BEFORE AN
ARBITRATION COMMITTEE ESTABLISHED
UNDER ARTICLE I, SECTION 11-OF THE
NEW YORK DOCK-EMPLOYEE PRO CONDITIONS
PARTIES TRANSPORTATION - COMMUNICATIONS
INTERNATIONAL UNION
AND
DISPUTE UNION PACIFIC RAILROAD COMPANY )
ORG NIZATION' QITFCTIONS AT
S TF:
AWARD NO. ASD 2
CASE NO. ASD 2
Did the Carrier violate Article I - Election of Benefits of NYD-217
when it refused to provide Mr. P. J. Morrison his test period average
as a result of a transaction that occurred on or about February 3,
1997?
If the answer to Question 1 is in the affirmative, shall the Carrier
now be required to furnish Mr. Morrison with his test period average
and to pay him a displacement and/or dismissal allowance begimung
February 3, 1997 and continuing for the duration of his protective
period?
CARRIER'S QUESTIONS AT S;
2.
Was the Claimant, Mr. P. J. Morrison, a'displaced employee'
subject to a test period average as requested based on an alleged
transaction occurring on February 3, 1997?
Was the merger of the UP and SP a transaction which was the
proximate cause of an affect on the Claimant which triggers the
application of NYDC protection?
HISTORY OF DISPUTF-
By Decision served August 12, 1996 in Finance Docket No. 32760 the Surface
Transportation Board (STB) approved the merger of the Union Pacific Corporation and
its subsidiaries (UP) with Southern Pacific Rail Corporation and its subsidiaries (SP) and
control of UP over SP. The authority granted was made subject to the labor protective
conditions set forth in New York Dock Rye. - Control - Brookhrn Eastern
District
J=jng
360 ICC 60 (1979x New York Dock Conditions). Pursuant to Article 1,
Section 4 of the New York Dock Conditions the Carrier served notice upon the
Organization of its intention to rearrange and consolidate the clerical forces of UP and SP
pursuant to the STB's order. Further pursuant to Article I, Section 4 the parties
negotiated an implementing agreement effective December 18, 1996 (NYD-217)
applicable to the rearrangement and consolidation of clerical forces which was the subject
of the Carrier's notice.
On June 2, 1997 the Organization filed a claim with the Carrier for a test period
average (TPA) alleging that Claimant had been affected in a chain of displacements. The
Carrier denied the claim. The Organization appealed the denial. However, the dispute
was not resolved.
Eventually, the Organization invoked the arbitration procedures of Article IV of
NYD.217. This Board heard the dispute in Washington, DC on October 29, 1998. The
parties made written submission and presented oral argument to the Board. The parties
-3agreed to extend the time provided in Article IV within which the Arbitrator must render
a decision in this case.
FINDINGS:
The Board finds that the parties have complied with all procedural requirements to
bring the questions in this case and the underlying dispute before this Board for
adjudication. The Board also finds it has jurisdiction to decide the questions and the
dispute. The Board further fords that all parties to the case were given due notice of the
hearing before the Board
At all times material to the dispute in this case Claimant held the position of Clerk/
Steno at the SP Locomotive Plant in Denver, Colorado. Claimant currently holds that
position.
On October 1, 1995, approximately one year before the UP/SP merger, the Chief
Clerk at the same location was moved to the SP's Lincoln Street building in Denver
where she performed secretarial duties for various SP Mechanical Department officials
located in that building. The Chief Clerk's position at the SP Locomotive Plant was not
abolished, bulletined or filled.
However, after October 1, 1995 Claimant performed not only the duties of his
assigned position but also those of the departed Chief Clerk for which he was
compensated at the Chief Clerk's rate of pay. Additionally, Claimant began to work
substantial overtime due to the necessity to perform the duties of his own position and
those of the Chief Clerk.
As a result of the UP/SP merger the positions of the SP Mechanical Department
officials at the Lincoln Street building were transferred elsewhere on the merged system.
The secretarial duties of the Chief Clerk were eliminated at that location.
On or about February 3, 1997 the Chief Clerk was transferred back to the SP
Locomotive plant in Denver where she resumed all duties as Chief Clerk. As a result;
Claimant ceased performing the Chief Clerk's duties and ceased receiving the rate of the
Chief Clerk's position. Additionally, Claimant no longer performed overtime.
The Organization's position in this case is that the Carrier is obligated to provide
Claimant with his TPA and pay him a displacement allowance as provided in the New
York Dock Conditions because he was directly affected by a transaction that occurred
solely as a result of tile UP/SP merger. As such, the Organization urges, he is entitled to
an election of benefits in accordance with Article I of the NYD-217 agreement as well as
Article I, Section 2 of the New York Dock Conditions.
Specifically, the Organization maintains that as a result of the UP/SP merger the
Mechanical Department officials were relocated from the SP's Lincoln Street building in
Denver to points elsewhere on the merged system. Consequently, the Chief Clerk who
had performed secretarial services for those offcials no longer had work at that location.
She went back to the SP Locomotive Plant and resumed her duties as Chief Clerk at that
location. Thereafter, Claimant no longer performed the Chief Clerk's work and thus no
longer received the higher rate of pay of that position. Moreover, Claimant no longer
worked the overtime previously required because he performed the duties of his position
and those of the Chief Clerk who had relocated to the Lincoln Street building.
The Carrier maintains that Claimant is not a displaced employee within the
meaning of the New York Dock Conditions because he was never displaced from his
Clerk/Steno position at the SP Locomotive Plant. The Organization, urges the Carrier,
has failed in its burden of proof in this case to show a causal nexus between a transaction,
in this case the UP/SP merger, and the diminution in Claimant's income after the Chief
Clerk returned to the SP Locomotive Plant. Nor, the Carrier points out, has the Chief
Clerk claimed to be a displaced employee under New York Dock which forces the
conclusion that Claimant does not occupy such status. Finally, the Carrier argues, even if
it is determined that Claimant is a displaced employee, there is no proof that the overtime
he lost after the Chief Clerk's return to the SP Locomotive Plant qualifies for inclusion in
his TPA.
Article I of NYD-217 provides in pertinent part that the New York Dock
Conditions are incorporated and made a part of the agreement and are applicable to the
transaction in this case, it..
".
. . the general rearrangement and selection of forces in
connection with the consolidation and rearrangement of functions throughout the UP and
the SP . . . ." which was undertaken to effectuate the merger of UP and SP properties.
Article I, Section 1(b) of the New York Dock Conditions defines a displaced employee as
". . . an employee of the railroad who, as a result of a transaction is placed in a worse
position with respect to his compensation and rules governing his working conditions."
Such employee is entitled to a displacement allowance calculated in accordance with
Article 1, Section 5. Article I, Section 11 (e) of the conditions provides:
In the event of any dispute as to whether or not a particular
employee was affected by a transaction, it shall be his obligation to identify
the transaction and specify the pertinent facts of that transaction relied
upon. It shall then be the railroad's burden to prove that factors other than
a transaction affected the employee.
We believe the Organization has the stronger position in this dispute.
The fact that Claimant was not displaced from his Clerk/Steno position is
irrelevant. The language of Article I, Section 1(b) of the New York Dock Conditions
does not mean literally that an employee must be displaced from a position as a threshold
condition to meeting the definition of a displaced employee. All that is required in order
to meet the definition is that an employee experience a diminution of income or adverse
working conditions as a result of a transaction. As so well put by an Article I, Section 11
Arbitration Committee in TCU and Norfolk Southern roro. Apr. 19, 1989 (Roukis,
Neutral Member) the word "position" in Section 1(b) ". . . connotes status, situation or
posture rather than a specific job or assignment."
Nor can we agree that the Organization has failed to meet its burden of proof in
this case.
As the Carrier recognized in its written submission "[T]he issue in this case is
whether the Claimant . . . was an employee who was affected by the Union
Pacific/Southern Pacific merger." NYD-217 and the notice under Article I, Section 4 of
the New York Dock Conditions which lead to that agreement specify that the
rearrangement of clerical forces throughout the merged system, which was the subject
matter of the notice and the agreement, was a transaction undertaken to effectuate the
merger. The Organization maintains, without serious challenge from the Carrier, that the
relocation of the Mechanical Department officials for whom the Chief Clerk performed
secretarial services at the Lincoln Street building was part of the rearrangement of forces.
The conclusion is inescapable that such removal was part of the transaction in this case.
As a result the Chief Clerk no longer had secretarial duties to perform at the Lincoln
Street building which caused her return to the SP Locomotive Plant which in turn caused
Claimant to cease performing the Chief Clerk's work and receiving the higher rate of pay
for that work as well as to lose the overtime Claimant had been working as a result of
performing the functions of two positions.
On the basis of the foregoing we believe the Organization has established a causal
nexus between the transaction and the diminution in compensation suffered by Claimant.
It follows that Claimant meets the definition of a displaced employee under Article I,
Section 1(b) of the New York Dock Conditions. It also follows that Claimant is eligible
for a displacement allowance under Article I, Section 5 of the New York Dock
Conditions. It follows further that Claimant is entitled to a TPA provided in Article 1,
Section 5 to determine whether Claimant is due a displacement allowance.
We also cannot agree with the Carrier's position that the overtime Claimant
worked for the period the Chief Clerk was at the Lincoln Street building and which he
lost upon her return to the SP Locomotive Plant is not properly part of the TPA. The rule
is that overtime which is regular, recurring or casual, but which is not generated by the
transaction itself, is to be included in an employee's TPA calculated under Article I,
Section 5. In this case the overtime was generated by the fact that the Chief Clerk left the
SP Locomotive Plant to perform secretarial services for Mechanical Department officials
located at the Lincoln Street building. That move was not as a result of the transaction.
Accordingly, the overtime Claimant was required to work because he subsequently
performed not only his duties but those of the Chief Clerk properly is includable in his
TPA to be calculated under Article I, Section 5.
AWARD
All Questions at Issue are answered in the affirmative.
William
E. Fred~efberger, Jr.
Chairman and Neutral Member
Carrier Member
DATED:
Mmw,
I
? 9 J
R.
F. Dais
Employee Member