avra -* g

A MATTER BEFORE THE ARBITRATION COMMITTEE
 ESTABLISHED UNDER SECTION 11 OF THE LABOR
 PROTECTIVE CONDITIONS OF OREGON SNORT LINE
 RAILROAD AND THE UNION PACIFIC RAILROAD COMPANY -
 30 ABANDONMENT IN ICC DOCKET N0. AB-36 (SUB. N0. 2)
 a
 o


0
 L
 C&NWT File No: 79-83-2
 VS.
o Claim for Protective Allowance. by
 ... CHICAGO AND NORTH WESTERN Douglas Prentice, Claimat
 TRANSPORTATION COMPANY Claim Denied

 b
 C



w v
 N
 Fred Blackwell, Chairman/Neutral
 _ b W. B. Harwell, Jr., Brotherhood Member
 ,° G B. E. Simon, Carrier Member
 N
 N 7
 y~ L
 o s°'. STATEMENT OF CI ',IM
 w
 .o m
 i ~w Claim of the General Committee Brotherhood of Railroad
 p CO
 Signalmen, on the Chicago fi North Western Transportation Company,
 that:

 v

(a) Carrier is in violation of the Oregon Short Line
 w w E ca III Protective Agreement, as it has failed to compensate Mir. Doug


b v v ~ w his protective rate as required by the Oregon Short Lire III
 Agreement. (Note: "Oregon Short Line III" refers to jn int~-
 state Commerce Commission Decision eff,:ctive February 9, 197° ~n
 ~ ~, ;, ,°', ~' titled Oregon Short Line Railroad and the Union Pacific :.ailroad
 " v v°',_.; Company - Abandonment portion Goshen branch between Girth and
 U U 0) `4
 0-'q M4 Ammon, in Bingham and Bonneville Counties, Idaho.)
 >, cn m z
 a~ o
 u <x n° w ~ OPINION

 N

:EDBLACKWEIL This case arises under the '`re-on Short Line Protective
 TTORNEY AT LAW
 197:9 ROMAN WAY
 GAITHERSBURG.
 MARYLAND 20879
 (3o1) 9n.5ooo
 -1-
                              ~ i


Conditions granted by the ICC in Docket No. AB-36 (Sub. No. 2),
 360 ICC 91 (1979), which were applied to the Carrier's abandonment

 of trackage between Mile Post 1$7.9 near Eland, Wisconsin, and
                          f,

                                                      I


I Mile Post 256.0 near Rhinelander ; Wisconsin, ICC Docket No. AB-1

s

            (Sub. No. 136).


            The parties established the herein Arbitration Committee under Section 11 of the Oregon Short Line III Agreement, and

          Il framed the herein issue re-erred to in the Statement of Claim.


                    A hearing on said issue was held at the Office of the


                                                                  'Carrier, Chicago, Illinois, on June 12, 1984, at which both pare ties presented written submissions and oral argument on the case i

                                                                  Ilto the Arbitration Committee. Accordingly, the matter is properly,,

            ~Ibefore this Committee for determination under the aforecited protective conditions. '


                            ' II. FACTS;

            There is little or no dispute about the facts of this case.


                    Claimant Douglas Prentice, with a hire date of 7,nua_-y


            I 2, 1980, was the incumbent of a Signal i:,?intainer position at

            I

            ~V'arrens, Wisconsin, immediately prior to the Carrier's August 1982~

            abandonment of about sixty-eight (68) miles of track bet~::een Eland;

            and Rhinelander, Wisconsin. In connection with this track aban;3on-

            ment, which was subject to Oregon Short Line Railroad -


ATTORNEY AT LAW Abandon-
 FREDBIACKwELL ment - Goshen Branch, ICC Docket No. AB-36n the Carrier abolished

 79129 ROMAN WAY
 GAITHERSBURG.
 MARYLAND 70879,

    )001) 977.5000

                                      -2-

          a Signal Maintainer position at Rhinelander, Wisconsin, which was


          held by Mr. J. Lapcinski. Mr, Lapcinski exercised his seniority

          I to displace Mr. Foreman, the incumbent of a Signal Maintainer position at Eau Claire, Wisconsin. Mr. Foreman, in turn, displaced Claimant Prentice from his Signal Maintainer position at Warrens, Wisconsin.


          Claimant Prentice then exercised seniority to take a position at Proviso Yard in the Chicago area. He was afforded moving expense under Section 9 of Oregon Short Line iII `or his move from Warrens to Chicago; and he worked this new o;ition at Proviso from August thru December 1982 without any wage loss 'as compared to his former position at War-ens.

            In late 1982, as a result o_` a decline in cusi;:~>s, the Carrier abolished fifty-nine (59) jobs in the Signal Dep.-1rt:~.eca. Claimant Prentice was' among the junior Signalmen work-in,, at time and he was not able to place himself on a retainer pcsitiJn. Thus, he was furloughed effective January 1, 1983.


                    Claimant Prentice made claim for a protective a1'~,:.::.,_~


          under the Oregon Short Line Protective Conditions and such ·-~::i:r. I has been denied. The matter has been 'Lscussed but not Iby the parties, and this case resulted.


                          III. POSITION OF THE PARTIES


                    The position of the Organiza'.ion is that tIhe Claimant's


'ED BLACKWELL _

 TTORNEY AT LAW

19129 ROMAN WAY

GAITHERSBURG.

MARYLAND 20879

(301j 9775000

          initial displacement from his Signal Maintainer position at War

          rens, Wisconsin, due to the rail abandonment in August 1982, ten

          dered him a "displaced employee" and thereby entitled him to a prod

          tective allowance under Section 5 of the Oregon Short Line pro

          tective provisions (displacement allowances); that once this en

          titlement came into existence, such entitlement could be ended

          under Section 5 only by the Claimant's resignation, death, retire

          went, or dismissal for just cause; and that his dismissal in Jan

          uary 1983 served to modify his status as a "displaced c::~.1cyee" j

                                                                  I


          to that of a "dismissed employee", thereby entitling h~.:~ -o the

          i monthly protective allowance provided in Section 6 of W.e Oregon Short Line III (dismissal allowances).


          I The position of the Carrier _:.at its denial of r'.^.- claim

          ~~for a protective allowance is proper b:_.ause the Claimant's furlough in January 1983'was the result of declining economic ccndi-

          ~itions, and not the result of the track atvrnc'_er=ent. In ~':~.=se circumstances the Carrier asserts that the ~;is~:..ant does not come within the definitions in the protectiwconditions re~r~.__~i:y, the terms "displaced employee" and "dig:-_~ed employee" =nc? con-


          Isequently, he is not entitled to the cl.::ccd allowance due to `:e-

          Il ing a displaced and/or dismissed employ -_2.


                    IV. PERTINENT PROVISIONS Fn_C': (_IPE-rOll' SHORT


                          LINE III PROTECTIVE Cc-:)?- IO;IS


DBLACKWELL The provisions from re Ore= ~;,.~-t Line III Protective
 i ORNEY AT LAW - `

 179 ROMAN WAY Conditions which govern this dispute, .: Follow:

 :41THERSBURG,
 ' ARYlANO 20979
 (301/ 977-5000
                                      -4-

                  "1. Definitions - (a) 'Transaction' moans any action ta'ren pursuant to authorizations of this Cor<mission on which these provisions have bean imposed.

                  (b) 'Displaced employee' means 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 woi:kingconditions.

                      (c) 'Dismissed employee' means an employee of the railroad j

                  who, as a result of a transaction is deprived of employmmt with

                  the railroad because of the abolition of his position or the loss

                  thereof as the result of the exercise of seniority rights by an I

                  i, employee whose position is abolished as a result of a transaction.

                  (d) 'Protective period' means the period of titre d~ua:g :,hick a displaced or dismissed eirrroloyee is to be provided pr~t_~_'_on h=re--, under and extends from the date an which an employee iJ ::i~, leced or dismissed to the expiration of 6 years tlaerefran, --,:~idcd, i;.~· ever, that the protective period for any particular ~-~=oyee =_lia11 not continue for a longer period _ilo'aing the ante :._ -:as ws placed or dismissed than the period oaring which such ~_:pic;ae was in the employ of the railroad prior to the date of his cis-iacc-=nt or his dismissal. For purposes of this appendix, an ~_-_~1owe='s length of service shall be deternined in accorca~co :.:its: E~= i:-ovisians of section 7 (b) of the U'ashington Job Frotecticn t: _~_-~,t of May 1936.


                      5. DisplaccnnLent allowances - (a) So lcng ate= a cue-,~~d

                    Enployee's displacement as he is L.ahle, in the ;a~-,~i :~ - of

                    his seniority rights under exdstir~;L, ag=-ea:,ents, rules =d ~r:~'_ices,

                    to obtain a position producing c=~asatien equal to or c-:c~_eri;·g

                    the cosroensatian he received in the position frcr, ~.;; ich '.,c ::~s <'is

                    placed, he shall, during his protective period, be paid ,s r.-a:::iay

                    displacement allowance equal to the difference bet.:een the 2rahly


'.ED BLACKWELL
ITORNEY AT LAW -

19729 ROMAN WAY

GAITHERSBURG,

MARYLAND 20879

(301) 9 77. SOW

                                      -5-

RED BLACKWELL
 .TTORNEY AT LAW

19729 ROMAN WAY

GAITHERSBURG,

MARYLAND 70879

(7011 917-5000


compensation received by him in the position in which he is retained and the average monthly Compensation received by him in the position from which he was displaced.
 Each displaced employee's displacement allowance shall be determined by dividing separately by 12 the total co;rncnsation received by the employee and the total time for which he was paid during the last 12 tmnths in which he performed services ii-mediatel 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 reflect su'aeqmnt general wage increases.
 If a displaced employee's ccxyc3Tsatian in his L:._:-.=d p.)sition in any month is less in any ronth in which hc, r-'^c ~-rs v..o~r: than the aforesaid average compensation (adjusted to ~:W lc _t ~-iJ sequent general wage increases) to which he would `-~_:~ i:.._ _v c_a_tled, he shall be paid the differ.~ce, less caroe__^s:a-:. ~. C.,r - lost on account of his voluntary ::'_;scrTCes to the e:c=, ::Tt W,::t `ia is not available for service equival~-Tt to his average ci:v-'ay ~-:.:e during the test period, but if in his retained position `.:.~ -:nr':-r

 any month in excess of the aforesaid average monthly
 during the text period he shall be aclliitionally c .: _:
 such excess time at the rate of pay of the retair:e·a ;

 . (c) The aisplac~-rznt a11cwaion still ccae r:L=e_

 piration of the protective period in the event Of tne 1____7 employee s resignation, death, re! _r`mant, or ais-rissai io: fiable cause.
 6. Dismissal allowances - (a) A dismissed c_~lcve_ paid a monthly dismissal allowance, frccn the date he is c'.=p_iv;
 auploymeTt and continuing dtsi:-ig h_s protective period, eq.:iva
 ED BLACKWELL
 `TORNEY AT LAW

19129 ROMAN WAY

GAITHERSBURG,

MARYLAND 20979

(301) 9775000


to one-twelfth of the compensation received by him in the last 12 months of his employment in which he earned compensation prior to the date he is first deprived of cnTloymez-it as a result of the transaction. Such allowance shall also be adjusted to reflect subsequent general wage increases.

 (d) The dismissal allowance shall cease prior to the cKpiration of the protective period in the event of the eiployee's resignation, death, retirement, dismissal for justifiable c-m:se Lmc:rr existing agrements, failure to reti= to service after being rLCtified in accordance with the working agrea:r=t, failure w-it~DUt gc~a cause to accept a conTarable position which does rest -cruire a change in his place of residence for which he is c:._Li:=i..:~ ,~.:' -ligible after appropriate notification, if his ret_= ~:~_;:ct i.~.fringe upon aTplovment rights of other =loyees Lnc:~- 2
 =.:~r':~y agreement.

 9. 2=rsmng expenses - Airy ea, _oyee retained in ~a.e ;: _-: ice C f the railroad or who is later restc.-ed to service after be:,. <-_ - titled to receive a dismissal allowance, and who is re r~rei to change the point of his earoloyu_-_nt as a result of th_ _; .....

 and ~.iw within his protective pericd is required to
 of residence, shall be reimbursed for all o.
 household and other personal effects for the tr-~el ~-u
 himself and carLers of his faTdly, :rciliW
 hi.=rself and his family and for his v:.;~ ac-Lual ~::avc less,
 3 :err g days, the exact eKtent of flue reso=sibility e:
 road during the time necessary for such ~ansfer a:ad `_c.
 time th=reafter and the ways ecid of
 agreed upon in advance by the railroad and the

 his representatives; provided, h.^::_~;er, t_h,~3t ch-=y=s in rI-ce o=
 residence which are not a result of the transaction, shall not be considered to be within the purview of this section; provided further, that the railroad shall, to be same extent provided above, assume the expenses, et cetera, for any employee furloughed with three (3) years after clanging his point of amlovmeTt as a result of a transaction, who elects to move his place of residence back to his original point of employment. No claim for reiniDUrsL:ncnt shall be paid under the provision of this section unless such claim is presented to railroad within 90 days after the date on w'-,dch the expenses were incurred."

        V. FINDINGS AND DISCUSSION

After due study of the foregoing and the -.:i:olc

 it is concluded that the claim

 record and the cited provisions

 '.ED BLACKWELL iTORNEY AT LAW

19129 ROMAN WAY

GAITHERSBURG,

MARYLAND 70879

p07) 9775000


is not supported by the `-cl-s of

 of the

 tive Conditions in that the record fai was deprived of employment as a result

 the protective conditions attach. Accord protective allowance will be denied.

 In reaching this decision the Claimant received moving expense gon Short Line Protective Conditions

 move from Warrens, Wisconsin to the

 move was necessitated by the track

 the resulting displacement of the Clam. tainer position at Warrens. However,

 Oregon Short Line °rotoc-

 s to show that

 of the transaction

 ingly, the claim

 tc ,:h~ch

 nor a

 it has 'peen reco,_:: _~:-? ;-hat s L:zder Section ° u= _':;e J_ _-

 WJ OL._ray tile CCSt of M's

 e Ch:_a1o area; and th,:t ,'_is

    abao.:on..ment in ugust 1?32 a _:d


:nt from the Sic;nai ..,:inits moving e::n'Uns2 e;:titi~
            ment accrued to the Claimant under Section 9 of the protective conditions because he was "required to change the point of his employment as a result of the transaction" to which the protective conditions attach, but not because he was a "displaced" or "dismissed employee" as a result of the transaction. More specifically, this entitlement to moving expense is a right that is provided independently of the entitlement to displacement or dismissal allowances under the Oregon Short Line Protective Conditions, and the criterion which gives rise to the moving expense entitlement is not the same criterion which gives rise to em it=~.~nt to a displacement or dismissal allowance.

            In other words the Claimant's situation in Adust 193'_ met the moving expense criteria of the applicable pru~_c=i-:e

            Iditions, but not the displacement allo::ance criteria; and on _-he facts now existing, the Claimant's prior receipt of moving c,.penses has no significance in assessing his claim for ~--

                                                          v~'-i:~


            ~~allowance as a result of his furlough in January of il)^'_.

            Beyond this the central consideration in this that under the Oregon Short Line Protective Conditions, _;.v_v_-


            ~~' ment to protective benefits (displacement or dismissal alic::::,_._)

            ~~ is dependent upon the existence of a causal connection t:ot::,_: a v.._ factor on which a benefit claim is based and the transaction to which the Oregon Short Line Conditions were imposed in ICC :;s~'._~t No. AB-1 (Sub. No. 136), namely the abandonment of track be~::eLn

.RED BLACKWELL

ATTORNEY A7 LAW


79729 ROMAN WAY

GAITHERSBURG,

MARYLAND 20879

)301) 977.5000

                                      -9-

          Eland and Rhinelander, Wisconsin.

          Thus the Claimant's furlough in January 1983 would bring

          him under the dismissal allowance provisions of the protective '

          conditions if, and only if, that furlough was the causal result of

          the track abandonment. This is made crystal clear by the follow-


          ing provisions from the Oregon Short Line Protective Conditions: i

          I

                  "Labor protective conditions to be imposed in railroad abandonmgt or discontinuance pursuant to 49 U.S.C. 10903, (formerly


                  I section 1(a) of the Interstate CaTmerce Act) are as follows:

                  1. Definitions - (a) 'Transaction' means any action taken pursuant to authorizations of this Co:rTrassian an which ti,.ese provisions have been imposed."

                  (b) 'Displaced employee' mems an aTroloyee of tiie railroad who, as a result of a transaction is placed in a worse position with respect to his ccrroensatian and rul .-'s governing his ,.=, T-'-_i; .~ conaitions.

                      (c) 'Dismissed employee' mans an employee of ten railroad

                  who, as a result of a transaction is deprived of erolc,.,=nt with

                  the railroad because of the abolition of his position or the loss

                  thereof as the result of the exercise of seniority ri:-:-,ts by ,_n ~~-

                  ployee whose position is abolished as a result of a trV s action."

          In applying these provisions to the facts of record it is inescapable that the Claimant's furlough was the result o_ a decline in business in late December 1982, and not as a result of the track abandonment in August 1982. In consequence, it cannot be said that the Claimant "as a result of a transaction" (i.e., the track abandonment) was "deprived of employment with the rail-


cD BLACKWELL
 TORNEY AT LAW
?129 ROMAN WAY
 GAITHERSBURO,
 h:ARYLANO 2U8T9
 )301) 977·5000
                                    _10-

          road" within the meaning of Section 1 (c) of the Oregon Short Line Protective Conditions. Accordingly, the required causal connection between the basis of the benefit claimed herein and the traps action is not established by the facts of record and the Claimant is thus not entitled to claimed dismissal allowance.

          For a like ruling, see WJPA Docket No. 109, Lighter Captains' Union, Local 996 I.L.A., AFL-CIO and Erie-Lackawanna Railroad Company.


                              DECISION AND AWARD

          The claim is not supported by the evidence of record and the cited provisions from tile Oregon Short Line Protec-.W~e Conditions and accordingly, the claim will be denied.

          BY DIRECTION OF THE ARBITRATION COMMITTEE ES-i:.al_i~'rirD UNDER SECTION 11 OF THE ORE N S T LINE PROTECTIVE CONDITIONS.


                          Fr k Blackwell, Chair-::an/Neutral


              v

              hT. B. Harwell, Jr., . c. Si .on, Carrier 'ter,,'Ser

                Brotherhood Member


            August 29, 1984


'.ED BLACKWELL
i70RNEY AT LAW

79129 ROMAN WAY

GAITHERSBURG,

MARYLAND 20879

(107) 9775000

                                      -11-