X11-
PUBLIC LAW BOARD N0. 4057
PARTIES SOUTHERN PACIFIC TRANSPORTATION CO.
(EASTERN LINES) )
AWARD N0. 2
TO AND )
CASE N0. 2
UNITED TRANSPORTATION UNION )
DISPUTE (C&T), (E) b (S) )
ISSUE TO BS RESOLVED:
Is an implementing agreement between the Carrier and
the Organization required pursuant to Article I,
Section 4 of the Oregon Short Line Conditions in
connection with Interstate Commerce Commission
Finance Docket AB-12 (Sub. No. 99X)?
BACKGROUT.TD
a. History of Dispute
On November 5, 1985 the Southern Pacific Transportation Company
(SP) filed an application with the Interstate Commerce Commission (ICC)
under ICC procedures governing exempt abandonments for authority to
abandon the Carrier's 31.2 mile line of railroad between Milepost 37.00
near Bay City, Texas and Milepost 68.12 near Palacios, Texas. By decision
of November 13, 1985, served November 25, 1985, the IC:C in Finance Docket
No. AB-12 (Sub. No. 99%) granted the Carrier's application. The Commission's
decision provided that "[A]s a condition to the use of this exemption,
any employee affected by the abandonment shall be protected pursuant to
Oregon Short Line R. Co.-Abandonment-Goshen, 360 I.C.C. 91 (1979)."
Since 1979 all business on the Palacios branch has been handled
with an extra crew on an as needed basis with the exception of one industry
at New Gulf which by agreement is handled with regular assigned pool
freight crews from Houston, Texas. For the past three years the only
business on the branch has been an occasional carload for a company at
Bay City, Texas interchanged to SP by the Santa Fe Railroad at that
location. When that traffic arrives at Bay City, SP deadheads an extra
crew from Victoria, Texas to spot the interchanged car to the shipper
using a Santa Fe engine leased to SP.
The ICUs decision granting the exemption became effective
December 25, 1985. Thereafter, the Carrier abandoned the Palacios line.
By letter of January 3, 1986 the Organization requested that the
Carrier meet with it for the purpose of discussing employee protection
for employees adversely affected by the abandonment. By letter of January 13,
1986 the Carrier took the position that since no employees were affected
by the transaction authorized by the ICC, no discussions were required.
A dispute between the Organization and the SP ensued.
The Carrier's January 6, 1986 letter was authored by the highest
officer of the Carrier designated to handle such disputes. The parties
determined to place the dispute before this Board by virtue of the issue
to be resolved set forth above.
b. Parties' Positions
The Organization maintains that the abandonment meets the
Oregon Short Line definition of a transaction set forth in Article I,,
Section 1(a) of the conditions which specifies a transaction as ". . . any
action taken pursuant to authorizations of this Commission on which these
provisions have been imposed." The Organization goes on to point out
that Article I, Section 4 of the conditions requires notice and negotiation
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of an implementing agreement with respect to any transaction as defined
in Article I, Section 1(a) of the conditions. Accordingly, urges the
Organization, the question at issue must be resolved in the affirmative.
In support of its position the Organization points to the ICU s
treatment of notice and negotiation provisions in its decision in Finance
Docket No. AB-36 (Sub. No. 2) Oregon Short Line-Abandonment-Goshen (Feb. 9,
1979) and in its decision in Finance Docket No. 28256, Mendocino Coast
Railway, Inc.-Lease and Operate-California Western Railroad (Feb. 6, 1980)
dealing with the level of benefits to be provided employees under ICC
imposed protective conditions. The Organization points out that in its
1979 decision the ICC reconsidered and reversed its decision to impose
only modified protection in cases of abandonment in favor of providing a
full level of benefits for affected employees. The Organization specifically
notes that the Commission changed the requirements from twenty days notice
with authority for a Carrier to implement the transaction without an agreement, to ninety days notice together with the proviso that "[N]o change
in operations, services, facilities, or equipment shall occur until after
an agreement is reached or the decision of a referee has been rendered."
In further support of its position the Organization cites the
December 19, 1980 opinion and award of Neutral Referee R. R. Kasher holding
that notice and an agreement under Article I, Section 4 of the OSL Conditions
was required prior to abandonment. The Organization places substantial
emphasis upon the Neutral Referee's recognition, in the face of the
Carrier's contention there had been no displacements, dismissals or
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rearrangement of forces, that even though such consequences may not be
immediate they may indeed occur in the future. The Organization also
points out that the Neutral Referee distinguished the provisions of
Article I, Section 4 of the OSL Conditions pertaining to notice and
agreement from similar provisions in the Amtrak C-1 labor protective
conditions on the ground that Article I, Section 4 of the OSL Conditions
requires notice and agreement where a transaction may result in adverse
effect upon employees whereas the C-1 conditions mandate such procedures
only if the transaction will result in adverse effect. The Organization
maintains that these principles are applicable to the instant case, and
that they mandate the same result reached by Neutral Referee Kasher.
Citing the ICU s recognition that Sections 4 and 5 of the
Washington Job Protection Agreement of 1936 (WJPA) formed the basis for
the notice and agreement requirements of Article I, Section 4 of the OSL
Conditions, the Organization relies upon numerous awards rendered by the
Disputes Committee created pursuant to Section 13 of the WJPA. Pointing
to the identical language in Article I, Section 4 of the OSL Conditions
and Article I, Section 4 of the New York Dock Conditions, the Organization
also cites the October 10, 1985 award of Neutral Referee Robert 0. Harris
interpreting the notice and agreement provisions of Article I,Section 4
of the New York Dock Conditions. The Carrier maintains that the decisions
of the WJPA Section 13 Disputes Committee and the Harris award hold that
advance notice and agreement or decision by a referee are mandatory
requirements of employee protective conditions and, accordingly, that the
Carrier may not unilaterally negate those requirements by simply
contending that because no employees are adversely affected no implementing agreements are necessary.
In any event, argues the Organization, the Carrier is factually
incorrect in its assertion that no employees were adversely affected by
the transaction in this case. Emphasizing that Article I, Section 1(b)
of the OSL Conditions defines a displaced employee as one who is placed
in a worse position with respect to rules governing his working conditions,
the Organization points out that applicable agreements specify the working
conditions of crews operating in the involved territory and that those
agreements require that tabulations therein will be changed to conform
with the limits described in any ICC certificate and order authorizing
an abandonment. Accordingly, urges the Organization, an implementing
agreement under Article I, Section 4 with respect to the transaction in
this case will provide for the change of the tabulations and the mileage
of the crews used in the affected territory when operating on the remaining
portion of the Palacios branch. Additionally, argues the Organization,
Award No. 5 of Public Law Board No. 3707 (Warshaw, Neutral, Feb. 1, 1986)
held in the case before it that Article 17 of the agreements requiring that
tabulations be changed had not been complied with inasmuch as there had
been no negotiations to change such tabulations in connection with the
abandonment authorized by the ICC in that case. The Organization contends
that award demonstrates the Carrier has violated Article 17 in the instant
case because there have been no negotiations in connection with the abandonment authorized by the ICC.
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The Organization takes the position that-in the instant case the
adverse effect suffered by employees flows from the fact that the employees
are paid in part based upon the mileage of the district in which they
operate. The abandonment here shortened the mileage of the district by
62 miles and reduced the mileage available to employees by that amount.
The Organization contends that the Carrier was well aware of
these facts inasmuch as compensation based upon mileage of the district
is specified in the schedule agreements between the parties. Accordingly,
the Carrier also knew that any reduction of that mileage necessarily would
result in employees being placed in a worse position with respect to their
compensation.
The Carrier takes the position that it is subject to the
requirements of Article I, Section 4 of the OSL Conditions only if
employees have been or will be adversely affected by the transaction
upon which the ICC has imposed those conditions. No such showing, urges
the Carrier, has been made in the instant case.
The Carrier states that it has been Carrier policy £or the past
eight years not to give notice or to negotiate implementing agreements
pursuant to Article I, Section 4 of the OSL Conditions where employees have
not or will not be affected by a transaction. Pointing to several abandonment proceedings before the ICC involving territory encompassed by agreements
with the Organization, the Carrier asserts that the abandonments were
implemented without notice, negotiation or agreement pursuant tc Article I,
Section 4. Accordingly, urges the Carrier, the Organization has acquiesced
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in the Carrier's policy with the result that the Organization is barred
now by the doctrine of lathes from contesting that policy. The Carrier
asserts that the doctrine of lathes is well recognized in the railroad
industry as evidenced by numerous arbitration awards cited by the Carrier.
The Carrier argues that the purpose of the notice, negotiation
and agreement provisions of Article I, Section 4 is to provide for the
dismissals, displacements or rearrangements of forces resulting from ICC
authorized transactions. The Carrier maintains that where there are no
such adverse effects the procedures of Article I, Section 4 are unnecessary.
The Carrier again states that because in the instant case no employees
would be adversely affected by the abandonment, the Carrier did not give
a notice or negotiate an implementing agreement under Article T, Section 4.
The Carrier argues that Article I, Section 4 is applicable only
with respect to transactions which ". . . may cause the dismissal or
displacement. of any employees, or rearrangement of forces, . . ."
(emphasis supplied). The Carrier urges that the word "may" means not
only that such eventuality is possible but is "in some degree -likely to
occur." The Carrier urges that in the instant case no adverse effect is
likely to occur. The Carrier contends that the Organization has not taken
the position that any employee has been or will be adversely affected, nor
has the Organization advanced even a hypothetical or speculative occurrence
of such adverse effect. Instead, argues the Carrier, the Organization makes
the bold and baseless assertion that notice, negotiation and agreement
under Article I, Section 4 are required under all circumstances. The
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Carrier maintains that had the ICC intended such a result, it would not
have used the word "may" in Article I, Section 4.
Instead, urges the Carrier, the Commission's order in the
instant case specifically requires that an employee be affected prior to
being afforded protection. Consequently, until such time as adverse
effect occurs the literal language of the ICU s order does not require
the parties to take action.
The Carrier alleges that in the past two years the Victoria
extra boards have remained virtually unchanged except that subsequent
to the abandonment employees were added thus indicating an increase in
work at that location. The Carrier urges that when this fact is
considered in light of the Organization's failure to present evidence of
any loss of work on the Palacios branch, the Organization has failed to
establish a causal nexus even remotely connecting the transaction to
any adverse effect upon employees it represents. Citing several arbitration
awards which the Carrier contends apply to the instant case,.the Carrier
argues that the Organization's failure to establish such causal nexus is
fatal to its position here.
Further in this regard the Carrier cites the December 17, 1978
award of Harold M. Weston involving the Brotherhood of Locomotive
Engineers, Burlington Northern, Inc., National Railroad Passenger Corporation
and Chicago, Milwaukee, St. Paul and Pacific Railroad Company. In that
award Neutral Weston, interpreting Article I, Section 4,of the Amtrak C-1
Conditions, ruled that an implementing agreement was not required. The
Carrier argues that this Board should reach the came result.
FINDINGS:
The Board upon the whole record and all the evidence finds that
the employees and the Carrier are employees -and Carrier within the meaning
of the Railway Labor Act, as amended, 45 U.S.C. 44151, et se q. The Board
also finds that it has jurisdiction to decide the dispute in this case.
The Board further finds that the parties to the dispute were given due
notice of the hearing in this case:
Preliminary to our consideration of the question at issue in
this case, we feel compelled to note that we reject certain aspects of
both the Carrier's and Organization's interpretation of Article I, Section 4
of the OSL Conditions. Specifically, we cannot accept the Organization's
contention that the procedures of Article I, Section 4 are invoked automatically by any transaction made subject to the OSL Conditions. We find
equally untenable the Carrier's position that there must be an actual
showing of adverse effect upon employees in order for the procedures of
Article I, Section 4 to apply to a transaction. These positions are
wholly inconsistent with the plain wording of Article I, Section 4 that
the procedures of that provision shall be applicable to any transaction
subject to the OSL Conditions which ". . . may cause the dismissal or
displacement of any employees, or rearrangement of forces, . . ." We
find the Organization's view of this language too broad and the Carrier's
too narrow.
We believe the question at issue must be resolved solely upon
the factual record before this Board. That record indicates there was no
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immediate adverse effect upon employees resulting from the abandonment.
However, as the Organization urges, the compensation of employees it
represents conceivably could be adversely affected inasmuch as the mileage
represented by the abandoned line no longer is to be included in the
mileage of the district. The basis for computation of the employees'
compensation has been reduced. We find the Carrier's objection to consideration of that fact by the Board is not well founded. Assuming, arguendo,
that the Organization did not raise the point on the property, we do not
believe that fact bars our consideration of it. In the context of
determining the appropriate provisions for an implementing agreement
pursuant to Article I, Section 4 of the New York Dock Conditions, Neutial
Referee Robert 0. Harris in his supplemental decision of October 14, 1985
ruled that any matter involving interpretation or application of the
conditions should be considered without regard to whether it had been
raised .on the property prior to the arbitration proceeding. We find the
rationale of that decision highly persuasive with respect to-the Carrier's
objection in this case.
Nor can we agree with the Carrier's interpretation of the word
"may" as that term is used in Article I, Section 4. The Carrier reads
that word as meaning a probability that adverse effect will occur. We
believe the term. is more in the nature of a possibility of such consequences.
We find support for this conclusion in the Kasher award finding
that the term "may" in Article I, Section 4 of the OSL Conditions applied
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to situations where the exact impact of the transaction was uncertain.
Specifically, Neutral Referee Kasher found that simply because ". . .
employees have not been affected by an abandonment during a given period
it does not necessarily preclude their being affected in the future."
The Neutral Referee also found that an implementing agreement pursuant to
Article I, Section 4 was required. Unlike the Carrier, we do not believe
the Kasher award is inapposite. On the contrary we find it applicable
and persuasive with respect to the dispute before us. The same is not true
of the award rendered.by Harold M. Weston upon which the Carrier relies.
That award involved the interpretation of Article I, Section 4 of the
Amtrak C-1 Conditions which confines the procedures of that provision to
transactions which "will" adversely affect employees.
Clearly the Carrier has an established policy not to give notice
or to negotiate or enter into implementing agreements with respect to
transactions which do not have a demonstrable adverse effect upon employees.
However, we cannot find that the Organization has acquiesced,in such
policy to the point where it has become established practice and the
Organization is barred by lathes from taking a contrary position before
this Board.
Rights established in Article I, Section 4 of the OSL Conditions
are rights implemented by federal law by decision of the ICC. Waiver or
extinction of those rights by virtue of lathes should not be inferred.
Additionally, each abandonment occurs in the context of,new and separate
facts to which the doctrine of laches,by its nature, is not clearly
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applicable. Furthermore, as we have found above, the case before us is
not one where there is no realistic possibility of some adverse effect
upon employees, the factual basis upon which the Carrier urges the
doctrine of lathes upon this Board.
We find no merit in the Carrier's argument that the procedures
of Article I, Section 4 are unnecessary in the instant case, in view of our
finding that the record before us demonstrates uncertainty and possibility
as to future adverse. effect upon employees as a result of the abandonment.
In our opinion that fact also establishes a sufficient causal nexus for
purposes of establishing applicability of Article I, Section 4. The
arbitration awards cited by the Carrier on this point are inapposite -
inasmuch as they do not deal with the question o: the applicability of the
doctrine to Article I, Section 4.
In the final analysis we believe resolution of the dispute
before us turns upon the term "may" as that term is used in Article I,
Section 4 of the OSL Conditions. We have found that both the Carrier's
position that there must be a showing of adverse effect to invoke the
application of Article I, Section 4 and the Organization's position that
Article I, Section 4 is invoked automatically by the transaction to
which the OSL III Conditions apply are both inconsistent with that term.
Applying the well established principle governing the interpretation of
agreements, statutes and regulations that words are to be given their
ordinary and usual meaning, we feel compelled to conclude that Article I,
Section 4 applies to any transaction which has the possibility of adversely
affecting employees.
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We are not unsympathetic to the problems posed to the Carrier
by transactions such as the one before us in this case. Negotiation of
an implementing agreement under Article I, Section 4 can be time consuming
and expensive, particularly if that agreement must be arbitrated. Moreover,
the Carrier is prohibited from effectuating the transaction until there is
an agreement or an arbitrated implementing arrangement. While Article I,
Section 4 contains strict time limitations so as to preclude an organization
from dragging out the notice, negotiation and. arbitration procedures of
Article I, Section 4 even "minimal" delay may seriously hamper the Carrier.
This would appear to be particularly so in situations such as the instant
case involving expedited ICC procedures. Potential delay even under the
strict time limits of Article I, Section 4 seems inconsistent with those
procedures.
Yet, the ICC imposed the OSL Conditions in the instant case with
some imputed knowledge of the potential delay contained in the Article I,
Section 4 procedures. The ICC officially approved the use of the term
"ma;i' therein for the purpose of which, we must infer, assuring.
that all employees potentially affected by a transaction would receive
protection.
We believe any effort to correct what either party may perceive
to be an inequitable or difficult situation resulting from the necessity
to apply the OSL Conditions in a particular situation must be addressed
to the ICC
which authored
those conditions and not to arbitration forums.
Such forums have power only to interpret and apply the conditions, not to
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alter them. We believe that by the interpretation of Article I, Section 4
of the OSL Conditions urged upon us by the Carrier, it seeks an alteration
or modification in the terms of Article I, Section 4. It is beyond our
power to grant that request.
AWARD
The question is answered in the affirmative.
,~
William E. Fredenberger, Jr.
Chairman and Neutral Member
R. p. i ry C. L. Little
Carri r ember Employee Member
DATED:
cl-,.q_ ~6
PUBLIC LAW BOARD NO. 4057
PARTIES SOUTHERN PACIFIC TRANSPORTATION C0.)
(EASTERN LINES) )
AWARD N0. 2
TO AND )
CASE N0. 2
UNITED TRANSPORTATION UNION )
DISPUTE (C&T), (E) & (S) ) INTERPRETATION
ISSUE TO BE RESOLVED:
Is as implementing agreement between the Carrier and
the Organization required pursuant to Article I,
Section.4.of the Oregon Short Line Conditions in
connection with Interstate Commerce Commission
Finance Docket AB-12 (Sub. No. 99X)?
BACKGROUND:
After this Board issued the above-captioned Award determining
the Issue to be Resolved in the affirmative, the Carrier requested an
interpretation of the Award taking the position that under the terms of
the Award the Carrier was required to negotiate with the Organization under
Article I, Section 4 of the OSL III Conditions only with respect to those
road employees covered by Article 17 of the agreement with t1se Organization
covering conductors sad trainmen. The Organization responded opposing
the Carrier's position.
On November 5, 1986 this Board conducted a hearing on the
Carrier's request for an interpretation.
The Carrier bases its position upon this Board's finding in
Award No. 2 that inasmuch as under applicable agreements the mileage of
the district upon which employees' pay was computed was shortened by the
Carrier's abandonment of the Palacios branch such employees "may" be
_ y _
affected as provided in Article I, Section 4 of the OSL III Conditions.
The Carrier emphasizes that only the agreement covering conductors and
trainment has such a provision and points nut that there is no similar
provision in the agreements covering firemen and switchmen. Accordingly,
urges the Carrier, the award should be interpreted not to require the
Carrier to enter into negotiations for an implementing agreement under
Article I, Section 4 of the OSL III Conditions with respect to
firemen and enginemen.
The Organization argues that the Carrier's position is baseless.
The Organization emphasizes that road and yard seniority districts have
been merged with prior rights accorded each group. Thus, urges the
Organization, any road employee dismissed or displaced as a result of a
transaction could bump into yard service and would be required to do so
with respect to a position producing compensation equal to or greater than
the position from which the road employee was displaced or dismissed. The
Organization maintains that the chain of bumping would extend throughout
the yard employees. The Organization contends that an implementing
agreement pursuant to Article I, Section 4 would properly include terms
requiring the Carrier to post positions, and the compensation they would
produce, which would be available to yard employees so that such employees
could make an informed election.
The Carrier responds that the possibility of yard employees
being affected by the abandonment which triggered the dispute is this
case is not only remote but somewhere between "slim and none." The
Carrier emphasizes that in order for yard employees to be displaced or
dismissed as a result of the abandonment in this case the Carrier would
have to reduce extra board road assignments. The Carrier argues that is
highly unlikely inasmuch as the amount of work performed on the
abandoned line by extra board was very small. Moreover, argues the
Carrier, the terms applicable to the joint seniority district would
require that adversely affected road employees first displace junior road
employees and then junior prior rights yard employees. The Carrier maintains that under these circumstances it reasonably cannot be argued that
yard employees "may" be affected by the abandonment of the Palacios branch.
FWTDINGS:
In Award No. 2 this Board found that the extreme positions taken
by both the Carrier and the Organization were inconsistent with the plain
wording of Article I, Section 4 of the OSL III Conditions providing that
the procedures of that section should apply to any transaction which
". . . magi cause the dismissal or displacement of any employees, or
rearrangement of forces, . . ." (Emphasis Supplied). We believe the
Organization's position in the instant proceeding falls within the scope
of that finding.
It must be borne is mind that for three years prior to the
Carrier's abandonment of the Palacios branch the only business on the line
was as occasional carload for a company at Bay City, Texas spotted by
an extra crew deadheaded from Victoria, Texas for that purpose. In order
for dismissals and displacements to occur among yard crews as urged by the
Organization, it would be necessary for the loss of the work on the
Palacios line to result in dismissals or displacements among the extra
board crews at Victoria. In view of the insubstantial amount of work
lost by the Victoria extra board crews as a result of the abandonment of
the Palacios line, we believe the Carrier's point is well taken that the
potential for dismissals and displacements among yard crews in light of
the merger of road and yard seniority is at least "slim." In fact, we
believe it is so slim that it does not reasonably fall within the scope
of the term "may" in Article I, Section 4 of the OSL III Conditions.
This is not to say that in the event a yard employee is actually
adversely affected as a result of the abandonment of the Palacios line,
that employee would not be entitled to the protections of the OSL III
Conditions. Clearly the conditions would apply. The procedures of
Article I, Section 11 of the Conditions are available to such an employee.
In that regard we are not persuaded by the Organization's argument
that an implementing agreement under Article I, Section 4 of the Conditions
is essential to effectuate the requirement that a dismissed or displaced
employee must exercise his seniority to an available position which
produces compensation equal to or greater than the position from which
the employee was dismissed or displaced. An employee who considers himself
adversely affected has the right to receive that information from the
Carrier, and the Carrier fails to produce that information at its own
peril.
In the final analysis, we do not believe the provisions of
Article I, Section 4 of the Conditions were intended to apply to a situation
such as the case before us where few if any employees are potentially
adversely affected by the transaction. We feel it important to note that
the situation before us in the instant proceeding is in stark contrast
to the situation involving conductors and trainmen. Those employees
have the very real possibility of being adversely affected because the
mileage of their assignments, and thus the basis for their compensation,
was reduced by the mileage of the abandoned Palacios line.
Thus we find in this interpretation of Award No. 2 that upon
the particular facts of the case only conductors and trainmen must be
covered by an implementing agreement pursuant to Article I, Section 4
of the OSL Conditions.
~ ~z~ ~ ~~ ~~
William E. Fredenberger, Jr.
Chairman and Neutral Member
DATED: ~~~.