ARBITRATION COMMITTEE
ESTABLISHED UNDER SECTION 11 OF
OREGON SHORT LINE III LABOR PROTECTIVE CONDITIONS IN
INTERSTATE COMMERCE COMMISSION DOCKET NO. 30338
The Interstate Commerce Commission (ICC) in Finance Docket No. 30338, dated December 12, 1983, approved application o! the Grand Trunk Western Railroad (Carrier) to~'abandon 0.8 miles of track beginning west of Jefferson Street and extending to the end of the line at Rudd Street in the City of Midland, Michigan.
In its decision, the ICC related that the Carrier had sought an exemption under 49 U.S.C. 10505 from the requirements of 49 U.S.C. 10903 et sec., and stated:
On February 21, 1985, the Carrier again advised the ICC that it was exercising the authority granted it by the decision of the ICC in its Ex Parts No. 274 (Sub-No. 8), Exemption of Out of Service Rail Lines, 366 ICC 885 (1983), to abandon a portion of the former Michigan Central Saginaw Branch between M.P. 92.5 and M.P. 98.6, a total o! 6.1 miles, effective at midnight on April 25, 1985. In this regard, the Carrier attached to its notice an affidavit from its General Manager Transportation which stated that no local traffic has moved to or from the subject line for at least two years prior to February 25, 1985. The Carrier also stated that a portion of this line was subject to prior trackage rights for the Chesapeake i Ohio Railway, and that that portion has been offered, for sale, to the C&O Railway.
The Carrier also stated in its notice: "The interest o! railroad employees will be protected by Oregon S. L. - Abandonment, 360 I.C.C. 91 (1979), conditions."
In this latter regard, the Oregon Short Line III Conditions state in pertinent part, the following:
An additional question advanced to the Board concerns a determination as to whether the Winkler-Lucas Lead on the Saginaw Branch could be properly taken out of service by the Carrier absent abandonment or exemption from abandonment authority from the ICC.
The UTU maintains that the Carrier proceeded with abandonment of the above mentioned lines of track in complete disregard of the labor protective conditions as imposed by the ICC, and that the abandonments have adversely affected certain employees which it represents.
In regard to the Midland, Michigan trackage abandonment, the UTU says that contrary to Carrier contentions that the abandonment did not take place until January 18, 1984, that the Carrier took the 0.8 miles of track in question out of service on September 27, 1983, and thereafter physically removed the track on or about October 10, 1983.
The UTU also introduced -copy o! a hand written switching list which indicated that a freight car destined to a customer on that portion of the track here in question had to be returned to Bay City, Michigan !or unloading since the track had been taken out of service. The UTU says that it was then necessary the shipment be trucked over to the customer.
fected by the Midland trackage abandonment, the nTtJ states the craw on the assignment at the time the trackage vas taken out of service, i.e., September 27, 1983, was composed of Yard Conductor DePaal and Yard Brakemen Lawrence and Rolkn. When the track was purported to have bean physically removed on October 10, 1983, the crew, according to the UTU, was composed o! Yard Conductor Brown and Yard Brakemen DaPeal and Lawrence.
On the effective data of abandonment as sat forth in the ICC Decision, i.e., January 18, 1984, the crew, according to the UTU, consisted of Yard Conductor Brown and Yard Brakemen DePeal and Lawrence.
11s to the manner in which it claims the employees were adversely affected, the UTU says that when it had been necessary in the past to service a customer on the now abandoned portion o! the track at Midland, that it took a crew about one hour to go down and back and that such service was usually performed on an overtime basis.
In regard to the abandonment of a portion of the former Michigan Central Railroad Mackinaw Branch (Bay City Belt), the UTU says that contrary to the Carrier contention that no service remained to be performed on the trackage in question, that after the effective date of abandonment, but prior to to the trackage being physically removed, the track was used by the Carrier to handle cars to and from a contractor (Midwest Bridge), who was constructing a bridge in Bay City.
The BTU states there are two groups of employees involved in this portion of its claim. On the date of abandonment, i.e., October 21, 1984, the UTU says the regular employees assigned to the Bay City Yard assignment were Yard Conductor Stapanski and Yard Brakemen Maze and Yax. Furthermore, the UTU submits, on this same date an extra assignment was called and manned by Yard Conductor Brown and Yard Brakemen DePeal and West.
As concerns the abandonment of other former Michigan Central Railroad trackage on the Saginaw Branch (Paines Spur), the UTU states that ouch trackage was abandoned in place without notice to the interested employees or the UTU. It does not identify any employees as having been allegedly adversely affected by the abandonment.
In regard to the Winkler-Lucas Lead, the UTU asserts that the track is out service and that several customers are not being or cannot be serviced on this section of track. It states that it is concerned that the Carrier is going to 'dry up" traffic and than go to the ICC and say that it is abandoning this portion o! the line since no service has bean performed on it for two years.
The UTU does not identify the customers no longer being serviced, nor does it name those employees allegedly adversely affected by the Carrier action involving the Winkler-Lucas Lead.
It is Carrier's position that the claims should be dismissed, i! not denied, for what it maintains has bean the failure of the UTU to have met the necessary burden o! proof in support o! its generalized contentions with respect to each o! the abandonments.
The Carrier also contends that any claim premised on the tact that it had not served notice on what are termed interested employees, oz the UTU, !or the purpose o! reaching an implementing agreement with respect to application of the Orgeon Short Line Conditions is without merit. In this connection, the Carrier reads Article 4, "Notice and agreement or decision," of the Oregon Short Line Conditions as providing that a carrier contemplating a transaction may give notice and enter into an implementing agreement, thereby making the service of a notice or the entering into o! an implementing agreement other than mandatory applications of the Oregon Short Line Conditions. The Carrier therefore says that since the trackage abandonments did not result in a dismissal or displacement o! employees or rearrangement o! forces, there was no need for a notice or an implementing agreement.
Turning to the specifics o! each abandonment, the Carrier states that although there was an abandonment of 0.8 mile o! track in the City o! Midland, Michigan, the action taken was essentially to avoid the costs o! repairing or renewing several rail-street crossing and to permit the City opportunity to pave the street crossings. It states that such action was taken with no objection from business reprasentativas, apparently since the amount of traffic handled on such portion o! trackage was extremely minimal. The Carrier further states that any affect upon the compensation of employees was of an insignificant nature since it continues to operate a local assignment to service active customers on this line from a new team track which it constructed approximately one mile east of the abandoned George Street Team Track, or the location of one o! the crossing which had been abandoned.
With respect to abandonment o! four miles o! track on the former Michigan Central Mackinaw Branch (Bay City Belt), the Carrier maintains that no local traffic had been handled on the abandoned portion o! the line in the two years immediately preceding the abandonment action. In this same regard, the Carrier says that although the tour miles of track have been abandoned, a yard crew is still maintained at Bay City and continues to serve the three industries located on the Belt via Chesapeake i Ohio Railway trackage, albeit over a more time consuming route which naturally evolves into a more coetly method of operation. Insofar as the amount of traffic handled is concerned, the Carrier states that it amounted to but 44 carloads in 1984; 45 carloads in 1985.
In response to DTU statements relative to cars handled for a contractor on the Bay City Belt, the Carrier states: "As a contractor (Midwest Bridge) vas constructing a bridge in Bay City this contractor was accepting cars on this trackage at MP 0.1 in early
1985. Teas trac... delivery for this contra_cor at this location was to have ceased on or about April 9, 1985 however; three (3) more cars ware handled to this location. The last o! these cars as indicated on Waybill (Attachment /2) for GN 61033 was consigned in cars o! Brown Brothers Company [with a Waybill data o! August 7, 1985]."
The Carrier also submits that notwithstanding its position that the Bay City Belt abandonment was properly effected and such actions have not adversely affected any employees, it did, under date of April 9, 1985, forward to the UTU a proposed agreement regarding such abandonment, but that to date the UTU has refused to enter into such agreement. The agreement was proposed, the Carrier states, without prejudice to its position that no agreements are necessary under the Oregon Short Line Conditions.
In regard to abandonment o! 6.1 miles o! trackage of the loaner Michigan Central Railroad Saginaw Branch (Paines Spur), the Carrier submits that by letter dated February 27, 1985 it had advised the UTU, together with all other labor organizations, as follows of such abandonment:
The Notice of Exemption Abandonment as attached to the above letter showed the abandonment to be effective April 25, 1985.
The Carrier also submits that it had proposed the following draft of agreement to the UTU, without prejudice to its position that no agreement was necessary, with respect to the Paines Spur track abandonment:
"AGREEMENT BETWEEN THE
GRAND TRUNK WESTERN RAILROAD COMPANY
AND THE
UNITED TRANSPORTATION UNION
As also concerns the Paines Spur abandonment, the Carrier states that no industries are located on this portion of trackage and that the assigned yard craw at Saginaw has not bean affected by the abandonment. Moreover, the Carrier says that this trackage, which it had initially attained from the Penn Central, has not been physically removed since it is currently being used by and is up for sale to the Chesapeake i Ohio Railway Company.
Lastly, as concerns the Winkler-Lucas Lead, the Carrier states that one end of this track has been placed out of service, but that the customer on this track continues to be serviced by the Saginaw Yard assignment. It submits the one end of the track was placed out of service in a manner not unlike that which governs the taking out of service of any other yard track !or any number of reasons.
As concerns the abandonment o! trackage in Midland, Michigan, we think it clear from the record as presented and developed that the Carrier knew or should have known that a condition precedent to abandonment of such operations or services in pursuance of the ICUs Decision in Finance Docket No. 30338, decided December 13, 1983, required notice be posted to interested employees and that registered mail notice be given to representatives of such interested employees, including the UTU. The change in operation and services not only took active track out of service, but provided for the subsequent servicing of customers or shippers located on the abandoned track from a newly constructed team track about one mile distant from the abandoned trackage.
That the Carrier may have had reason to believe that the impact upon the employees affected was de minimus, did not, in this Board's opinion, relieve Carrier of its obligation to protect the interests of the employees as otherwise imposed by the ICC in Finance Docket No. 30338.
Therefore, we believe those employees who may have had the extent of their compensation affected by reason of the Midland trackage abandonment are entitled to be considered "displaced employees" as that term is defined in the Oregon Short Line Conditions, i.e., "an employee o! 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."
The monthly displacement allowance !or the affected employees is to be calculated and provided for as stipulated in Article I, Section 5, "Displacement allowances," of the Oregon Short Line Conditions. The displacement allowance payments are to be
retroactive to "e date the employee vas _.aected and continue until appropriate notice is served and an implementing agreement reached pursuant to Article I, section 4, of the Oregon Short Line Conditions, but in no event !or a period that would extend beyond the "protective period" specified in Article I, section 1(d), o! such Conditions.
Insofar as who this Board finds should be properly considered displaced employees with respect to the Midland trackage abandonment, we believe it should include those employees who were working on the yard assignment when the Carrier took the track out o! service on September 27, 1983 in anticipation of abandonment authority from the ICC.
Although we lied merit to the claims of the above employees, the Board fails to comprehend how it could be properly held, as the UTU urges, that employees who wars working on the assignment on either the data the track was physically removed (October 13, 1983) or the date the ICC indicated the abandonment to be effective (January 18, 1984), are to also be considered as adversely affected. We think these employees knew or should have known that the track had already been taken out of service and that their compensation might be adversely affected by reason of the anticipated transaction should they voluntarily exercise seniority to the assignment in question.
In regard to the Carrier abandonment of portions of the former Michigan Central Railroad Mackinaw Branch (Bay City Belt), we think the Carrier was obligated to have served notice to the interested employees and their representatives relative to such intention. The fact that no service had been performed on the portion of track abandoned for two years prior to its notice of Exemption of Out of Service Rail Lines to the ICC did not relieve the Carrier of this responsibility.
Here, it is to be noted that the ICC held in Finance Docket No. 30338, supra, that notwithstanding the transaction was of limited scope, that it may not use its exemption authority to relieve a carrier of its obligation to protect the interests of employees. Further, the Carrier in notifying the ICC of the abandonment of a portion of the Bay City Belt trackage specifically stated: "The interest of railroad employees will be protected by Oregon S. L. -Abandonment, 360 I.C.C. 91 (1979)."
In the circumstances, this Board is unable to agree with the Carrier contention that it was not obliged to serve notice upon the interested employees and the UTU. We think the ICC imposition of protective conditions must be recognized as presuming that notice is to be provided interested employees and their representatives so that the latter may make determinations independent of the carrier as to whether there is an adverse affect upon employees as a result o! a transaction. Certainly, the mere fact that no industries remained to be served did not necessarily mean that the trackage being abandoned had not been used by employees for other operating purposes, e.g., handling train movements to service other industries or to regularly set out cars during a
The Board's views as above with respect to notice requirements notwithstanding, we believe that i!, in conjunction with the serving of a notice, or thereafter, it is determined that no employee is adversely affected by reason of an abandonment, and no employee or representative of the employees can show cause as to why it should be held there would be an adverse affect, that it is not necessary there be an implementing agreement so as to affect the authorized abandonment.
In the instant Bay City Belt dispute we think it was necessary, however, there be both a notice and an implementing agreement since it may be presumed there would be an impact on the compensation of employees on the Bay City Yard Assignment, albeit minimal, by reason of the employees having to admittedly take a note tine consuming route to service those same industries which it had been servicing prior to the track abandonment. Here, the Board is mindful that an adverse affect could result from an affected employee being required to work mots or less than the equivalent number of test period average hours to earn compensation equal to or greater than test period earnings calculated in application of Article I, Section 5, of the New Orleans Conditions.
Accordingly, it will be the Board's determination that those employees who occupied regular positions on the Bay City Yard Assignment on the data of abandonment as noticed by the Carrier to the ICC (October 21, 1984) are entitled to be considered as "displaced employees" under the Oregon Short Line Conditions. The displacement allowance payments, if any, are to be retroactive to the date the employees were affected and continue until appropriate notice is served and an implementing agreement reached pursuant to Article I, Section 4, of the Oregon Short Line Condistions, but in no event for a period that would extend beyond the "protective period" specified in Article I, section 1(d), of such Conditions.
Those employees who occupied an extra assignment on this same date era not, however, considered displaced since there is no showing that their work opportunities and compensation was governed by other than the rise and fall of business conditions as opposed to work on an assignment which regularly used the abandoned trackage.
As concerns the abandonment of other former Michigan Central Railroad trackage on the Saginaw Branch (Paines Spur), since the record shows that Carrier had in fact given notice to the UTU under date o! February 27, 1985, and the UTtJ has not meantime shown cause as to why it should be held that employees it represents have been adversely affected, we believe it must be concluded that the Carrier has fulfilled the requirements of the Oregon Short Line Conditions with respect to this particular abandonment.
L y W. Swert
Organi'z'ation Member