NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT NO. 1095
Joha C. FLETCHER, Chairman dr Neutral Member
John C. CAMPBELL, Labor Member
John F. INGHAM, Carrier Member
Commission approved the control by Transtar, Inc. over the Bessemer & Lake Erie Railroad Company (B&LE), the Duluth, Missabe & Iron Range Railroad Company (DM&IR), the Elgin, Joliet & Eastern Railway Company (E1&E) and the Lake Terminal Railroad Company (LT). In doing so, the Commission imposed employee protective conditions as set forth in New York Dock Ry. - Control - Brooklyn Lsastern Districl Teri'ninalz (NYD).
On November 26, 1996, the Carriers served notice upon the Organization and their clerical employees of the Carriers' intent to "coordinate their accounts payable; accounts receivable; wage payroll; car hire and demurrage; revenue accounting; general accounting; property accounting; customer accounting and agency work; stores accounting; and typing, stenography and personal computer work into the Bessemer and Lake Eric Railroad Company." According to this notice, which was served pursuant to Article 1. Section 4 ul the NYD Conditions, the work would be performed by clerical employees of the B&LL following the coordination. The notice thcn identified seventy-four (74) positions and incumbents whose work would be transferred to the H&l.F, which would increase its
clerical force by sixty-two (62) positions. The notice further advised that employees adversely affected by the coordination would be allowed NYD benefits. Finally, the Carriers advised that these changes would be placed into effect March 1, 1997, or as soon thereaafter as practicable.
The parties commenced negotiations toward reaching an implementing agreement concerning this coordination. Unable to reach an agreement, the Carriers requested arbitration. The National Mediation Board, by letter dated March 11, 1997, has designated Helen M. Witt as the Arbitrator in that matter. The parties continued to meet with the objective of reaching an implementing agreement. They have been unable, however, to reach agreement on an issue relating to the impact of an employee's declination of a position on the B&LE upon the employee's protective benefits under the February 7, 1965, Job Stabilization Agreement (JSA). They consequently agreed to submit this question to this Special Board of Adjustment for resolution, selecting John C. FLLTCI 11:12, Arbitrator, as Chairman and Neutral Member.
Th Position of the Carriers: The Carriers argue that an employee who voluntarily declines to follow his work to the B&LE as part of the NY D transaction, and is also unable to hold a position on his home road, would cease to be protected under the JSA. Carriers assert they served a proper notice in accordance with Article 1, Section 4 of NYD. They now say there are seventy-four (74) positions that will be abolished' and sixty (60J new positions will be established on the B&LE at Monroeville, Pennsylvania. This, notes the Carriers, would leave a net reduction of fourteen (14) positions as a result of the coordination.'
The Carriers aver the parties have tentatively agreed that offers for the new positions will be made in seniority order on each of the involved properties. C!n the EJ&E, for example, the Carriers note that fifty-one (51) positions will be abolished, but only forty-two (42) will move to the B&LE According to the Carriers, the affected employees have two options, namely following their work to the B&LE with NYD protection or exercise seniority to the six (6) remaining positions on the EJ&E. Employees who cannot hold one of the remaining jobs, say the Carriers, will be furloughed. It is thcsc employees, who decline a move to the B&LE but cannot hold a job on their own road, who arc the subject of this arbitration.
The Carriers note the entire coordination has been handled as a NYD transaction and the JSA, therefore, is not applicable. They cite Award No. 485 of Special Board of Adjustment No. 605, involving a dispute between the Brotherhood of Ruilroad Signalmen and CSX Transportation wherein the claimant's work had been transferred from Saginaw, Michigan, on the former Pere Marquette, to Savannah, Georgia. Instead of translcrnng or displacing junior employees on the former Pere M;llquette, the claimant sought a ,cpututiun allowance under the JSA. In denying the claim, the Board concluded that the JSA lacked
"relevance and applicability" to the claimant's situation and that the transaction "falls within the direct purview of the New York Dock conditions." The Carriers cite additional Awards of Referees Fredenberger, Sharp, O'Brien and Zack in New York Dock arbitrations holding that employees who decline to move ono not entitled to dismissal or separation allowances under NYD conditions.
The Carriers acknowledge that employees may elect protection under the JSA in lieu of NYD protection, but they deny that an employee may elect to be furloughed and remain protected under the JSA if he refuses to follow his work to the B&LE. In further support of this position, the Carriers quote Article If, Section 1 of the JSA, which provides:
In this respect, the Carriers argue the refusal to follow work to the I3&C.E is a "failure to retain or obtain a position available. . . in the exercise of . . . seniority rights in accordance with cxistinb rules or agrecinculs. Thcy contend the JSA, in consideration for retaining employees in protected service, gave them the right to make technological, opcrdtional and
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organizational changes and to transfer work and/or employees throughout the system. They also point to Article 111, Section 1 of the JSA, which states:
The Carriers conclude that an employee who declines the offer of a position at a new location cannot be considered a "dismissed employee" under NYD or the JSA. Accordingly, they ask the Board to find that employees cease to be protected under the JSA if they refuse to follow their work to the B&LE and cannot hold a job on their home road.
The Position of the OrrtanizatLon: The Organization argues Lhat a NYD transaction is governed by specific guidelines and is separate and apart from those types of circumstances contemplated by the JSA. The Organization insists there is nothing in NYD that would either modify or eliminate the terms and conditions governing employees who remain on individual carriers where facilities are not coordinated by NYD.
The Organization notes that the two protective conditions were derived from vastly different circumstances and by differing means. NYD, says the Organization, was imposed by the Interstate Commerce Commission to set forth certain minimal levels of benefits to which affected employees were entitled when their employment circumstances were altered due to two or more carriers merging facilities or work.
The Organization cites Sections 2 and 3 of Article I of NYD in support of its position. Those sections read, in part, as follows:
The JSA, on the-other hand, was reached through collective bargaining prior w NYD, says the Organization, and was intended to apply in wholly different circumstances. According to the Organization, the JSA was written to protect employees against the loss of employment in the railroad industry due to the advent of technology then being developed and implemented by carriers. In exchange for a guarantee that jobs would not be eliminated except through attrition and that earnings would not be affected by technological change, the Organizaticut notes carriers obtained the right to make technological, operational and organizational changes throughout the system within craft lines.
The Organization points out that this transaction will not result in the system-wide elimination of all clerical work, and that the Carriers have the right to utilize the remaining employees, whether they hold positions through the exercise of seniority or are furloughed. The Carriers have the right, says the Organization, to transfer these employees throughout the system to till existing or subsequent positions, or to assign them to extra work from furloughed status,
The Organization cites a Special Arbitration Hoard decision in a dispute between the Transportation-Communications International Union and the Grand Trunk Western Railroad (Rcfcrec LaRocco) setting forth guidelines under which the protection afforded by the JSA may be extinguished. The Organization quotes the following portion of that Award:
Applying the LaRocco decision, the Organization argues that at least the first three criteria have not been met in this case. It avers the Carriers' business will continue to operate as it did prior to the transaction and the employees will retain seniority rights on their respective districts where clerical work will remain. Because this work remains, the Organization asserts there is a reasonable likelihood the protected employees will perform meaningful service in the future. For these reasons, the Organization concludes both statements of issue must be answered in the negative as their protection cannot be eliminated.
Although the parues have state! their questions to this Board in broader terms, the real issue in thisdispute is the status of an employee who, after being given the opportunity to transfer to Monroeville to follow his work, declines the transfer and becomes furloughed because of insufficient seniority to work on his seniority district. To answer this qucsuon, the Board must examine both the NYD conditions and the JSA. The fact that this transaction is under the aegis of NYD does not vitiate the employees' protection under the JSA. To be cure, the individual employees have the option of electing which crmditions under which they wish to be protected.
As noted in the Awards cited by the Carriers, the Interstate Commerce Commission recognized ate efficiencies that would result through a reallocation of work forces as a result of mergers of railroads. To achieve such efficiencies, the NYD conditions were drafted to permit the carriers to integrate the work forces of the separate properties wid move work and employees to central I<xations. The Commission obviously saw that these efficiencies could be frustrated if ciripluyces refuwd to relotmte and the carriers were required to hire new employee%; at the cenlrulvcd locations. To avert such a situation, die
Commission created both an incentive to relocate and a disincentive not to relocate. As an incentive, NYD contains provisions for relocation expenses as well as protection against losses as a result of the sale of a residence or an early termination of a lease. As a disincentive, the Commission has declined to extend earnings protection to employees who decline opportunities to work that require relocation. This was not an oversight. As noted by Referee Fredenberger in his decision involving the International Association of Machinists and Aerospace Workers and the Baltimore and Ohio Railroad Company and the Louisville and Nashville Railroad Company
As a result of the NYD conditions, Carrier,' employees will have work available to them at Monroeville. Whatever rights they would have to take the Monroeville positions would arise through an implementing agreemcnt made pursuant to NYD. lit this rcgard, it is important to note that the implementing agreement is trot an agreement made pursuant to Article III of the JSA. For this reason, Article 11, Section 2 of the JSA ekes not apply. Further, Article V, which includes a provision for separation pay, does not apply because it anticipates the relocation of employcac under all implementing agreement pursuant to the JSA.
Coordleetloa or Aeeounttop Mooresville, Peoneylvenle
An implementing agreement made pursuant to NYD would entitle the Carriers' employees to transfer to Monroeville by virtue of their seniority on their individual properties. Such an arrangement would be more than a mere preference to employment in that it would additionally permit transferred employees to dovetail their seniority on the new district. Thus, the Carrier is correct that an employee who fails to accept a transfer and =not work in his own seniority district would case to be a protected employee under the JSA. Accordingly, he would be entitled to neither a wage guarantee nor separation pay.
The LaRcxco Award cited by the Organization is not on point in that it involved a dispute arising from the carrier's decision to tenninaltxl protective benefits that had already accrued and were being paid. The dispute herein relates to the initial accrual of such bcncfits.