CwO 3

ARBITRATION COMMITTEE ESTABLISHED UNDER SECTION 4

UI1'TED TRANSPORTATION UNION (C.T.E.)





On September 10, 1979, the Illinois Central Gulf Railroad (hereinafter the Carrier) secured authority to abandon a portion of its line. The involved trackage extended 45.3 miles, from milepost 22.8 near Walnut Grove, Mississippi, to milepost 68.1 near Wells, Mississippi. In authorizing the abandonment, the Interstate Commerce Commission imposed the Oregon Short Line employee protection provisions, which are commonly referred to as Oregon III.

      By letter dated September 25, 1979, the Carrier advised the'

United Transportation union (hereinafter the Organization) of its
 intention to abandon the trackage. Such notification is required
 pursuant to Section 4 of Oregon III, in the event the involved
 transaction " ... may cause the dismissal or displacement of any
 employees, or rearrangement of forces .·. " T'.:e September 25, 1979
 letter stated that the Carrier expected no displacements as a result
 of the abandonment. Therefore, the advice contained in the letter
 eras offered without prejudice to the Carrier's position that neither
 notice nor an implementing agreement were required.

 Thereafter, the parties corresponded and met on various dates between October 1, 1979 and February 19, 1980. During that period the Organization took the position that it believed displacements would in fact occur, and that an implementing agreement was therefore required. By letter dated November 14, 1979, the Carrier indicated its willingness to enter into an agreement similar to ones entered into in connection with previous abandonments, but did not concede that such an agreement was necessary. That proffered agreement was not accepted by the Organization. Another Carrier letter dated January 22, 1980, described the operational chances which were expected to flow from the abandonment. Two through freicht assignments formerly operating between Louisville and Jackson via Union would thereafter operate between Louisville and Jackson via Newton. An existing local performing service between Newton and Union would thereafter also operate between Union and Walnut Grove. Finally, a witch engine operating out of Jackson would se.-rice Wells.

 The parties arrived at an interim understanding on March 6, 1920. It eras agreed that questions concerning the need for an implementing agreement and its contents would be arbitrated, and that any agreement
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          .. . . .. .. .,:. . ; . ..: . . page 2


_esulting therefrom trnuld apply restroactively to the date of the
 L,andonment. The abandonment would occur April 3, 1980, but the
 avo through freight assignments referred to above would not set out
 )r pick up cars between Jackson and Newton while the issue under
 consideration in this proceeding was being arbitrated. ,-.

 A hearing was held on July 3, 1980, in the Carrier's offices .n Chicago, Illinois, at which all members of the Arbitration Comiittee were present. The Organization and the Carrier presented letailed written submissions with supporting documentary exhibits, Lnd both parties were afforded the opportunity to orally argue their -espective positions.

 The Committee must first address the question of whether an .mplementing agreement is required. The Carrier has stated that dismissals, displacements or rearrangement of forces have occurred ~s a result of the abandonment. The Carrier also contends that the iregon III provisions are similar to, and derive in part from, the ;o-called Amtrak Appendix C-1 provisions. An award by Referee Xarold f. Weston is cited, which was rendered in a case involving the Brotheruood of Locomotive Engineers, the Burlington Northern, Amtrak, and the ilwaukee Railroad. In that award it was held that no implementing greement was required pursuant to Appendix C-1 when Milwaukee enineers operated Amtrak passenger trains over an eleven (11) mile por-
 ion of the Burlington Northern. The facts and circumstances refer- --
 nced in that award can be distinquished from those in the instant
 ase. We first note that Referee Weston concluded his decision by
 tatings
 "This conclusion is based on the specific facts
 of this case, including particularly the absence
 of bad faith on the part of the Carriers, the
 relatively small amount of trackage involved, the
 large volume of work available in the seniority
 district in question and the lack of proof that
          ' .any BN engineer actually sustained damage as the result of the transaction."


      The Carrier has presented no data which would persuade the Com-

ittee to invoke the principle of de minimus, i.e. no data which _
 emonstrates that the abandoned trackage is insignificant or trivial
 hen compared to the remaining trackage in the involved senior,'---,., cis
 rict. Of even greater weight is the Appendix C-1 language .;:.der~y
 ng Referee Weston's reference to the absence of proof that °;: engi
 eers had been adversely affected. The C-1 provisions reference
 ransactions "which will result in a dismissal. or displacement of
 mployees or rearrangement o-° forces", and he was able to conclude that
 ugh results had not and would not occur. By contrast, the appli
 able language in Oregon III references transactions "which :-av result
 n a dismissal or displacement of emnlovees or rearrangement o= forces."
 he fact that employees have not been affected by an abandonment dur
 ng a given period does not necessarily preclude t'-eir ''eing-affect='
 n the future. This is particularly true in the instance case, where
 here is uncertainty with respect to possible chan-,es in the Carrier's
 pe ration after this award is rendered, when setting out and picking
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    . .. page 3


up cars between Jackson and Newton is no longer prevented by the Harch 6, 1950 understanding. The Committee therefore concludes that an implementing agreement pursuant to Section 4 of Oregon III is required.

      While this Committee concurs in the Organization's position

that an implementing agreement is required, it also concurs in the
 Carrier's position that the scope of the agreement is limited. Sec
 tion 4 of Oregon-III .refers to " . . reaching agreement with respect
 to application of the terms and conditions of this appendix ... ".
 The levels of benefits have been established by the appendix. The
 implementing agreement properly deals with the means by which such
 levels are to be afforded, but may not raise or lower them unless
 the parties have so agreed. The Carrier has correctly pointed to
 Section 2 of Oregon III which preserves provisions of existing col
 lective bargaining agreements, Section 11 of Oregon III which pro
 vides the proper forum for the adjudication of disputes involving the
 interpretation, application or enforcement of Oregon III provisions
 (other than those contained in Sections 4 and 12),and Section 13 of
 the Merger Protective Agreement which provides the proper forum for
 the adjudication of disputes arising pursuant to that Agreement. All
 of these serve to circumscribe this Committee's authority.

      In Section (1) of its proposed agreement, the Organization seeks

the certification of all employees in the involved seniority districts
 as having been adversely affected as a result of the transaction, and
 as having therefore achieved protected status. Section 11 of Oregon
 III which was referred to above provides, in subsection (e), a pro
 cedure whereby it may be determined whether or not a given employee
 was "affected by a transaction." While the Committee is not insen
 sitive to the Organization's concern regarding the issue burden of
 proof, a matter explicitly addressed in Section 11 may not be resolved
 by recourse to a Committee established pursuant to Section 4.

 In Section 2 of its proposed agreement, the Organization proposes that no employee may be required to change his point of employment subseauent to the transaction. The Committee does not believe that this proposed restriction is permissible given Section 6 (d) of Oregon III, which states:

          "The dismissal allowance shall cease prior to ',

          the expiration of the protective period in the

          event of the employee's ... failure to return to

          service after being notified in accordance with .

          the working agreement ...".


Oregon III contemplates that a dismissed employee may be required to
 perform service at any location to which he may be recalled pursuant
 t·.: the applicable collective bargaining agreement. - --

 Section 3 of the Organization's proposed agreement concerns
 travel time and auto allo,_-ances. As ias previously stated, the Com-
 Mittee must rejeci: any provision -which seek to increase benefits above
 the level alreadv established. r
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Section 4 of the Organization's proposed agreement defines a "change in residence" as a move in excess of twenty-five (25) miles from the former work location. Adopting this definition might well lead to instances in which employees would be considered to have been required to chance their residence when they exercised seniority to a cork location nearer their residence than ·ras their former work location. This result can and should be avoided, and a definition of "change in residence" would facilitate the implementation of the Oregon III provisions. The Committee therefore adopts the following definition, which is contained in the agreement attached to this award:

          ^A change in residence is required when an employee is required to change the point of his employment as a result of the transaction by a distance greater than twenty-five miles, provided his new noint of employment is father from his residence than was his old point of employment."


The remaining sustantive provisions in the Organization's Section 4 exceed the benefit levels of Section 9 of Oregon III and thus will not be adopted by this Committee.

 Sections 5 and 6 of the organization's proposed agreement seek to modify and/or increase displacement allowance benefits. Section 5 of the Organization's proposal would nullify Section 5 (b) of Oregon III which provides that employees may be treated as occupying higher paying positions for which they failed to bid in accordance with their seniority. Section 6 would restrict the definition of a voluntary absence to a failure to perform service on one's regular assignment. Such a restriction is not appropriate since an employee's "average monthly compensation" may well include earnings accruing from a variety of assignments.

 Section 7 of the Organization's proposed agreement and Section 3 (d) of the Carrier's proposed agreement provide :or claim forms and the establishment of time limits. The Carrier seeks to adopt the time limits of the applicable schedule agreement. The Committee believes it is appropriate to retain provisions which have the virtue of having been negotiated by the parties; thus, the Carrier's Section 3 (d) with slight Modifications has been incorporated into the agree-
 ment attached to this award.;

 Section 8 of the oraanization's.procosed agreement and Sections 2 and 3 (a) of the Carrier's proposed agreement both depart from the literal provisions o= Sections 5 and 6 oz Oregon III regarding the computation of displace-.ent and dismissal allowances. The Organization desires to base the test period on the twelve months prior to the transaction rather than the twelve months prior to the date of dismissal or displacement as provided by Oreccn III. Pursuant to Oregon III, a month -ay only be included in the test period i° the employee performed service curing said 7Onth. The Organi,atien proposes to exclude any -onth =rpm the test period in which s,-mice was performed less than fifty (50) percent of the time, and further proposes to increase earnings =or months in which no earnings accrued for seven (7) consecutive days or more. The Carrier proposes computing dismissal
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and displacement allowances by dividing the test period compensation by thirteen (13), to produce a figure applicable to a four (4) week period rather than a month. This implementation on a four (4) week basis is readily accommodated by the Carrier's payroll system. The division by thirteen (13) in fact tends to enrich the employees, since there are slightly more than thirteen (13) four (4) week periods in a year. Ordinarily, the Committee would be willing to accept a provision such as that proposed by the Carrier, which affords employees adequate protection while substantially easing administrative burdens. However, the Organization's proposed Section 8 explicitly calls for a division of test period earnings by twelve (12). Since the parties are unable to agree, the attached agreement contains neither of the proposals discussed in this paragraph, and Sections 5 and 6 of Oregon III are to be implemented on the basis of their literal language.

 Section 9 of the Organization's proposed agreement and Section 4 of the Carrier's proposed agreement both address the question of election of benefits, a matter covered by Section 3 of Oregon III. jf-nile the Committee feels it redundant to restate the provisions o_` Section 3 in an implementing agreement, the attached agreement does cen~ain the Carrier's proposal that the election be made within thirty (30) days of dismissal or displacement.

 While the attached agreement contains certain provisions proposed by the Carrier, the Committee'has refrained -from including other provisions which merely restate the provisions ef Oregon III. If, however, the parties wish to incorporate other substantive terms from Oregon III in their implementing agreement, in the belief that such repetition of conditions will aid employees in their understanding of their rights, this Committee would approve such action.

        The attached implementing agreement constitutes the award of this

Committee. '. : .
 . RICHARD R. iCASH=
 Neutral Referee
 Bryn Mawr, Pennsylvania
 December 19, 1980
    =L10IS CENTRAL Pa IL ROAD and UNITED TRANSPORTATION L-4IION


IMPLEMENTING AGREEMENT

ENTERED INTO PURSDAN'r TO

SECTION 4 OF THE


    v.

                  OREGON SHORT LINE CONDITIONS


Section 1
      This agreement implements the protective conditions' provided for employees who are displaced or dismissed as a result of the abandonment of that portion of the Pearl River District between Wells and Walnut Grove, Mississippi as provided for in ICC Docket No. AB-43 (Sub-No. 52F) dated September 10, 1979.


Section 2 ,
      An employee who believes.that he has been displaced or dismissed, and who files a written request with the Superintendent, will be furnished a written statement of the test period earnings used to develop his displacement or dismissal allowance.


Section 3 _
      A displaced or dismissed employee shall use the claim form provided by the Carrier to claim the benefits to which he may be entitled.


Section 4
      The time limit rule of the applicable schedule agreement shall apply-to claims for protective benefits.


Section 5
      A change in residence is required when an employee is required to change the point of his employment as a result of the transaction by a distance greater than twenty-five (25) miles, provided his new point of employment is farther from his residence than was his old point of employment.


Section 6
      An employee entitled to elect between the benefits provided under this agreement and benefits provided under another agreement shall make such election within thirty (30) days after the date he is displaced or dismissed.