.JoiiN B. LAROCCo
ARBnmATQR
2001 H Street
Sacramento, CA 95814-3109
The Union Pacific Railroad Company (Carrier) invoked the arhitsation provisions of Article XVI of the July 29, 1997 bnposed National Agreement after the Carrier and the Brotherhood of Maintenance of 'WayEmployes (Organization) reached impasse overthe Carrier's intent to combine and realign certain seniority districts. Tlsereafter, the Carrier and the Organization properly progressed their dispute to the undersigned neutral (Referee) for a decision ors its merits.
With regard to the second issue, the Cwrier urges the Referee to adopt its proposed implementing agreement.
The Organization asserts that the Carrier failed to demonstrate any operational necessity for combining and realigning seniority districts. Alternatively, the Organization submits that its proposed implementing agreement is appropriate.
Both parties filed pre-hearing submissions. They implicitly waived all the time limitations sot forth in Article XVl of the 1991 Imposed National Agreement.
BMWE v. UP
~~A carrier shall give at least thirty (30) days written notice to the affected employees and their bargaining representative of its desire to combine or realign seniority districts, including all carriers tinder common control, specifying the nature of the intended changes. The protection of the Interstate Commerce Act will continue to apply to all such combinations or real realignntezrts.
If the parties are unable to reach agreement within ninety (90) calendar days from the serving of the original notice, either party may submit the matter to final and binding arbitration in accordance with the terms of Article XVr.
Nothing in this Article is intended to restrict any of the existing rights of a carrier. BMWE v. UP Page 3
Pursuant to Rule 16(a) of the July 1, 2000 Agreement and Article X1I(a)(1) of the 1991 Imposed National Agreement, the Carrier notified the Organization, on August 4, 2004, of its intent to combine and realign portions of certain seniority territories into the Kansas City Terminal seniority division. More specifically, the Carrier sought to consolidate the following three subdivisions and one terminal into the Kansas City Te(TriiDal division:.
On September 8, 2004, the Organization asked the Carrier for additional information as well as an explanation of the operational needs that justified combining the seniority districts. The Organization also informed the Carrierthat combining the districts will adversely affect maintenance ofwayemployees in terms of compensation; increased travel time (and more time away from home); seniority; and, job security (including income protection).
In its September 21, 2004 reply, the Carrier explained that combining, and realigning seniority districts was necessary for efficient operations because the Carrier was having difficulty filling
BMWE v.
UP Page 5it sent a St. Joseph Terminal Trackman just 1 S miles outside his territory to help repair a track defect an the Omaha division.
Third, the Carrier will gain greater efficiencies in utilizing equipment. The Carrier points out that the low staffing on soave of the seniority districts means that employees cannot perform projects which require more manpower than, two track-men but are not of the magnitude to warrant calling a production gang manned by 10 plus employees.
Contrary to the Organization's representations, combining seniorityterritorieswitl have little adverse impact on employees. The employees will continue to receive the same compensation and th.eiraggregnteearningsmayactuallyincreaseduetopositionstabilization. The combined territories will not add significant travel time to employees. Indeed, the Carrier's proposed implementing agreement consolidates the four territories into two seniority divisions with the proviso that the Carrier can temporarily utilize gangs between the divisions when the Carrier is unable to rtll necdcd positions by bulletin. Moreover, the two new divisions cover a smaller geographic area than many existing seniority divisions.
Next, the Carrier's proposed implementing agreement provides for not only significant prior rights but also New York Dock style protection fox any employee who could be adversely affected by the seniority territory combination and realignment. The Canier stresses that these protective benefits go well beyond any requirement in any collective bargaining agreement.
In sum, any negative impact on the employees will be quite miniuial. On the other hand, combining and realigning the seniority territories is necessary for efficient railroad operations.
BMVVE v. UP Page 7The Carrier failed to show any justifiable operational necessityfar combining andrealignirng seniority territories.
The Canter created its own predicament. The Carrier's manpower shortage does not stern from the current boundaries of seniority territories but rather, was caused by the Carrier's deliberate decision to staff its railroad. with fewer employees than available positions. The Carrier is unable to fill all vacant positions because it is engaging in a reverse game of musical chairs. Instead of having more employees than chairs, the Carrier is maintaining more chairs than employees. More importantly, even if the Carrier were successful in filling all vacancies, it would not have enough employees to backill those positions vacated by employecs who bid for and are awarded the bulletined positions,
Assuming arguendo, that the Carrier came forward with justifiable operational needs for couzbining and realigning seniority districts, the Carrier's proposed implementing agreement is totally inadequate to protect affected employees from adverse impacts. In its September 8, 2004 correspondence, the Organization described the tremendous adverse effect on employees that wil l ensue after the proposed consolidation. The employees will incur reduced compensation, increased travel time, more time away from home and less job security.
In conclusion, the Carrier must maintain the current boundaries of the seniority territories. IV. DISCUSSION
The Referee recognizes that seniority is a valuable employment right to employees. Thus, these types of controversies are best resolved via good faith bargaining. Arbitration is likelyto yield
BMWE v. UP - Page 8
In Brotherhood of Maintenance of Way Employes and the Chicago and Northwestern Transportation Company, (Fletcher, 1991), Arbitrator Fletcher held that.the CIC's answer to Issue No. 14 created a balancing test. Arbitrator Fletcher wrote, "The balance, therefore, is between the degree of the benefit to the carrier and the impact upon the employees."
The first sid a of the balancing test i s wbeth erthe Carrier hcrcin has demonstrated a justif able operational need to combine and realign the seniority districts as delineated in its proposed implementing agreement.
In Brotherhood of Maintenance of Way Employes and the Chicago anti Northwestern Transportation Company, Arbitrator Fletcher specified that the availability of personnel and equipment are relevant factors which can constitute a justifiable operational need for combining and realigning seniority districts. In this case, the inherent nature of the current seniority territories causes the Carrier to engage in multiple position abolishments and multiple position establishments because of the impractical limits on where certain employees can perform necessary service The Carrier will also be able to make more efficient use of available track machinery because it will accomplish projects that are too large for one or two tracfcmen but not large enough to warrant the assignment of a 10-man (plus) production gang.
1n addition_ the Carrier showed an inability to promptly and effectively respond ;o emergency situations due to the way seal orityis disbursed among the various subdivisions in question. It is vital for the Carrier to have a sufficient supply of available labor to address exigencies to avoid both disruptions to train operations and a myriad of work assignment claims.
BMWE v. Up Page 10Forits part, the Organization did not substantivelyrebut thereasons that the Carrier proffered. for the seniority realignment and consolidation, except for its bare assertion that the Carrier has not met its burdeD o f showing justifiable operational needs because the Carrier ostensibly manufactured ashariage of employees. However, as the Carrier explained, the problem is employee utilization. due to restrictions on work locations that causes positions to remain unfilled as opposed to a short labor supply.
The Organization vigorously argues that affected employees will suffer great harm in terms ofa less desirable lifestyle as well as reduced compensation as aresult of the seniontyconsolidation.
While these dire consequences are unlikely to occur, the Carrier's proposed implementing agreement contains cushions which will soften, if not obviate, any adverse impact on employees. The implementing agreement contains particular priorrights provisions and ample New York Dock type protections.' Once the new seniority territories arc established, the Carrier should not have to bulletin and abolish positions as frequently as it does under the current seniority alignment. The reduction in position fluctuations should provide employms with greater stability grad perhaps, greater work opportunities which would translate into an increase in compensation. The employees anay suffer a minor adverse impact due to the construction of larger territories which might require, in some circumstances, additional travel time. However, under the balancing test, this minor adversity is outweighed by the substarutial economic efficiencies that the Carrier will attain through the seniority consolidation and realignment.
' The Rcteree concurs with the Carrier that New York Dock protection is net an essential component of epth and every Implementing agreecneat coaccraing seniority realignment and eonsvlidatiun. BE v. UP Page I 1
Jdhn B. LaRocco
Referee