Claim of Signal Maintainer R. C. Harris for displacement allowance beginning May 1983 under Sections 5 and 10 of the Oregon Short Line Employee Protective Conditions.
On January 3, 1983, the Illinois Central Gulf Railroad Company (ICG) made application to the Interstate Commerce Commission (ICC or commission) for permission to abandon 148.89 miles of rail line located on what is known as the ICG's Amboy District and Bloomington District.
By letter dated March 10, 1983, the ICG advised the Brotherhood of Railroad Signalmen (Organization) of its intended abandonment of the aforementioned rail line. Among other things, ICG stated
in its letter that when this line is abandoned, it anticipated that one position of Signal Maintainer would be abolished.
Five days later, on March 15, 1983, the ICG posted notice to "All Concerned," outlining the parameters of the intended abandonment and listing 22 positions in various crafts and classes which ICG said it would "anticipate" will be abolished as a result of the abandonment. Included in the list of positions was reference to the one position of signal Maintainer as mentioned in the ICG letter of March 10, 1983.
On March 30, 1983, the organization's General Chairman responded to ICG's proposed letter of understanding of March 10, 1983, and suggested that the matter be discussed and resolved at a meeting which had already been scheduled for April 25, 1983.
Although the date of such action is not shown in the record, representatives of the Organization did affix their signatures to the March 10, 1983 Letter of Understanding, supra, either at or subsequent to the April 25, 1983 conference.
Effective May 1, 1983 the ICG reportedly made a general force reduction of 29 positions in its Engineering Department. Among the positions abolished was that of Traveling Signal Maintainer at LaSalle, Illinois, a position which claimant Harris had held since some time in 1981.
On May 9, 1983, in the normal exercise of his seniority, claimant Harris obtained by displacement a position of Signal Maintainer at Springfield, Illinois. The position of Signal Maintainer is hourly rated, whereas the position which Claimant Harris had held as a Traveling Maintainer is monthly rated. In any event, there is no question that the position of Signal Maintainer provided a monthly compensation that was less than that which had been provided Claimant Harris as a Traveling Signal Maintainer, and
that this exercise of seniority resulted in claimant Harris changing his place of residence.
In this latter regard, on or about July 23, 1983, Claimant Harris submitted claim to the ICG for moving expenses in the amount of $1,523.60.
After what have been described as extended discussions between the parties, the ICG, by letter dated January 18, 1984, proposed the claim for moving expenses be settled by payment of $1,234.90, the ICG maintaining that certain itemized costs as submitted were excessive. In its letter, the ICG stated: "This offer is made with the understanding that the union will not file any additional claims for relocation in the event the company eventually abandons or sells the Amboy District." The ICG requested the Organization signify its concurrence to such understanding by affixing authorized signatures to the letter. The organization did not accept the ICG offer of settlement.
The ICG submitted a further proposal for settlement of the claim for moving expenses in a letter dated March 27, 1984, its letter of proposed disposition of the issue reading as follows:
In this latter regard, the Board recognizes that while the dispute here at issue was in progress on the property, and on June 17, 1983, the Administrative Law Judge issued an initial decieion authorizing the ICG abandonment of the line of rail covered by its application subject to the conditions for the protection of railroad employees as set forth in Oregon Short Line R Cc .-_Abandonment, 360 I.C.C. 91 (1979). The initial decision was acfirmed in a Commission decision served September 15, 1983.
This Arbitration Board is also mindful that on May 29, 1984, the Commission denied a request of the Freeport and E1 Paso Railroad Company (F&EP) for a stay of abandonment pending judicial review of its initial decision, and that at the time of this Board's hearing an action to invalidate the ICC approval of the abandonment was being sought by the State of Illinois, et al, before the United States Court of Appeals for the Seventh Circuit in Case No. 84-1795.
The provisions of the Oregon Short Line conditions the subject of this dispute read, in pertinent part, as follows:
The Board will also here recognize for the record that parties to this dispute have presented extensive argument, both written and oral, and were ably represented at the Board's hearing by the following named individuals:
Essentially, it is the Organization's position that Claimant Harris is entitled to a monthly displacement allowance under Sections 5 and 10 of the Oregon Short Line conditions, the organization maintaining abolishment of Claimant's job, effective Hay 1, 1983, was in "anticipation" of the abandonment of rail lines covered by the ICG application to the ICC and required him to exercise seniority to obtain another job with less compensation and placed him in a worse position with respect to his employment.
The organization disputes the ICG contention that since the company has not yet abandoned the Amboy District that the claim is premature.
It submits that Section 10 of the Oregon Short Line conditions specifically provides for the protection o! an employee whose job is abolished in "anticipation" of a transaction covered by the conditions and who would otherwise be entitled to protection in this respect, the Organization states:
In this latter regard, the Organization urges that it is not a requirement of the Oregon Short Line conditions that the transaction or abandonment must have taken place before an employee is entitled to protective benefits, that under Section 10 carrier "intent" is not required, only adverse "effect" upon the employee whose job is abolished.
As concerns the ICG contention that the Oregon Short Line conditions "have not yet been imposed," the Organization submits that the conditions were effective with the certificate approving the abandonment and, further, the ICG acted anticipatorily at its own peril.
The organization also submits that the ICC previously rejected the "prematurity" argument of the ICG with respect to labor protective conditions imposed by the ICC on approval of various
transactions, when it affirmed the right of a carrier, over the protest of BRS and other labor organizations to invoke provisions of such conditions prior to ICC approval o! the transaction. In this connection, the Organization cites and describes actions related to the ICUs decision in a proceeding identified as Southern Railway Company--Purchase--Kentucky fi Indiana Terminal Railway Company (Finance Docket No. 29690).
It is ICG's position that abolishment of Claimant Harris' job effective May 1, 1983 had nothing whatsoever to do with the abandonment application which it had filed with the ICC on January 3, 1983; the claim was premature when filed in April 1984 because the abandonment had not yet taken placer and, the instant claim must be denied since a claim cannot properly be considered until a transaction has occurred and there has been established a causal nexus between the transaction and a claimed loss of compensation.
In presentation of its position, the ICG stresses the following four points:
As concerns there having been a decline in business, the ICG states that its business has been in a decline since the Fall of 1981 and that management has been abolishing jobs, consolidating territories, and eliminating functions that were once thought necessary. In this connection, the ICG submits that there is a provision in the 1972 ICG-GM&O Employee Merger Protection Agreement which permits ICG to reduce the number of merger protected employees on the basis of a comparison of revenue and ton miles
in a current thirty-day period with the revenue and ton miles of the combined carrier in the period prior to the merger. In this regard, the ICG offers to the Board statistical information applicable to the decline in business provision of the IC-GM&0 Merger Agreements.
In regard to the consolidation of territories, the ICG pre;.·nts statistical information to show there have been substantial declines in revenue and carloads handled in the Amboy District, or that territory to which Claimant Harris had been assigned prior to the abolishment of his job. Furthermore, the ICG submits that it was necessary several employees have their positions rebulletined as the result of territorial changes and consolidations immediately prior to and during the time in question.
The ICG states that its Engineering Superintendent had received instructions to reduce the Northern Division headcount from 288
to 250 employees effective May 1, 1983, and that Claimant Harris' job was abolished "to help meet his target of cutting 38 people by May 1."
As concerns its argument that the work of Claimant's assignment was not discontinued, but was reassigned to other employees, the ICG states the work on Claimant Harris' territory was reassigned to five other maintainers and that train service was not changed at the time or until November 18, 1983, when ICG abolished three of lour local trains which had represented "age-old level of train service" in this territory. Further, that the territory south of LaSalle was thereafter served on an as needed basis by the tri-weekly service retained between Freeport and LaSalle until October, 1984, and that currently the ICG continues to operate one local in the 78.58-mile territory between Freeport and LaSalle.
Insofar as its position is concerned with respect to having continued to operate all but a small segment of the rail line in question for a long period following the 1983 job abolishment, the ICG directs attention to various actions pertaining to review and approval of its application for abandonment by the ICC and the courts, and offers the following summary conclusion:
Accordingly, the ICG states that even if the claim was held to have merit, which it maintains it does not, the claimant would not be due compensation for a period prior to the time the ICC determined that Oregon III protective benefits applied.
The explanations offered by ICG as to the rationale for abolishment of the position occupied by Claimant Harris effective May 1, 1983 being related to conditions other than abandonment of the rail line are unconvincing.
There is no indication in the record to show that from the time ICG formally notified the employee representatives on March 10, 1983 of positions to be abolished in connection with abandonment of the rail lines in question to the time it was agreed to present the dispute to this Arbitration Board !or resolution, that ICG had formally advanced a decline in business as the principal or alternate reason for abolishment of the position held by Claimant Harris.
The mere fact that in pursuance of the 1972 IC-GM&O Employee Merger Protective Agreement, ICG could state it regularly furnishes representatives of the Organization with revenue and ton miles data for thirty-day periods of time may not be held to have established notice to the Organization that abolishment of the position occupied by Claimant Harris was necessitated by a decline in business. Nor do we believe that because ICG could show by introduction of internal correspondence that overall departmental work force reductions were mandated by its budget department, that the dictates of such budgetary instructions may be translated into having necessarily provided ICG an alternative option to its stated intent and announcement that the position was to be abolished as a result of the abandonment. In this respect, the Board questions the propriety of ICG having used abolishment of this position "to help meet [a departmental] target of cutting 18 people by May 1, [1983]," particularly in the light of the work of the abolished position remaining to be per-
Contrary to ICG assertions, the evidence of record is supportive of the conclusion that ICG had recognized the position meld by Claimant to be the Signal Maintainer position which it na1 anticipated would be abolished as the result of the abandonment.
In reviewing the record, we think there is no question that since ICG had a desire to proceed with abandonment of the rail line, at least administratively, in advance of official authorization from the ICC, that ICG deemed it appropriate to independently bring the matter within the purview of the Oregon Short Line conditions with its letter of March 10, 1983 to the Organization and its subsequent bulletin notice of on March 15, 1983 outlining the abandonment and listing the positions which it anticipated to be abolished as a result of such action.
It also appears evidential, notwithstanding ICG's contention that the Amboy District "has not been abandoned and no employee protection has been imposed," that ICG recognized Claimant Harris as an affected employee subject to the protective benefits of the Oregon Short Line conditions as a result of the planned abandonment of the rail line by reason of its agreement to grant him $1,500 moving expenses coincident to the exercise of seniority after his job had been abolished. In this connection, we would note that the Board had not been directed to any contract obligation under rules of the Schedule Agreement which otherwise obligated ICG to payment of such moving expenses.
The Hoard also believes, as indicated above, that by ICG having admittedly utilized signal maintainers from adjacent territories to cover the Amboy District on what it describes as a "temporary" basis following abolishment of the position held by Claimant Harris, that such action is likewise supportive of the conclusion that the position was in fact abolished in anticipation of the abandonment. In this same regard, we find it of interest that in an internal memorandum, the ICG stated the work involved the maintenance of protection of grade crossings and interlockings "until the railroad is physically removed." In other words, it appears the work was to be performed on but a temporary basis in anticipation of early abandonment of the rail line.
In this same regard, the Hoard finds it significant that in its proposed Letter of Understanding in resolution of the claim for moving expenses, that ICG found reason to seek agreement to the following proposition: "(If] the Amboy District is eventually abandoned, the union will not seek protective benefits based
solely on the abandonment of the Amboy District for employees who are currently temporarily working the Amboy District as part of their assignments." This requested condition of agreement is supportive of the conclusion, in the Board's opinion, t1^at ICG concern at the time did not especially involve the protective status of Claimant Harris, but rather concerned a desire by ICG to be protected against employees who were temporarily assigned to perform work previously attached to the position held by Claimant Harris. The ICG apparently wanted it understood that since it was recognizing, at least in part, Claimant Harris as the employee affected by abandonment of the rail line that other employees assigned to cover work of the abolished position on a temporary basis until the line was fully abandoned had no basis to claim they too had been adversely affected as incumbents of a position abolished coincident with this particular abandonment.
The Board believes this same concern was reflected in that additional portion of the proposed Letter of Understanding whereby ICG stated: "in the event the company establishes a full time position on the Amboy District prior to the abandonment, the payment of moving expenses to Hr. Harris will not prejudice the positions of the respective parties at the time of abandonment." Again, it would seem that in turn for recognizing Claimant Harris as the employee adversely affected by the abandonment, ICG wanted to protect itself against claims o! other employees in the event it found that work of the abolished position could not continue to be performed on a temporary basis.
That ICG would now try to set aside recognition of Claimant Harris as an employee who had been adversely affected in anticipation of the abandonment because ZCG has been subjected to unanticpated delay with respect to a purchase agreement with other carriers and certain court action which has not otherwise permitted total abandonment of the rail lines in question, comes too late. In the Board's opinion, for ICG to be permitted to withdraw the protective recognition which it meantime extended claimant Harris in anticipation of unencumbered abandonment of the rail line in question would be violative of the Oregon Short Line conditions.
Accordingly, since there is substantial reason to conclude that the action taken by ICG was triggered by an intent to proceed with a transaction within the purview of the Oregon Short Line conditions, and as Section 10 of such protective conditions has been interpreted to protect employees such as Claimant Harris whose jobs are shown to have been abolished in anticipation of a
transaction, it will be this Board's decision that Claimant is entitled to full protection from the adverse affects of ICG's abandonment of the rail line covered in its petition to the ICC under date of January 3, 1983.
As concerns the date protective benefits coverage under the Oregon Short Line conditions may be held to have properly commenced for Claimant Harris, the record shows that the Organization had stated in a letter dated April 22, 1984 to Ice that Claimant Harris had furnished claimed differences in earnings to the ICG Midwest Division office at Champaign, Illinois since May 1983 without receiving any response from that office. This statement by the organization appears to have remained unchallenged on the property and at hearings before this Hoard.
In the circumstances of record, the Board (will hold that there was a direct causal nexus between abolishment o! the position held by Claimant Harris and a transaction as defined in the Oregon Short Line conditions, which had, in turn, placed Claimant Harris in a worse position with respect to compensation and rules governing his working conditions. Claimant Harris is, therefore, entitled to a displacement or protective allowance as a displaced employee from the date he was first adversely affected, i.e., May 1, 1983; or the date we believe his position was abolished by ICG in anticipation of that abandonment application which ICG had made to the ICC on January 3, 1983.
The Question at issue is answered in the affirmative. For those reasons sat forth in the above Findings and Opinion, Claimant Harris is entitled to benefit of a displacement allowance under the provisions of the Oregon Short Line conditions retroactive to May 1, 1983.