J. C. Campbell, Organization Member
Dan Kozak~ Carrier Member
Joseph A. Sickles, Neutral Member
The Interstate Commerce Commission (ICC), the predecessor agency of the Surface TtavspvVativn Board (STB), approved a tuerger and consolidation of the Durlington Northern Railroad Co. (BN) and the Atchison, Topeka and Santa Fe Railway Co. (SF) on August 16, 1995 (ICC Finance Docket No. 32549). The ICC imposed the New York Duck labor protecfve conditions for affected employees. On December 19, 1995, the Burlington Northern Santa Fe Railway Company (BNSF or the Carrier) and the Transportation-Communications Intett:atioral Union (TCU or the Organization) reached an implementing agreement under the New York Dock requirements.
Subsequently, the Carrier notified the Organization or. January 13. 1997, of its plans to relocate certain clerical work The Carrier planned to move the field support work that was performed et SF Seniority District 709 in Topeka. Kansas to a BN district in Fort WortK Texas, 114
clerical positions were affected. At the same time, the customer service work that was beingMeanwhile, the Carrier also notified the Organization in December 1996 and January 1997 of its plans to move most of the accounting work being done in SF Seniority District 101 in Topeka to the BN in St. Paul, Minnesota. A total of 87 clerical accounting positicns in Topeka (out of 101) were abolished in February and March 1997. The affected employees were placed in other SF
Many of the employees in SF Seniority Districts 709 and 101 were displaced or dismissed as a result of the two transactions and are receiving New York Dock protective benefits. However, the Cattier denied benefu to 24 employees from Seniority District 709 and 2 employees from Seniority District lUl. 'When the parties were unable to reach agreement on the eligibility of these 26 employees for New York Dock protective benefits, the Organization invoked arbitration under Section 11 of the New York Dock conditions by letter of July 10, 1998
A hearing was held on January 28, 1999, at the offices of the National Mediation Board in Washington, DC. The parties exchanged preheating submissions on January, 14, 1999, including uuuic:uus prior arbitration awards Both paiziea were afforded full opportunity to present their arguments before the three-person arbitration committee.
"Are claimams entitled to a "dirplacemert al:owance" under the hew York Dock conditions, Article 1, Section °, even though each claimant displaced to a position, will: Jtc aui)e daily rate of pay as their former position, working conditions remained unchanged, and the quantum of work in the department, as measured by actual available overtime, increased subsequent to the transaction?"
1. Definition. - (a) "Tra=ction" means any action taken pursuant to autnorizations of' his Commission on which these provisions have been imposed.
(b) "Displaced employee" means an employee of the railroad who, as a result of a transaction, is placed in a worse position with reVect to his compensation and rules governing his working conditions.
5. Displacement allowances - (,r) So inrg after a displaced employee's displacement as he is curable, in the normal exercise of his seniority rights under existing agreements, rules, and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, he.ahaf, during his protection period. be paid a monthly displacement allowance equal to the difference between the monthly compensation received by him in the position in which he is retained and the average monthly compensation received by him, in Vie puaition from which he was displaced.
Each displaced employee's displacement allowance shall be determined by dividing separately by 12 the total compensation. received by the employee and the lutal lUlte fui which he was paid during the last 12 months in which he performed services immediately preceding the date of his displacement as a result of the transaction (thereby producing average monthly compensation and average monthly time paid for in the test period); and provided further that such allowance shall also be adjusted to rerlcet subsequent general
The parties agree that. the swV of field support work and customer service work in Seniority District 7C9 and the transfer of accounting work out of Seniority District 101 were transactions under :'less- Fork Dock. AV 26 claimants ir. this dispute were placed in jobs at the identical wage grades they held before the subject transactions. Prior to the trarsactioas, the 26 claimants had worked various amounts of overtime; subsequent to the transactions, they also worked various au:uutita of Vvcrtuttc.
The Carrier state, without refute from the Orgainization, that the amount of everime actually worked in the two seniority districts increased substantially in the year after the transactions. In Seciority District 709, overtime hours increased 24.9 percent from 1996 to 1997. In Seniority District 101. overtime increased 32.8 percent from 1996 to 1997
The :,6 claimants concluded that their incomes declined in at lcaat sortie of the months following the transactions. The TCU requested that the Carrier compute the test period averages (TPAs)-average monthly compensation and average monthly time paid for-for the 26 claimants The Carrier refused to compute the TPA& insisting that the 26 employees were not adversely affected by the transactions.
POSITIONS OF THE -PARTIESThe BNSF assorts that the claimants are not displaced employees under the :view York Dock conditions because they were not placed in a "worse position" as a result ef the transactions. Although the 26 claimants were affected by it ansactions, they were riot adversely affected, the BNSF insists. All 26 claimants were placed in jobs at the same wee &LLL_ and with the increase in overtime in their departments. they all maintained the same or greater potential for earnings:
The Carrier continues that a comparison of the avemoe monthly compensation during the test period:
the Carrier says that the clzimants' reduced earnings were due to factors u:uelated to the transactions. It notes that if the claimants did not work as much overtime after the transactions--despite the increased availability of overtime work- it was simply because many of them had not bothered to qualify for the overtime work on other positions that was available to them. According to the BV$F, qualifying would have been a simple matter, ax il was the mlue Lype Uf wuk tire claimants did on their regular jobs, but involved different commodit:es. Prior to the transactions, the claimants had taken the initiative to qualify for overtime work on other positions, and they are obligated to do so in their post-transaction positions in order to work the same number of hours they did before the transaaiors. r
The BNSF further contends that it has no obligation to compute TPAs for employees who are not adversely affected by a transaction. The BNSF claims that the
Organization has requested TPAs as a back-door approach to demonstrate t," at the claimants were in a"worse position.." The Carrier cites several arbitration awarus that have held that the TPA is a formula intended to calculate the amount of Xei~ York Dock protective benefits owed, not if such benefits are due. Tie Organisation has the burden of first proving that the claimants were adversely affected by the transactions; and, the Carrier maintains, it has failed to do so in this case.
According to the TCU, the Carrier initially denied New York Dock benefits to the claimants based solely on the grounds that they had been assigned to positions at the same wage grade and, therefore, we: a not placed in a "worse position" with respect to their compensation. Tie Carrier is custakenly interpreting tae term "compensation' as used in Section 5(a) of the New York Dock conditions to mean "rate of pay." T:x Organization submitted numerous arbitrarinn decisiorta supporting its argument that "compensation" under New York Dock means total earnings, including overtime, allowances, bonuses, and other elements of pay.,
Using their pay stubs for the 12 months prior to the transactions and the .months following the transactions, the claimants cnncltlded that they had suffered a loss of earnings as a result of the transactions. The loss of earnings was due to posttransaction overtime, an element of "compensation" under New York Dock Once there is a transaction and employees have identified facts which they believe demonstrate an adverse effect of the transaction, the burden shifts to the employer to prove that something other than the transaction was the cause, the Organization argues.
Moreover, it is not necessary that an employee's reduction in earnings uccur immediately after a transaction in order to be related to that transaction, the Organization adds.
Late in the sages of handling on the property, according to the TCU, the Carrier seized upon the issue of overtime to bulster its arfCUrlletll 11161 lie latti111uib werC (lot in a "worse position" as a result of the transaction, but rather as a result of their failure to work overtime. If the Carrier feels that individual employees are not firf511ing their obligations to make themselves available for sufficient overtime service to satisfy their average time paid for in the test period:
The relocation of the clerical functions invoived in this case was anticipated by the Carrier in its merger app:icatioit to the ICC, the TCU notes. The transfers of functions between the BN and SF seniority districts would have been prohibited by the collective bargaining agreements were it not for the ICC-approved merger, and labor protective conditions were imposed as a quid pro que. There cam be no dispute that there was a "transaction" as defined by New York Dock. and the emp:oyecs have identified facts (reduced earrings, as detertrtined from their pay stubs) that demonstrate that they are in a`worse position." Therefore, the Orgarization asserts, the Carrier is obligated to compute the TPAs for the :6 claimants
The initial issue that must be addressed-because it is central to the other issues raised-is the interpretation of the word "compensation" as it :s used in Sections 1 and 5 of the New York Dock conditions. Both parties have cited numerous arbitration awards on this issue, and the cited awards are contradictory. The decisions submitted by the Carrier hold that an employee moved, following a transaction, to a new position at the a= rate of pay is in no worse position with regard to his compensation-essentally equating -`rate of pay" or "hourly :ate" with "compensation." The decisions submitted by the Organization give a more expansive definition to the term "compensation," specifically stating that it includes over-time pay.
. We are inclined to adopt the more expansive definition. Clearly if the ICC had intended "hourly pay" or "rate of pay" to be the criterion for assessing an adverse impact on employees affected by a transaction, they would have used one of those phrases in drafting the New York Dock
conditions. By using "compensation," the ICC must have lad in mind elements in addition to straight hourly wages. The word "compensation' is bread enough to include shift differentials, allowances, overtime, and other elements cfpay. it addition to the contractually prov=ded hourly rate. Exceptions to the inclusion of all elements ofcompensation are very narrow'
1t is inure.vinv to note that the broader do~finitian of "compensation" could conceivably mean that an employee moved to a lower-rated job with a lower hourly rate of pay following a transaction may not be entitled to protective benefits :order hew York Dock Such an employee could receive allowances or a shift differential or sufficient overtime work to more than make up the deficit in hourly wages. Using the Carrier's defnkion. this employee would be in a "worse position" because his rate of pay would be lower. Using our definition, this employee would not be entitled to a displacement allowance.
With overtime payments included in their pre- and post-transaction "average monthly compensation," and with the evidence from their pay stubs that then earnings declined in close proximity to the trattmctivcrs, the claimants have established at least a reburtable presumption that they are displaced employees entitled to New York Deck protective benefits. .4t that point. the Carrier was obligated to compute the TPAs for compensation and hours paid, as requested by the Organization. It strikes us as cornmon sense to apply the prirctple Referee Bernstein articulated years ago in Docket No. 62 under the Washington job Protection Agreement: "In the normal and usual case, applyitfg the formzzla of Section 6(c) [which corresponds to Section 5 of NA-w York Dock] will
'Neutral John B. L&Rocco (TCUarrd Wissouri PacifrdUnront Pacifrc, March i, 1993) has indicated that one of the very narrow exceptions to compensation to be included in the TPA is ext anrdinary nvrrtime worked in anticipation of an imminent transaction. He added that the
show whether an employee is 'in a worse position with respect to compeusation."' the critical language is uncharged from the Washington.lab Protection Agreement.
The Carrier has argued that the claimants' reduction in monthly earnings is unrelated to the transaction The BNSF says the claimants' failure to qualify for the available overtime work and allej4cd refusals of overtime are responsible for the earnings deficits. The Carrier places strong emphasis on the fact that the amount of overtime actually worked in the affected seniority districts increased substantially after the transaction, and the employees had ample opportunity to earn compensation equal to their TPAs
The overtinx figures cited by die Cau is (and unrefuted by, the Organization) do suggest that overtime certainly did not diminish in the affected seniority districts. However, the figures alone do not show if this overtime was suitable for the 26 claimants' wage grades or if individual claimants had sufficient seniority to be awarded tie overtime As the Organization suggests, a case-by-case investigation for each claimant would be necessary to determine if they failed to meet their obligations to make themselves available for service.
Even if a closer iaspecuon reveals that there was sufficient overtime suitable for the claimants' wage grades and seniority, there is the issue of the claimants' failure to qualify for the particular overtime work available. The BNSF points out that the claimants had, on their own initiative, quabbed for overtime work on other positions prior to the transaction. and argues that they had an nhligminn to do so once again after the transaction. We do not agroc In the absCCncc of the transaction, the employees would have already been qualified for enough overtime to maintain their customary earnirp It was the transaction that put them in '.he "worse position" of no longer aeing qualified for an equivalent amount of overtime.
We also reject the Carrier's argument that fluctuations in earnings are normal and, therefore, ant occasional drop in earnings does not mean an employee a "displaced." We find that the New York Dock conditions require a monthly dcterrrination for the duration of the protective period as to whether an individual employee is in a "worse position" with respect to compensation, i.e., if his incnthly earnings are It*,) than his monthly average comvensction in :hc tcat pericd.
Therefore, the Carrier must compute the TPAs for each claimant This amount must include all overtime worked during the test period' and during :he protective period fit any month that a claimant's compensation falls below his -PA, the Carrier must pay a aispiacement allowance. The only exception that would allow a denial of the displacement allowance is if a claimant refuses to work overtime fgr which he is ;~/ifieri and consequently does not worx enough hours in the month to match his TPA for hours paid.
As a means to minimize the amount of protective benefits it must pay, the Carrier is entitled to require employees to qualify for the available overtime work-on the Carrier's time In the absence of such a requirement, however, the Carrier may not shift the burden onto the claimants if they do not work their TPA hours because there is insufficient nvartime fnr which they are already qualified.
`The Carrier objects specifically to including the overtime earned by Claimant ti snick when he workcd during his vacation period; insisting :hat this was an cxtraordinnry payment. In the absence of evidence that this overtime was due directly to an imminent transaction, we find that this payment must be included in his TPA. WA
The Carrier shall compute the TPAs for each claimant. The claimants are presumed to be displaced employees in any month in which their compensation falls below their TPA for compensation, assuming the claimants have made themselves available for service for their TPA hours. The Carrier shall pay a displacement allowance in each such month, unless the Carrier can prove that the monthly decline in earnings was due to factors other than the transaction.
~seph A. Sickles leutral Member
uDan Ko k
Carrier tuber