The employees who are the subject of this dispute are represented by the Brotherhood of Maintenance of Way Employes (hereinafter the "Organization" or the "BMWE") for the purpose of collective bargaining with the Union Pacific Railroad Company (hereinafter the "Carrier").
It is undisputed that the employees are "displaced employees" as that term is defined in the Oregon Short Line Conditions (Oregon Short Line R. Co. - Abandonment - Goshen, 360 I.C.C. 91 (1971)), hereinafter the "OSL Conditions." The OSL Conditions were imposed by the Interstate Commerce Commission (hereinafter the "Commission" or the "ICC") in Finance Docket No. 30800, et al, when it approved trackage abandonment applications which had been filed by the Carrier, including abandonment of almost all of the rail lines on the Kansas, Oklahoma and Gulf Railroad (hereinafter the "KO&G").
Section 1(b) of the OSL Conditions defines a "displaced employee" to be as follows:
Thereafter, on September 19, 1991, the Carrier's ManagerProtection Administration sent the following letter to the employees:
On October 31, 1991, General Chairman L. W. Borden of the BMWE wrote the Carrier's Assistant Director-Labor Relations, Mr. R. D. Rock, as follows:
When positions on the Texas District Tie Gang were abolished effective November 6, 1991, the Carrier resumed payment of the job protection allowances for the displaced employees of the KO&G. Thus, the issue in dispute involves a claim for protection payments for the period September 16, 1991 to November 6, 1991, as well as the question of whether the Carrier has the right to suspend protection payments for KO&G employees who decline to work off their home seniority district, or, principally, on the Texas District Tie Gang.
When the parties determined that they were not able to mutually resolve the dispute, it was agreed to place it to this Board pursuant to the dispute procedures set forth in the oSL Conditions. In addition to presenting ex parts submissions, the parties offered extensive oral argument at the Board's hearing and, at the request of the Board, communicated additional information as related to certain arguments which had been made to the Board.
The Carrier maintains that the employees have seniority rights in both the KO&G Seniority District and the Texas District Tie Gang and that the employees are thereby obliged to exercise all such seniority to available or vacant positions so as to be eligible for protective benefits as displaced employees in application of the OSL Conditions.
Thus, it is the position of the Carrier that the issue goes to the obligation of the employees pursuant to Section 5(b) of the OSL Conditions, supra, to exercise seniority rights to positions which produce compensation equal to or exceeding the compensation which had been received in the positions from which they had been displaced, and not requiring a change in residence, or be treated for the purposes of job protective compensation as occupying such positions.
The Carrier contends that the change of residence restriction set forth in Section 5(b) of the OSL Conditions, supra, should not be viewed as an issue in this particular dispute. It says it draws this conclusion from the fact that the March 19, 1981 Agreement prescribes that employees on tie gangs be paid a travel allowance for going from their homes to the tie gang work sites.
The Carrier says that the overall intent of the March 19, 1981 District Tie Gang Agreement was to give employees on the preexisting seniority districts, including, as here, employees on the KO&G Seniority District, seniority rights on the tie gangs. At the same time, the Carrier says, this new seniority was reinforced by an obligation on the part of the employees to work on the tie gangs pursuant to the force assignment provisions of above mentioned Rule 11(b) of the basic Agreement.
The Carrier does not deny the contention that the force assignment provisions of Rule 11(b) have not heretofore been applied to RO&G employees. However, the Carrier says the reason Rule 11(b) had not previously been applied to KO&G employees was that the Assignment Clerks in the Gang Movement Bureau "simply never thought of using KOG employees when there were unfilled vacancies on the District Tie Gang," and, further, that "the clerk who handles assignments for the District Tie Gang does not handle assignments for the KOG, and therefore, the KOG employes simply escaped her notice."
The foregoing comments of the Carrier with respect to Rule 11(b) notwithstanding, the Carrier submits that in the instant case when it determined that there were vacancies on the Texas District Tie Gang that the KO&G employees were properly sent letters on August 27, 1991 "advising them to bid openings on the Texas District Tie Gang." Thus the Carrier maintains that when it found the employees had declined to bid for the Texas District Tie Gang vacancies that it properly provided for the suspension
of their protective allowance benefits for that period of time that the employees failed to exercise seniority to the Texas District Tie Gang.
The Carrier also asserts that it has been a practice for RO&G employees to work on various gangs off the KO&G, offering that only nine of the 18 protected KO&G employees have "refused to utilize their existing seniority rights to obtain jobs beyond the geographic limits of the KO&G."
In regard to application of Section 5(b) of the OSL Conditions to the dispute, the Carrier directs particular attention to that language which relates to the failure of displaced employees to exercise seniority rights to secure positions to which they are "entitled" under the working agreement. It submits there is no question that employees on the KO&G have a right to positions on the Texas District Tie Gang. Therefore, the Carrier says, even assuming, arguendo, that a question exists as to the manner in which a seniority right is utilized with respect to positions on the Tie Gang that the bottom line is that the employees may be properly treated as entitled to such positions in application of the OSL Conditions.
The Carrier submits that awards of past boards of arbitration support the principle that employees must exhaust seniority to the fullest throughout the seniority district or districts in which they hold such rights in order to remain eligible for a displacement allowance.
The Carrier therefore asks that the question at issue be answered in the affirmative and that for purposes of computing protection payments that employees be treated as occupying the positions which they elect to decline.
The Organization contends that the Carrier did not have the right to remove the employees from protection pay. It says that the carrier has wrongfully concluded that these KO&G employees have seniority on the former Missouri Pacific, or, as the Carrier has offered, seniority on the Texas District Tie Gang.
The organization submits that seniority on a tie gang is only attained after an employee has bid for and been assigned by bulletin to a position on a tie gang, i.e., the date the employee first takes a position on a tie gang. Thus, the organization maintains that absent such action on the part of the employees that the Carrier is abusing its discretion by trying to force the employees to the tie gang positions, or positions outside their home Seniority District.
In this same connection, the organization contends the reason the employees were not force assigned to positions on the tie gang is because the Carrier had apparently recognized that the employees had never in fact established seniority on the tie gang, thereby negating any application of Rule il(b).
Furthermore, the Organization argues that if the employees did in fact have seniority on the Texas District Tie Gang that the Carrier would have been obliged to have recalled them to service under Rule 23 (b) of the basic Agreement, supra, but that it did not do so.
Additionally, the organization argues that Section 5(b) of the OSL Conditions does not require employees to attain seniority rights to positions beyond the seniority district in which they had held seniority at the time they were adversely affected.
The Organization also says that even assuming, arguendo, it was to be held that the employees have seniority on the Texas District Tie Gang that the exercise of any such seniority would essentially require the employees to be subject to a change in residence, or a condition in application of Section 5(b) of the OSL Conditions which would preclude the Carrier from using the positions on the tie gang as offsets against a protection allowance. In this same regard, the organization asserts that the Carrier has never moved employees from the KO&G Seniority District to other parts of the former Missouri Pacific Railroad or to other parts of the merged system, much less 1,000 miles so as to work on the Texas District Tie Gang.
Lastly, the Organization argues that because some KO&G employees may have voluntarily taken jobs elsewhere or elected to establish seniority on the Texas Tie Gang does not serve to overcome the fact that those employees who elected not to do so have a right to confine or restrict an exercise of their seniority to the KO&G Seniority District for the duration of their protective period.
The Organization, as with the Carrier, cites decisions of past boards of arbitration as being in support of its contentions.
The Organization asks that the question at issue be answered in the negative and that the Hoard find that the employees are entitled to protection allowances during the period the Carrier disallowed their protection pay starting from September 16, 1991 through November 16, 1991 at the rate of not less than their test period average.
The OSL Conditions, in Sections 5(a) and 5(b), clearly prescribe that in order to be entitled to benefit of a monthly displacement
allowance that a protected employee is required "in the normal exercise of seniority rights" under existing collective bargaining agreements to obtain a position producing compensation equal to or exceeding the compensation received in the position from which displaced and which does not require a change of residence. This referenced exercise of seniority includes, in the Board's view, all contractual seniority rights not requiring a change of residence.
In regard to interpretation or application of the phrase, "in the normal exercise of seniority rights," this Board is persuaded, as was the arbitration board in a dispute which involved this same Organization and the C&NW Railroad (Referee Richard R. Kasher), that we must look to the manner in which seniority is generally or normally exercised in the railroad industry. In its findings and award the BMWE-C&NW OSL Conditions arbitration board held as follows:
In this same connection, it is noted that many past arbitration boards in resolving disputes concerning an entitlement to protective allowances have held that employees are required to exercise seniority rights under existing agreements, rules and practices to positions which may be in: 1) another seniority district; 2) covered by a different schedule agreement; and, 3) a different craft.
Here, the collectively bargained agreement rules in effect at the time the ICC imposed the OSL Conditions, and when the employees came to be adversely affected, included the March 19, 1981 District Tie Gang Agreement, supra. This Agreement permitted and currently permits employees on the regular district rosters, including, as in this dispute, employes holding seniority on the KO&G Seniority District, the opportunity to attain and accumulate seniority on a district tie gang roster separate and apart from their home district seniority. Article 2, supra, provides that employees who are the "successful applicants" for positions will establish seniority as of the date of assignment to the district tie gang.
This March 19, 1981 Agreement also prescribed, in Article 3, that if at the time the tie gangs were established a sufficient number of employees from the regular seniority districts failed to bid
for the district tie gang positions bulletined at that time, then newly employed persons would be assigned to such positions. This same Article 3 provided that the newly hired employees would be given a seniority date on the district tie gang roster on the day their pay started, and, further, stipulated that they would be placed on a regular district seniority roster of their choice.
Although Articles 2 and 3 of the March 19, 1981 Agreement cover the establishment of district tie gang seniority rosters, nothing in those articles or elsewhere in the Agreement required, or currently requires, employees holding seniority on the regular district rosters to attain seniority on, a district tie gang roster on other than a voluntary basis. This manner in which employees may attain a seniority standing on a district tie gang roster notwithstanding, the Board recognizes, as will hereinafter be discussed, that Article 4 of the Agreement, supra, does however make provision for employees on the regular district seniority rosters to be force assigned to cover positions on the district tie gangs.
In regard to the bulletining and filling of new positions and vacancies on a district tie gang, Article 4 of the March 19, 1981 Agreement first prescribes that the following actions be taken by the Carrier:
Article 4, as more specifically relates to the circumstances of the case here before the Board and thus application to the OSI. Conditions, further prescribes that if, after positions have been advertised to employees who do in fact hold seniority on the district tie gang roster and to employees on the regular seniority rosters, a position or positions remains open, that such position or positions may then be filled by force assignment. In this
That a question may exist as to why employees from the KO&G were not force assigned to Texas District Tie Gang positions in the past does not, in the opinion of the Board, constitute reason to conclude that they are not in fact subject to Rule 11(b) in application of the March 19, 1981 Agreement. Certainly, those options which existed relative to the 'exercise of seniority before imposition of the OSL Conditions must be viewed in light of the protected employees being entitled to benefit of a protective allowance and thereby the conditions related to eligibility for a monthly displacement allowance.
Prior to being determined protected employees under the OSL Conditions employees may have elected, for example, not to exercise a contractual right to positions account a number of reasons. In doing so, they may have sustained a loss of work opportunities or compensation. For the most part, decisions of this nature had little or no financial impact upon the Carrier. The Carrier was not obligated to compensate those employees who elected not to exercise their seniority. That is not the circumstance under the OSL Conditions.
While the OSL Conditions protect covered employees against lost work opportunities, or reduced and lost compensation as a result of the implementation of an ICC authorized transaction, they do so only to the extent that employees exercise seniority to the fullest under existing working agreements which do not require a change in a place of residence. In other words, that privilege which an employee may have to determine when and to what positions they would exercise seniority does not exist in application of the OSL Conditions. That is, unless the protected employee is willing to forego the benefit of their protective allowance and be treated for the purposes of Section 4(b) of the OSL Conditions as occupying the position they elect to decline.
As indicated above, the March 19, 1981 District Tie Gang Agreement specifically provides that employees may be force assigned to district tie gang positions pursuant to Rule 11(b) of the Basic Agreement. This provision, as the Board understands it from hearings in this case, was necessary to assure that there would be sufficient employees to fill the district tie gang positions. The force assignment of employees is accomplished in an inverse order of seniority when more senior employees fail to bid for a position.
In any event, it would seem to the Board that before employees of a regular seniority district within the confines of the territory of the district tie gang are subject to farce assignment that the Carrier must first provide for the force assignment of employees who do in fact hold seniority on the district tie gang roster on which the vacancy exists. Therefore, the RO&G employees involved in this dispute would be subject to force assignment only after all employees currently on the Texas District Tie Gang roster had been forced assigned, and then, only force assigned if they were the most junior of all employees among the separate or individual seniority rosters which fall within the geographical confines of the Texas District Tie Gang.
In regard to the question as to whether work on a district tie gang may be properly viewed as requiring a change of residence. There is no question that some work on the Texas District Tie Gang will require employees of the KO&G Seniority District to work a considerable distance from their home terminal seniority district or place of residence. The fact remains, however, that when the March 19, 1981 Agreement was negotiated that the parties did not view such a circumstance as requiring an employee to make a change of residence. The parties instead agreed to recognize the performance of work on a district tie gang as being of a temporary or limited nature, and agreed that employees covering assignments on the district tie gangs be paid a travel allowance. Therefore, that some employees may view any necessary travel to cover a district tie gang position as a hardship is not a matter which this Board may treat as overcoming the intent of the March 19, 1981 Agreement that work on a district tie gang entitled employees to a travel allowance as opposed to a a change of residence or relocation allowance.
Turning now to the period during which the employees had their protective allowances suspended. It does not appear that in seeking to have the employees take action to either voluntarily attain seniority rights on the Texas District Tie Gang or in being subject to force assignment pursuant to the March 19, 1981 District Tie Gang Agreement, that the Carrier had first provided for the recall of the employees from furlough pursuant to Rule 23(b), supra, of the Basic Agreement.
Furthermore, the Carrier has not shown that the vacancies which it purported to exist on the Texas District Tie Gang remained to be filled after it it had exhausted the procedures of the March 19, 1981 Agreement as relates to the first use of those employees on the Texas District Tie Gang seniority roster who already hold seniority on such a roster. Certainly, those employees who are currently on the Texas District Tie Gang roster have a right and responsibility to cover positions and vacancies over employees who do not in fact have a seniority standing on such a roster but are otherwise subject to force assignment to open positions in the application of the provisions of the March 19, 1981 District Tie Gang Agreement.
The Question at Issue is disposed of as set forth in the above Findings and opinion of the Board. The carrier did not have the right to suspend protection payments for KO&G employees during the period September 16, 1991 to November 6, 1991 for the reasons stated above. However, the Carrier may suspend such protection allowances for employees declining to work on the Texas District Tie Gang should the declination of such work follow the Carrier having exhausted the procedures set -forth in the March 19, 1981 District Tie Gang Agreement, and as considered or interpreted in the Findings and Opinion of the Board, with respect to the use of employees who currently hold seniority on the Texas District Tie Gang.
Robert E. Peterson, Chairman
and Neutral Member