54 I. C. C. 399 ("New York Dock"),


plus certain enhancements. The Board concluded that all of the New York Dock Conditions were

 applicable unless the 1979 Agreement provides otherwise.

' The proposed Award was tawtpded by the Neutral Member to both the Cagier end F.mployae Members on December 17, t 99d, but was not adopted by the Hoard until March 14, 1995.



Subsequent to the parties' receipt of the proposed Award, they attempted to resolve the issue of fringe benefits. Consequently, the matter was referred back to the Board for resolution. The Board stet in Chicago, Illinois, on March 14, 1995. The Carrier submitted a brief in advance of that hearing; the Union waived its right to do so. At the hearing, the Carrier's brief was 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 Rick A MacDougall, Assistant General Chairman, for the Union, and by Mark Rose, Manager Labor Relations, and Jo DeRoche, Esq. (Weiner, Brodsky, Sidman & Kider), for the Carrier.


There is no reference to fiinge benefits in the 1979 Agreement. Therefore, in accordance with this Board's March 14, 1995, Award, the provisions of Section 8 of the New York Dock Conditions apply. That Section reads as follows:






extent that such benefits can be so maintained under present authority of law or corporate action or through future authorization which tray be obtained.

Position of the Union: The Union has asserted that the intent of Section 8 was to make employees whole so they suffered no loss when unable to work in the Yardmaster craft. It argues the Commission contemplated that affected employees would be furloughed from the craft in which they had been working, thereby requiring them to work in another craft or not allowing them to work at all. To support its argument, the Union points to the phrase "benefits attached to his previous employment." According to the Union, this phrase would have no meaning if it was intended to deny Yardmasters their fringe benefits when they are required to work in another craft.

The Union argues Section 3 of the 1979 Agreement Considers Yardmasters as being adversely affected as of the date of the acquisition (June 24, 1980), rather than the date they are no longer able to hold Yardmaster positions. It follows, says the Union, that protection of the employees' benefits begin that day, just as their dismissai/displacement allowances.

In its claims, the Union is seeking a continuation of the level of fringe benefits enjoyed by working Yardmasters while they are either working as a Trainman or a Trainmaster because their seniority does not entitle them to work in the Yardmaster craft. For instance, the Union notes that Trainmen do trot receive paid holidays, personal days or sick days, although Yardmasters receive such benefits under the terms of their Agreement. Yardmasters also receive a supplemental sickness (disability income) insurance policy paid for by the Carrier, notes the Union. Additionally. the Union argues employees are entitled to moving expenses pursuant to Section 6 of New York Dock in the

The Union advises that coverage of fringe benefits normally would be a subject for negotiation as pact of an implementing agreement when the Carrier serves its notice under Section 4 of New York Dock of its intern to engage in a transaction. To get the provisions of the 1979 Agreement, though, the Union acknowledges it gave up the right to a 90 day notice and implementing agreements. Accordingly, it must rely upon the general provisions of the New York Dock Conditions.

Although none of the claims before the Board involves a furloughed employee, the Union argues an employee on furlough status would still be entitled to certain fringe benefits. such as insurance coverage. It acknowledges that benefits that are distinctively for employees in active service, such as sick pay, would not accrue to furloughed employees.

The Union denies it is seeking to allow employees to pyramid benefits when working in a subordinate craft. The Union avers the employee would receive the benefits of the craft in which he is working, but not less than the level of benefits to which he would be entitled if he were working as a Yardmaster.

In support of its position, the Union refers the Board to two Awards dealing with New York Dock Conditions. The first involved the Union Pacific, Western Pacific and Sacramento Northern Railroads and the United Transportation Union. Referee Charles M. Rehmus addressed twelve questions presented by the Union. The first question presented was, "Will the Health and Welfare Benefits for all Sacramento Northern Employees be preserved in their entirety?" The Board wrote

UNITED TRANSPORTATION UNION-YARDMA$rER DEPARTMENT
 GRAND TRLNK WErERN RAILROAD, INc
 ICC FINANCE DOCKET No. 78676 (Sus. No. I )
 PAoE 5

Section 2 of New York Dock provides that unless future bargaining or applicable statutes require a change, all negotiated benefits of a consolidated railroad's employees are preserved. Section 8 of New York Dock provides that employees of a railroad affected by a transaction shall not be deprived of benefits attached to their previous employment. Since the Implementing Agreement for the consolidation here created prior rights SN employca and preserved their existing labor agreement, all Health and Welfare Benefits of SN employees who continue to work prior rights SN assigrunents are preserved. Further, and contrary to the Career's Brief, if a displaced SN employee who was or should have been protected subsequently is furloughed, he is still protected and his fiinge benefits remain intact. This is required by Section 8, just as if he had originally been disnussed.


The problem arises here because the Implementing Agreement contemplates the possibility in Article 4 that a prior rights SN employee nary come to work on WP assignments or commingled SN-WP assignments. They are then "subject to the appropriate Western Pacific Collective Bargaining Agreement." Fringe benefits such as Health and Welfare arise under collective bargaining agreements. At what point or length of service under the WP contract does a prior rights SN employee shift to the different WP Health and Welfare Plan, if ever? Certainly employees cannot shift back and forth between plans on a weekly or even a monthly basis. This is a problem best solved by negotiation, but it is not clear from the record that the parties have ever directly addressed this issue. They should do so now.


Answer to Question 1

Prior rights SN employees who continue to work on prior rights SN assignments will maintain than existing Health and Welfare Benefits. The same is true for displaced SN employees entitled to protective benefits, should they subsequently be fLrtoughed.


The parties shall attempt to negotiate regarding the benefit plan shift, if any, of prior rights SN employees working under the terms of the WP agreement. Jurisdiction of this issue is retained. If the parties have not resolved it within 90 days of the date of this award, they may return for a final answer.

UNITED TRANSPORTATION UNION-YANDMASTER DEPARTmENfT
 GRAND TRuNU WEsrnaw RAQ.ROAD, INC
 ICC FINANCE DocxET No. 28676 (SLa. No. 1)
 PAGE 6

between the United Transportation Union and the Detroit, Toledo & Ironton Railroad Company.'

 That Award stated:

The claimants were under the protection period and receiving the monthly allowance as provided. Section 8 entitled Fringe Benefits provides that such benefits continue so long as such benefits are provided to other employees of the railroad in active service, or on furlough. The carrier argues that the issue is controlled by furlough provisions, ignoring that the benefits are still paid to employees in active service. The provisions of the Travelers policy have no bearing, as such language was not a part of the basic contract, and is subject to change with each new Travelers negotiation.


The Carrier assets (sic) that the dispute in this case involves the intent and meaning of the following language. which appears in Section 8 of the New York Dock Protective Conditions:



They further aver that the Carrier does not have to continue to pay premiums to Travelers for furloughed employees, therefore they do not have to pay premiums for protected furloughed Employees.





is unambigious (sic) and has been interpreted to afford a protected dismissed employee the same benefits as if he had continued to work.


herein

 dais Award, dated September 27, 1984, although involving the DTI. has no relation to the acquisition involved



The Board finds that the intent of Section 8. Fringe Benefits was intended to afford the protected employee the same rights and benefits he would have had if he continued in uninterrupted service.

 Position of the Carrier: The Carrier has fiamcd the issue presently before the Hoard as follows:

The Carrier denies it is obligated to grant Claimants any fringe benefits beyond what they have already been afforded. In support of this position, the Carrier asserts that New York Dock protects the fringe benefits associated with "employment" by the carrier, not the benefits of a certain rift. According to the Carrier, the Organization's claim for Yardmaster fringe benefits goes back to what it refers to as the Orga<tiratiods mistaken beliefthat New York Dock protects the rights of individuals to be Yardmasters; a concept that was not accepted by this Board in its March 14, 1995, Award. The Carrier asserts a person with no seniority to exercise, i.e., a dismissed employee, could claim the benefits of the only craft in which he could work and from which he was furloughed. An employee who is able to continue employment by virtue of secondary seniority is paid the benefits under the collective bargaining agreements of his current employment, concludes the Carrier.

The Carrier insists that differences in specific benefits may not be pyramided. It notes that Claimant WohlfW (Case 1) has exercised his seniority to train service, which is covered by a separate collective bargaining agreemem with the United Transportation Union, and that Claimant Vandendries (Case 2) has been promoted to Trainmaster, which is an official position not covered

The Carrier gives the following examples of the differences in flange benefits enjoyed by Claimants in their present positions versus the benefits provided by the Yardmaster Agreement. It says that Claimant Wohlfeil, working as a Trainman, is covered by medical, hospitalization and dental insurance, as well as vacations in accordance with the national agreements. It avers these benefits are comparable to those Claimant would be entitled to had he been working as a Yardmaster. In addition, however, Carrier notes he receives personal leave days (I 1 in road service, 18 in yard service) and an annual productivity payment pursuant to the crew consist agreement. Carrier says this latter benefit equaled $5,794.32 for Claimant Wohlfeil in 1993 and $5,863.30 in 1994 As a Yardmaster, according to Carrier, Claimant would receive only two personal days. He would, the Carrier notes, be eligible for two insurance programs' pursuant to the national Yardmaster Agreements. The Carrier points out, however, that these plans do not require any payment by the Carrier, it only administers a payroll deduction plan. Finally, the Carrier notes that Yardmasters are


'Claim 3 on hehnltof Claimant Miller is not at issue to ttlu case. In its March 14, 1995, Award the Hoard found the claim to be barred by !aches. Furtbarrrlave, as Claimaalt Miller is cull employed as a Yardmaster. the issue of frinse benefit, is moot as fir as he is mncameed


'Supplemental Life Insurance Policy i1G898024 and the Railroad Employees National Early Retirement Major Medical Bafetit Plan.


Trainman.

Comparing the management fringe benefits enjoyed by Claimant Vandendries with those provided by the Yardmaster Agreement, Carrier notes he does not get personal leave days, but receives as marry sick days as he needs and generally gets one more week of vacation. Additionally, the Carrier says it provides him with life insurance at the Carrier's expense.

Carrier asserts there is no arbitral precedent on this issue. It does, however, cite a November 6, 1985, Award issued by Referee Robert Peterson in a dispute between the Brotherhood Railway Carmen and the Mssouri Pacific Railroad Company involving furloughed protected Carmen seeking fringe benefits in addition to their dismissal allowances. Specifically, the issue before that Board was:







The Board, also finds, contrary to the contention of the BRC, that it was in am the findings of Special Board of Adjustment No. 570 in its Award No. 282, with Referee David Dolnick serving as the chairman and neutral member of that Board, that the carrier in the dispute before the Board was not obligated under Section 8 of the Washington Job Protection Agreement to make payment to the claimant in the dispute before that Board of a monthly premium the carrier would otherwise have paid to the insurer of the national plan of health and welfare benefits if the claimant had not been affected by a reduction in force. This Board does not find that because Special Board of Adjustment 570 had held that the claimant in the dispute before it would have been entitled to benefits provided in the health and welfare plan head he required hospitalization and/or medical care during the time he was entitled to a coordination ofbenefits allowance, that the Board was at this time making reference to the claimant being in a furloughed status, but rather that the claimant was for this purpose to have been treated as having been an active employee, albeit he had not been called for available work.


Although the Carrier suggests the Interstate Commerce Commission may have reached a contrary conclusion in a case involving Burlington Northern furloughed protected truck drivers represented by the Teamsters, it further argues that awards dealing with the entitlement of Mrloughed employees to fiinge benefits are not relevant as neither Case I nor Case 2 involves a furloughed employee. Carrier states the same is true of the Rehmus Award cited by the Union.

Finally, the Carrier has submitted affidavits of Labor Relations officials from the Norfolk Southern, the Soo Line and the Burlington Northern, each assorting that protected employees on their respective properties receive only the fringe benefits of the craft in which they are working when they


are required to exercise seniority to a secondary craft.
 Discussion:

As we noted at the beginning of this Award, the dispute herein requires an

interpretation of Section 8 of the New York Dock Conditions. Having already held that New York Dock applies unless superseded by the 1979 Agreement, we find that there is no reference to fringe benefits in the 1979 Agreement. Accordingly, Section 8 applies.

It should also be noted that this Board has also already derided the issue of whether the 1979 Agreement guarantees protected Yardmasters a job in that craft until retirement. Answering that question in the negative, we held that a Yardmaster may be required to exercise seniority to a subordinate or secondary craft and have the earnings in that craft applied against his guarantee. At issue now. is the employee's entitlement to fringe benefits when working in that secondary craft.

Section 8 ofNew York Dock is Almost identical to Section 8 of the Washington Job Protection Agreement (WJPA) of May 21, 1936. The WJPA provided as follows:


This language was then adopted, with only slight modification, by the Interstate Commerce Commission in its first imposition of protective conditions in Finance Docket 14221, Oklahoma Railway Co. Trustees Abwrionnmenr of Operation, etc.. issued May 17, 1944 (Oklahoma Condirious). Essentially the same language has been used by the Commission in every subsequent imposition of protective conditions. Because of this almost 60 year history, it is somewhat astounding that neither party to this dispute was able to produce a single arbitration award dealing with an employee's

In the absence of any arbitral guidance as to the meaning of Section 8, it is necessary for us to put the language of the provision in an historical perspective. When the WJPA was written in 1936, fringe benefits were typically not the subject of collective bargaining. The national holiday and vacation agreements were non-existent. Agreements providing for sick pay were in their early stages in the clerical craft. The carriers, however, unilaterally afforded their employees certain benefits connected with their employment. One such benefit wtu free transportation on passenger train. Employees were also eligible to join hospital associations, which were precursors of health maintenance organizations. Relief associations also existed on some carriers, notably in the South, to provide welfare-type assistance to employees and their families. Pension plans which existed on sortie carriers were soon to be replaced or supplemented by the Railroad Retirement Act.'

Despite the fact that the nation's rail carriers and the unions representing their employees eventually negotiated a broader range of fringe benefits, such as holidays, personal days, vacation, etc., the terms used in Section 8 remained unchanged for six decades. The Commission, however, has not simply repeated the provision without giving it some consideration. In Southern Railway


'nit Raihoed Retcemed Ad of 1934 was declared unconstitutional in 1935. Retlroed Rfdrrnwnt Board v. Afton Rdhway, 295 U. S. 330, 55 S. CL 758, 79 L. Ed 1468.



ICC FwANm Do=T No. 28676 (SUB. No. 1)
 PAGE 13

 Company - Control - Central of Georgia Railway Compaory, Finance Docket No. 21400, 331 ICC 151 (November 15, 1967) (Southern Control !I), the Comnussion wrote:





The point of this brief history is to attempt to get some idea what is meant by the listing of particular fiinge benefits in Section 8, to the exclusion of others. The operative phrase is "benefits attached to his previous employment, such as free transportation, hospitalization, pensions, reliefs, et cetera." Under the rules of contract interpretation, we generally apply the principle of ejusdem generis to phrases such as this. Where general words (such as "et cetera") follow an enumeration

While it could be argued the WJPA intended to cover all fringe benefits because negotiated fringe benefits were virtually non-existent in 1936, we must remember that it is no longer WJPA that we are interpreting. When New York Dock was first issued in 1979, there already existed a whole panoply of benefits, but none was included beyond those originally listed in WJPA. Those benefits also existed when the Commission decided Southern Confrd ll in 1967, but the Commission referred only to insirrarxe and hospitalization, even though it specially addressed fringe benefits in its opinion. If sick days, holidays, vacations, personal days, etc. are considered to be fringe benefits, why were they never mentioned in any of the Commission imposed protective conditions?

This Board is of the opinion that the distinction exists because the Commission recognized that employees who are transfixred to the scope of another collective bargaining agreement, whether in the same craft, but on a different carrier, or in a different craft, derive their contractual fringe benefits from the contract under which they are working at a particular time. The Commission, we believe, did not wish to iruafae with the partia prvcesa of negotiating fringe benefits tbr employees covered by coHecdve bargaining agreements. What it intended to preserve, however, were those benefits attaching to employment with the carrier, regardless of representation. The Commission carefially draws the line between the protections it affords and those which must be negotiated, such as allocation and utilization of forces and the application of seniority. This much we can conclude from the Commission's statements in Soudern Canarol ll.


`Elkrnai and Moun. How Arbiowlon Wonb, Fourth Editiao. p. 355.



This interpretation is consistent with the Union's observation that the application of fringe benefits is generally negotiated with a carrier when it serves its notice of intent to engage in a transaction. It is obvious that the Conunission intends to leave matters of collective bargaining to the parties. The fact that the Union, in this case, is not entitled to notice under Section 4 of New York Dock does not change this division of responsibility. It is not for this Board to grant fringe benefit coverage under the guise of New York Dock when the Commission has chosen to leave it to the parties to negotiate. This is precisely the finding of the Rehmus Award cited by the Union. If the parties in that dispute were unable to resolve the issue of fringe benefits through negotiation, it would be submitted to arbitration pursuant to Section 4 of New York Dock.

It is the Board's determination, therefore, that Claimants' fringe benefits in the nature of time off with pay, such as holidays, sick time and personal leave days, are to be determined by the collective bargaining agreement or personnel policies applicable to the positions they are holding. Insurance benefits, on the other hand, must be afforded to Claimants in the same manner as if they were presently employed as Yardmastere.


Award: The claim for insurance benefits on behalf of Claimants Wohlfeil and Vandendries is
 sustained. Claims for other fringe benefits are denied.

 a~
 Richard 1. B 'en ' fmon Donald R Carver


                                                  6Ply. ..

Dated: d~ ~~ .~-,,:
 Arlingto eight s. ' ois
 btMV)Lt UAlr

 JUN 7 1996
SURFACE TRA.VSPCRTATIOII HOARD

 finance Docket No. 28676 (Sub-No. 3)

GRAND TRUNK WESTERN RAILROAD- -CONTROL-

-ETROIT, TOLEDO AND IRCNTON RAILROAD COMPANY

AND

DETROIT AND TOLEDO SHORE LINE RAILRO" COMPANY

(Arbitration Review)


Decided: May 28, 1996

 This proceeding is an appeal of the decision of an arbitration panel finding that, under section 8 of our standard New York Dock labor protection formula applied in railroad consolidation proceedings,' paid leave is not a eompensable benefit but insurance benefits are. We are denying the appeal.

 BACKGROUND

 In 1979. the ICC issued a decision in Finance Docket No. 28676 (Sub-No. 1).' herein cn , the first sub-numbered case in these proceedings, allowing the Grand Trunk Western Railroad Company (GTW or 'the carrier-) to control the :etroit, Toledo and Ironton Railroad Company and the Detroit and Toledo Shore Line Railroad Company. To meet its obligation to impose labor protection conditions under 19 U. S. C. 11747, the ICC imposed a labor protection agreement negotiated between the parties. The agreement adopted the ICUs standard labor protection provisions established in New York Dock plus certain enhancements.

 A9 a result of the transaction in 11 j, three yardmaster@ were displaced into lower paying positions, with only one of them remaining in the yardmaster craft.' The United Transportation

 The ICC Termination Act of 1995. Pub. L. No. 104-81, 109 Spat. 801 (ICCTA), which was enacted on December 29, 1995, and took effect on January 1. 1996, abolished the interstate Commerce Commission (ICC) and transferred certain functions to the Surface Transportation Board (Board). Section 204 (b) (1) of the ICCTA provides, in general, that proceedings pending before the ICC on the effective date of that legislation shall be decided under the law in effect prior to January 1. 1996, insofar as- they involve functions retained by the ICCTA. This decision relates to a proceeding that was pending with the ICC prior to January 1, 1996, and to functions that are subject to Board jurisdiction pursuant to 49 U.S.C. 11326. Therefore. this decision applies the law in effect prior to the ICCTA. and Citations are to the former sections of the statute, unless otherwise indicated.

 New York Dock---l',pnerol--®rookln Eastern Disk , 360 T.C.C. 60 11979). aff'd, New York Dock-gyr. . United Staten, 609 F.2d 63 (2d Cir. 1979) (New York Dock) .

 ' Grand Trunk Western Railzoad~-Control--Detroit. To edo and Tron;on Railroad Comnanv and_nj,goit and ~oladZShore Line Railroad CSmpanv, Finance Docket No. 2!676 (Sub-No. 1) (ICC served Dec. 3, 1979).

 ' In particular, G.A. Wohlfell was displaced into a lowerpaying position as a switchman. J.A. Vandendries was displaced
                                  (continued...)

F:na-=a Docket No. 21676 (Sub-No. 3'

 'Jnion (UTU)' filed claims on te`a:: of the three displaced yardmasters, alleging that they were entitled to benefits under the labor protection agreement adepted by the ICC when it approved -L he control transaction in c75f GTW did not dispute that the displacement of the three yardmasters was due to the control transaction in GIN I and that, therefore, the three claimants were at least potentially eligible for the protective benefits imposed in that transac-ice.' GTW, however, raise) two other objections to the claims. Those objections were arbitrated in two separate proceedings held before the same panel. with Barry E. Simon serving as the neutral member.

 In the first arbitration proceeding, GTW raised the defense of laches.' By decision issued March 11, 1995, the panel found that: la) the claim of one of the yardmasterv. L.E. Miller, was entirely barred by laches; (b) the claim of the second yardmaster. J.A. vandendries, was partially barred by laches; and (c) the claim of the third yardmaster. G.A. Wohlfeil, was not barred by laches at all. In finance Docket No. 28676 (Sub-No. 2). the second sub-numbered ease in these proceedings, w upheld the panel's decision.'

 In the subsequent arbitration proceeding before the same panel, the parties disputed whether section a of the New york Dock formula entitles the claimants not barred by lathes to protection from changes in certain benefits that they received as yardmasters but lost when they were displaced (neither party clams that the negotiated enhancements are relevant to the dispute).' By decision issued April 28. 1995, the panel held

 '(...continued) first into a clerical position and subsequently became a trainmaster. The third claimant, L.E. Miller, kept his position as a yardmaster. but at a reduced salary.

 ' when the transaction was consummated in 1911, the Railroad Yardmasters of America (RYA) represented the yardmaster craft on the GTW, the acquiring carrier, but not on the carriers being acquired, where yardmasters were non-union employees. This situation continued until 1985, when, after a representation election, the National Mediation Board certified the RYA as the representative of the yardmaster craft for the entire merged system. In 1985, the RYA became a part of UTU, the petitioner in this appeal.

 ' It is well established that displaced employees are not eligible for labor protection benefits imposed on a transaction unless the displacement was caused by the transaction. rather than other factors, such as general business conditions, disciplinary action, or voluntary action by the employee.

 ' The first arbitration decision also resolved other issues that are not relevant here.

 ' grand Trunk Western aailroa . d--Control--Detroit. Toledo
 And Ironton Company and Detroit and Toled ShorA Line
 Railroad Cwmav, Finance Docket No. 28676 (Sub-No. 2) (ICC
 served Feb. 26. 1996).

 ' Section a of New York ek reads as follows (360 I.C.C.

 8. Fringe benefits.--ft employee of the railroad who is affected by a transaction shall be deprived. during his protection period. of benefits attached to his previous employment, such as free transportation,
                                (continued...

                    Finance Docket No. 26676 (Sub-No. 3)


that ccmpensa_ed _eav.,-such 33 holidays, sick time, and personal
 :rave, are n=: ca-;enoab:e benefits under section It but that the
 .3u:ance becef:a chat =leimants received "when they were
 yar_- ....asters -~rUst to Paid to them.
3y petition filed may 17, 1995, UTLJ requests that we review t'.^.e panel's _ecasion and reverse its exclusion of compensated leave as a benefit under section 6 of New York Dock.
- Cn June 6, 1995, GT'a replied. conceding that the issue is
 rev:ewable, but defending the panel's decision to exclude
 =:mpensaced leave as a compeneable benefit under section 6 of New
 York Jock. GTW, however, urges us to overturn the panel's
 :ncl_sion of insurance as a compensable benefit.
BY motion filed June 14, 1995, UTV requests leave to file a tendered response to the carrier's June 6, 1995 reply. UTTJ argues that =he carrier's request that we overturn the panel's inclusion of insurance as a compensable benefit is an untimely appeal to the panel's decision. UrU also responds to GTW'e argument that=='s position would allow the ·pyramidings of benefits. G=.t filed yet another reply disputing uTU's argument that it filed an untimely appeal.
':HE PANEL'S DECISION
The panel noted that. because it was not provided with arbitration precedent.' it relied on legislative history and gene=al principles of statutory construction. The panel noted that the relevant language of section a has remained virtually unchanged in the labor protection formulas successively adopted after the prototype formula was adopted in the privately negotiated Washington Job Protection Agreement of 1936 (NJPA)."
    '(...continued) hospitalization. pensions, reliefs, et cetera. under the same conditions and so long as such benefits continue to be accorded to other employees of the railroad, in active service or on furlough am the case may be. to the extent that such benefits can be so maintained under present authority of law or corporate action or through future authorization which may be obtained.


The word 'service' was inadvertently omitted from the original
 version and was added in ayrlina qn Nor., 'Ine.--Cone- i Mer.--St.
 L.-Can Fran. ;y. C o_, 6 I.C.C.2d 351 (1990) (BY-Frisce
 Arbitration).
" On page 11 of its decision, the Panel stated, is reference to the history of labor protection: "6seauss of this almost 60 year history, it is somewhat astounding that neither party to this dispute was able to produce a single arbitration award dealing with an employee's entitlement to fringe benefits when working in a subordinate or secondary craft."
ti A legislative history of the labor protection provisions appears in Ccr Corn -S'ontL --Che s,e and Seaboard C.L_I.. 6 I.C.C.2d 715 (1990). The Washington Job Protection Agreement appears in Appendix H of that decision. Section a of that Agreement provided as follows:
    Section e. An employee affected by a particular coordination shall not be deprived of benefits attaching to his previous employment, such as free transportation, pensions, hospitalisation, relief:

                                  (continued...,

                    .:.-.once Docket NO. 21676 (Sub-No. 1)


-`e panel noted that compensated leave had became an es ab::shed benefit, along with. many other benefits, when Ycrk _ock was decided in 1979. The panel indicated its belief. however,-chat the ICC incencicnally did not include compensated leave _n section B's list of examples of protected benefits in New York Dock.

 :`.:e panel found that the :CC in New Yore Dock distinguished between protections that must =e negotiated and protections that can automatically be imposed under the formula. This led the panel to conclude that New York Dock does not protect employees from all losses of benefits that have been established by collective bargaining. In other wrds, according to the panel, if an employee has been displaced from a position where a benefit was negotiated under collective bargaining to a position where that benefit has not been negotiated for that position. it would be inappropriate to award that benefit for the protection period under New,Yirh Dock.

 oIV argues that the panel's decision ignores the clear language of section 6. According to UTU, while compensated leave is cot specifically mentioned in section 9. wrds like 'such as" and 'ec cetera' allow the inclusion of all fringe benefits. UTV asserts that the examples listed in section s (free transportation. hospitalization, pensions, reliefs) include items that have no relation to each ocher, namely, "hospitalizationand "free transportation."

 UTV disagrees with the panel's position that Now York Dock does not protect benefits that have been negotiated. According to UT9. the proper subjects of negotiation are provided in Article I. section 4 Of New York Dock, namely. selection of forces and seniority. UTU argues that section 4 deals with changes that are necessary to implement the transaction and thus proper subjects o! negotiation, unlike fringe benefits. moreover, according to UTO. the panel's reasoning cannot be valid because hospitalization, which is a named benefit in section 1, can be the subject of collective bargaining and can differ according to the agreement negotiated by each craft union.

 GTW replies that section B protects only benefits "associated with employment" and that the compensated leave benefits sought by UTU would not be associated with employment because an unemployed or dismissed person could not be granted' leave. On page 17 of its reply, GTN suggests that section e requires that we define -benefits" in a way that is consistent and feasible for both displaced (retained but demoted) and dismissed (furloughed) employees. In other words. according to GT'A. if a presumed "benefit" may not be granted to a dismissed employee, then it cannot be considered a benefit for a displaced employee. According to GT1i, L'iv itself agreed with this distinction on the record of the panel's prior (March 14, 1lfS) decision.

 In addition, GTw has raised an issue of whether, even if w assume that compensated leave and insurance are benefits under section i, the benefits must still be denied under an asserted policy that prohibits )pyramiding" of benefits.

 ='(...continued) etc., under the same conditions and so long as such benefits continue to be accorded to other employees on his home road. in active service or on furlough as the case may be, to the extent that such benefits can be so maintained under present authority of law or corporate action or through future authorization which may be obtained.
 Finance Docket No. 71676 (Sub-NO. 3)
?ran the cart:es''ccmments, it is apparent that individual crafts on G:d can sometimes .nave unique benefits. Benefits available to lower-ranking crafts can apparently differ in kind from. and sometimes exceed in value. the benefits available to higher ranking crafts. As employees move up or down the ladder, benefits-are not always progressively added or subtracted at each step. Thus, i: employees were allowed to retain all the benefits of their prior positions and assume all the benefits of their new positions as they were displaced step-by-step down the ladder, h=eir benefits could 'pyramid" and become progressively larger. G-Y1 views this as improper under New Yolk 2eek.
According to GTW. UTU is improperly seeking to pyramid benefits. GTw argues that UTU is not merely seeking to put claimants in the same or equivalent position that they would be in as to benefits if they were still yardmasters." Rather, the carrier maintains that uTU is seeking to allow displaced claimants to receive the unique benefits of their yardmaster positions plum the unique benefits of whatever positions they were displaced into, even though neither position by itself o:fers both sets of benefits. According to MV. if we were to interpret section a as requiring claimants to receive the compensated leave and insurance benefits applying to trainmasters without making downward adjustments in the benefits available to the crafts into which claimants were displaced. they would be receiving windfall benefits that would make them better off than they would be if they had never lost their yardmaster positions. This. says the railroad, would be contrary to the intent of gU York Dock.'
In its tendered reply to GTW's reply, UlU states that it is not seeking the pyramiding of benefits as MV uses this term. UTU's argument is that there is no pyrasAding because the compensated leave benefits are different in kind than the benefits that are available in the lower Positions." VTV cites s court case in support of this position
'a If claimants were to be put in the same position concerning benefits that they would have been in as yardmaster* until the end of their protective period. they would receive pply yardmasters' benefits until the end of that period. They would not receive additional or different benefits available to employees only in the positions to which they wars displaced.
~~ On pages 16-19 of its reply, MV submits examples of how aTU's alleged approach would apply. For example, according to GTW, claimant wohlfeil is allowed to take "productivity pays as a trainman, which effectively compensates him for not taking sick leave, and this productivity pay exceeds the cash value of the unused sick leave to which he would be entitled as a yardmaster. Thus, according to GTW, if Wohlfeil were allowed an additional amount of compensated sick leave during his protected period under the yardmasters agreement under which he previously worked, with no compensating reduction in the benefits unique to hisposition as a trainman, he would be receiving 'pyramided" or windfall benefits that would make him better off than if he had never been displaced.
'4 In reference to the sick leave and productivity example discussed in note 17, above, UTU's response is that these two benefits differ in kind and are thus not susceptible to pyramiding.
    a UTU quotes the following language of New York Dock Ry. r i d e aces, 609 F.7d 03, 100-101 (ld air. 19791:


                                  (continued...)

        Finance Docket No. 28676 (Sub-No. 3)


DISCUSSION :1-ND CONCLUSIONS

 we will accept the tend®rea reply statement filed by UTU en June 11,'199S. and GTW's reply :.`.ereto filed on July 3, 1995. CM properly raises the jurisdictional issue of whether we may consider the argument in GTw'e original reply statement that t::e panel improperly awarded insurance benefits. we will not consider these arguments concerning the panel's award of insurance benefits, because GTw has not raised them in a proper or timely appeal. Our regulations require that an appeal be filed within 20 days of service of the decision. 19 CPR 1115.1. This deadline was not met because GT7i has not filed any appeal.

 Review of arbitral decisions has been limited Oto recurring or otherwise significant issues of general importance regarding the interpretation of our labor protective conditions .a QUXAW i N.YI. Transo. ,Cn.--Abando4meZ1t, 3 I.C.C.2d 729 (1917) (LAC& Curtain), aff'd, Internatio al 3hd f flee Workers v IOC, 162 F.2d 330 (D.C. Cir. 1968). Generally, the agency will not reverse an arbitrator's decision unless it fails to draw its essence from the conditions imposed, the arbitrator's action was' outside the scope of authority granted by those conditions, or there is egregious error. La p r a'n, 3 I.C.C.2d at 736. Although this case does raise significant issues concerning the interpretation of jet York Dock, the union has not demonstrated grounds for overturning the arbitral panel's determination. The panel's decision that compensated leave is not a abenefito within the meaning of section 1 is a reasonable one. not egregious error, and we will not disturb it."

 The panel declined to interpret section 6 of New York Deck, fringe benefits.' to expand the list of specified benefits.. free transportation, hospitalization. pensions. reliefs, et cetera-to include all fringe benefits. The limited recitation of fringe benefits in section 1 had its origin is the 1936 1tJFA, where the list of *free transportation, hospitalisation, pensions, and reliefs' first appeared. As the panel noted, the original recitation in 1936 reflected the entire list of fringe benefits that labor had managed to negotiate at that time. In 1979, when New or -Desk was issued, labor had negotiated other fringe benefits. But when the IOC enumerated the benefits protected under section 11367 of the Interstate Commerce Act in 1979, it did not add to the list of specific examples. Had the IOC intended to embrace all fringe benefits within section 6, the

    "(...continued) As an illustration, let us assume the existence of two identical employee protective arrangements. except that one arrangement contains a provision guaranteeing an employee retraining rights for a six year period, while the other arrangement contains a provision guaranteeing his a right of priority in rehiring until he reaches normal retirement age. We do not believe that once an employee elects to be covered by the arrangement containing the retraining rights provision, the prohibition on pyramiding of benefits should preclude him from electing to be covered by the rehiring priority provisions in the other arrangement at the same time.


" The yardmasters have not claimed that they were placed in a worse position overall related to their employment as a result of the transaction. Apparently, they received a package of fringe benefits somewhat different from. although not inferior to, that which they previously enjoyed. Thum. we need not consider that issue here. QL EN-Friseo Arbit=ption, 6 I.C.C.2d 3S1. 3S1.
 Finance Docket No. 23676 (Sub-No. 31

 pace= reasoned, is could have easily done so. Because it did not, the _=anal has concl:ded chat the ICC did not wish to do so. The cane: found -at cetera" =o be coo slender a reed to bear the weigrt :,: the "whole panoply of benefits" that existed in 1979 when \ew York Dock was issued or that exists today. We cannot say that ;his conclusion is unreasonable.

 The 77V based its appeal on the argument that section a embraces all fringe benefits, which was their only argument that compensated leave fits within the ambit of section B. In denying the appeal, we are not holding thac fringe benefits under section B are linked to the four kinds listed in the wJPA and specified in secti=n 8. In concluding that the ICC envisioned that some fringe benefits lay outside section 9 protection and must be bargained rather than mandated, the panel cited ,Southern Railway COmcany- -Control- -Central ova Railway Comeany, Finance Docket No. 21400. 331 I.C.C. 151 (Nov. 15, 1967) (e-=then Control _I). In addition to expressing that principle, the ICC there held that "insurance" was a protected fringe benefit, even though is was not one of the 4 benefits listed in section e. The ICC paired insurance with hospitalization in southern Control II, Future claims that a particular fringe benefit falls within the scope of section 9--because it is a fringe benefit of the type mentioned there--can be determined by arbitrators on a case-bycase basis, with appeal to us as necessary.

 Finally, because we are denying the appeal, w need not address the issue of whether treating compensated leave as a protected fringe benefit would result in the pyramiding of benefits.

 This decision will not significantly affect either the quality of the human environment or the conservation of energy resources.

 IS 'e Ordered:

 1. 01V'a appeal is denied.

 2. This proceeding is discontinued.

 service.

 3. This decision will be effective 30 days from the date of

    By the Hoard. Chairman Morgan, Vice Chairman Simone and


Commissioner Owen.

Vernon A. Williams

secretary