BFFORF THE BOARD CAF ARBITRATION

BROTHERHOOD OF MAINTENANCE CAF WAY EMPLOYEES DIVISION,

INTERNATIONAL BROTHEHHOODOF TEAMSTERS

parties timely made their pre-hearing submission and the arbitrator held a hearing in Washington. D.C. on December 1 4. 101?. The record in this matter was closed after the last post-hearing submission on December ? 1, `'01 ?.

WHEREAS. the State of New York Department of'1°ransportation (NYSDO'h) obtained grants under PRIIA for improvements to the lines leased try Amtrak and other lines currently operated by Amtrak in the Atbanv District: and

WHEREAS. NYSDO t` is responsible fsar the employee protective conditions attached to those urants under 49 U.S.C. §?4405(c) arid Amtrak has agreed icy provide those protections its connection with the lease and improvements requested by NYSDO°r: and

1. Arbitration will take place: before a single Neutral Referee appointed b% the National Mediation Board. The parties; will share equally in the cost ofthe Neutral Referee.

2. The parties skill exchange. written briefs and evidence prior to the arbitration hearing according to a schedule determined by the Neutral Referee in consultation with the parties.

The record in the proceeding will remain "open" for the submission « f argument and evidence until the completion of the arbitration hcarinr or as otherwise directed by the Neutral Referee..;

Amtrak proposes irtclradirzg the atlchtional ierritor-c acquired lxi, leasefom CSt'T in eorxnectiorz with operation (#'the Empire Service as part e>/ the existing Albanty District covered by the 4greement ref Varch 1, 1976. as amentlE~d (Corporate t-Ir~jc°rrtrtta B_1lbVFGt proprrscs applicutiurt tttlreAgreemetzt at';Vfcrv 19> 19'6, ac amerztleii tNortrte asst Corridor .4,gr-cement) cis alrprftpriate for application try the af°clnired lh#es wzd cltcrrtges in ol>eruthrns corctcmt>lated bY the base urzlznrrnc°i~tlrcrrzis >irzrza New York State. bi'hich.lgreemcrzt sltoulcl appfv:'

fmaliced< any decision that tna\ be rendered at arbitration pursuant to this agreement shall not tae effective until the lease transaction between C SX I and Amtrak is completed and approved by the Surface Transportation Board.

FAG`TS

This matter involves the labor relations impact of the Carrier's lease of part of the Hudson line. defined below. There is no si-niiicant dispute about the background facts.

The Carrier provides passenger rail service thrott0hout tire United States. The Organization is the representative of the Carrier's rank and file employees in the maintenance of wav craft. Maintenance of way emplovFees erorm work. constructing, repairing, rehabilitating. upgrading, renewing. inspecting. arts.=car maintaining railroad track, right of way. buildings. and other structures.

The Carrier's operations tire different in the North East Corridor from its operations in the rest of the United States. The Carrier operates essentially conventional passenger rail service over rail lines owned and operated by freight railroads in the L'nited States. There is some hi,,h seed service in other parts of the Unite=d States, but it is not part of the Northeast Corridor. However. its main operation is in the Northeast Corridor (herein **NEC"), It provides frequent
service (many times per day) tat high speed fat speeds running up to l''5 miles per hour) along
the NEC and its feeder lutes. It operates a premier service. Acela service. at high speed with a
top speed o#` 150 miles per hour from Boston to Washin<g,ton. D.C. The Carrier owns virtually all
of the track and facilities in the NI=C. There are exceptions to the ownership of tote min line.
Fifty-five miles of NEC main line track are owned by the Ne~vv York and Connecticut
departments of transportation and -3? miles are okvned h~ the Massachusetts Bay transportation
Authority. The Carrier employs maintenance of cva,,, craft employees in its facilities. Outside
of'theNEC, these facilities tend to be isolated and employ a relatively small number of
maintenance of k~av employees. )X'ithin the NFC the Carrier employs a large number of
employees, The parties have two collective bargaining agreements. Cane agreement, herein
termed the -Corporate Agreement.-` Gras ne<.tctiatccl early its the pat-ties' relationship. It covers
the employees in the isolated facilities outside the \'f-(..`. There tare approximately 170 craft
employees within the scope of that agreetnent. l`he other agreement applies primarily to the
NEC. There are approximately 100 employees covered by that agreement.

The pre-existing services and properties xkhich are the subject of this dispute connect 'dew York City to Albany. The property in dispute goes from I loffrtans through Albany to I'ouahkeepie. °l"he service then continues over other carrier's lines to New York City. The line between lloftans and New York is referred to herein as the "f-lutlson Line.'" The Carrier operates conventional service from :'yew York through AlanN- to Buffalo and beyond throudm the area in dispute. l refer to the entire corridor between New York and Buffalo as the **Empire Corridor." It also runs ?6 trains a day (l 1 round trips) from Albany to New York.

The Hudson Lute is divided as flollovvs. The Carrier owns about 20 miles of track running from Albany to Ntiverville and lf) miles ot`yard and station track in the: Albany area.' In 1980 it leased from Consolidated Rail Corporation ('herein -csx"r**) about 44 miles oftrack from 1- loffmans running through Albany and ending at Stu-, vesatrt. This is referred to as the "l 90 Lease"" property. CSXT retained the next segment of property oaf about 48 miles of track from Stuyvesant to l'oudkeepsie.4 The Carrier has employed an average of about 15 employees stationed in the Albany area. Ordinarilv, 3 are assigned to bridges and building. `Twelve are assigned to track Nvork at all relevant times until the expansion caused lay the transactions which fire the subject of" this dispute. Their track work involves routine inspection anti maintenance. The area under Carrier management and the group ofemplovees regularly assigned to that area are herein referred to as the "Albany District.°` hhe Carrier has sometimes used its Albany District employees to perfcartm heavy repair; and upgrades. lout it has also occasionally done so with employees from the N EC cov=ered by the N EC aiarec pent. The Carrier has also called upon specialized cre-,N-s and heavy equipment from the NEC to perform specialized operations.

This the term the Carrier rises. It is also known as the -Off-Corridor A-rcement°" or the-Interim Agreement." ` It owns track tram Rensselaer to Niiverville ofabout 12 miles ~mhich is included in this tit-ure. This is known as the "Port LAne." Fhe maintenance of way kc>ork on this line ii pertorrmd tar= the Albany employees, taut the line is corrected to the Hudson route at onIV one point. " This is referred to herein as to the '"Nea Lease'" property because it was leased to the Carrier as part of the transactions in dispute. The 1980 lease contemplated that the Carrier v.ould lease property froth tr SX in the future from Stuyvesant to Pougltkeepsie.
-The remaining portion of the line running from l'owhkeepsie is essentially owned by the Metro-North Commuter Railroad (herein "MNR") and is operated as an instrumentality of the State of New York. The line runs about 5 miles into the heart of Manhattan at Grand Central Station. The Carrier owns the connecting, track between Grand Central Station and Penn Station in Manhattan. The MIN;f`future plans include more trains running through to Penn Station.

'The Carrier. CSXT anti tire New York Department of Transportation (herein N Y SDOT-) entered into a series oftransactions financed largely by federal funds to upgrade the infrastructure and serxice can the Hudson line. The purpose ofthese transactions and funding was to further the master plan for the NffC: reduce travel time ofthe Carrier's conventional

intercity service; increase the freuency of the Carriers commuter service tram Albany tro26

trains per day to 44 trains per da,- : and to increase the maximum speed along tire Hudson route from 90 miles per hour to 12- miles per hour. This was to be partially acc«cnplished by eliminating various "choke points;` and expanding yards, and other facilities. It also involves removing impediments to higher speed and to install facilities toy allow higher speeds to occur.

As part of tha series of transactions. the C'arricr entered into a new lease in Septetrtber. 20 1 1, with CSXT for a period of 'years v: ith an option to rene-v for 23 more y ears. 'The new lease incorporated and continued of the 1980 leased property and additionally leased the CSXT property from Stuvvesant to the end paint in Poughkeepsie here it abutted the MNR property described above. The Carrier became responsible for all of the relevant maintenance and upgrades can the entire leased lire. In another of thescrelated transactions. NYSDOT obtained a federal grant in September. 2011, from the Federal Railroad Administration of ~which S58 million was designated fior the matters in dispute. N YDt f` then contracted with the Carrier to provide the upgrades to the 1ldson line service provided in the grant and to tease the 'yew Lease property froth CSXT. The funds provided hit the grant were effectively to be used to have the Carrier convert the single track line can the 1980 Lease Property- to dual main line. 'The Carrier accepted responsibility under the grant to cansplv kith the labor protective requirement of the Railroad Revitalization and Regulatory Reform Act of 1976, herein ("-1R .Act"). 4-5 U~S.C~ 8-36 as imposed by 49 L'T.S.C. 2-4405(c>.' .1.13ose protections involve providing loth minimum economic and other benefits to affected employees and that the parties negotiate implementation agreements. 'The parties agreed to the minimum individual employee guarantees but disagree concerningg the terms to he included in an irnplen-tentation at-1reement required by those statutes.

POSITIONS OF THE PARTIES

ORCANIZATION:

'The implementation agreement negotiation/arbitration process tinder the 4 R Act is essentially the same as tire implementing agreement uc~,;utiatiorti`arbitration process imposed by the Surface Trasportation Board in railroad mergers. litre: sales. and leases under the New York 12gcA process.' Arbitrators developing implementing agreements under Section 4. of those

`'see footnotes 10 and I l below. `'` See footnote f tr and 17 below.

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conditions are to devise arranuements to ctt*ct the chm,_'es neCessarv for implementation ofthe

transaction. I-Itoe awards may involve modifications of the collective Oar"alluno agreement.

The NEC ai.'reement should he applied to the Iludson line territor- and the Albany District facilities. The main reason is that the Iludson Line will now be connected to the:. NEC. 'The Carrier's own documents list the EIuson Line us part ofthe NFV. Even it it did not. the Carrier`s plats. the State of Nevi- York's plans, and the: Federal Rail Administration's plans ( herein "FRA"). all militate strongly in tai car Of including in the NEC Agreement. Now that the Carrier is actually in control of the improvement and maintenance of that line. it should necessarily he covered by the NEC Agreement,

The type ofservice on the line supports placing the Hudson Line under the: NEC ALreement. The Fludson Line is the second highest catei:orN- ofCarrier train frequency. The IfudsOn Line is already a higher speed (ire f90 \111 I maximum:) that will soon be improved for even higher speeds reaching the definition of'high speed" t I lff NIPH). 'There is a commnnalitv of the type of work maintenance of x,,ar enmplwQes will be doing in the Albany District with that done by emplouees in the NEB°.

The parties' oNxn practice has been to include newl\ acquired laCilitieS under the NEC Agreement which are connected to. or otherwise related to>~the NEC. rather titan the Corporate Agreement. `This dais demonstrated when the parties included the properties the Carrier acquired into the :SEC agreement of the Washington- D.C. terminal. Lorton. Virginia. :'auto-Train facility and the Atlantic City Line.

'The express language ot`the Part I3. Article IC ofthe NEC's Scope provision states that the Scope Rule will apply when the Carrier assumes responsibility to maintain a property that it does not own. This situation falls squareb within the purpose of this rule. The NEC Agreement applies to about 1800 craft employees whereas the Corporate Agreement applies only to about 170 craft employees. Those latter employees are in isolated areas.

'There are reasons why the Corporate (Otf'Corridorf Agreement should tot apply. It ,vas neuotiated by the parties before the Carrier obtained the FC. It was entitled ors an "interim" agreement and it was so intended. It vas intended to apple only tot the odds and ends of the Carrier's craft work force. The operations of'those areas are. f`ar different than the NEC and I-ludson Line operations. 'The routine maintenance work. rehabilitative maintenance and construction work is different on high frequency. high speed lines.

The NBC Agreement is superior to the Corporate Aoreernent with respect to dealing with contracting cut issues. `The; Corporate Agreeirient merelN- requires notice by the Carrier of intent to contract out and discussion with the Organization. The NEC.' agreement defines craft work nnore clearIy. has definite prohibitions ohcertain types of contracting out. and provides star arbitration of contractIing taut disputes. Over the last three decades. there has been a substantial erosion of craf work and explosion of contracting out. It is ofthe utmost importance for the Organization to have rules which protect the work ofthe craft as much as possible.

'The Carrier may arLue that it needs to have broad contaetinLout authority because of the

mafLln)tude of the construction and improvement work required khv the transactions in dispute. I lowever. the NEC Arecment~s contracting out provision allows four exceptions.
In the negotiations to resolve this issue the Carrier stated that it did not want to ramp LIP the size of this unit because the work wiIl he clone in five \,cars. IlokvcNer. it i> likely that there "III be substantial attrition due to retirement in the NFC. (n am event. the NFC Agreement has adequate provisions to allow- fear the reduction in the sire ofthe :ylban~, District. I lowever, the issue is not just which agreement applies now. brut which agreement will apply for the decades to come as the Hudson line is improved.

The Carrier's argument that the Corporate :Xgrec meat should apple because it historically hay; applied is without merit. The Corporate :lxarccment applied tea the ,Albany District only because at the tithe it was created it was an isolated unit. Since that time it chan~ed dramatically.
It will change further with the current transactions. It will become even rnor indistinguishable
with future chant,-es.

The. Or~anization notes that in order to place the Albany District in the NEB' :'agreement. the parties will have, to create: a new seniority district and work zones in the NEC' Agreement. The: Organization proposes to amend Rule 14 of the NEC .~-i!rcernent to acid the fc~Ilouin,,~:

new semoritv district is established t«r the territory leased bv Amtrak from CSX Transportation kno\\n as the East Hudson lire (the fines between ffoffmans and Poughkeepsie. New York. and all facilities of the C'SXT can the `Past Roadline between Niverville and Rcainsclaer. New York) and the lines stations and facilities currently owned by Amtrak in the Albany/ Rennselaer area including all track. shops. stations and yards. This new seniority district will be known as the

Albany/east the

There6Hudson district. lhc~rc:ill be two work zones within that district: a north zone (lines and properties north and -,vest of AIhany I and a sought zone (lines and properties south ofAlbany 1.

The Organization also proposes to add the following to Rule 89:

Units established under this Rule may- be assigned to v~oron the Albanyteast Hudson district.

CARRIER:

I.he maintenance of wa employees have al x~ays been covered by the current agreement. The current agreement was negotiated based upon the fact that most ofthe employees would come from freight railroads, Bv° contrast. the NEC Corridor agreement was negotiated for the takeover of the main line from Boston to Washington. Vleanwhile the ri,,hts and benefits of all of the employees in the Albany area have always been controlled by the current agreement.

There is n o legislative basis for the request of the Organization. Section I of the Grant agreement is focused can keeping the CURRf:N 1` agreement in effect. Section 3 (if the grant agreement maintains current levels of protection. There is n o basis in this fear the application of a different at,-reernent. Neither is there a basis under the -f R Act. 45 Lr.S.C. 8 36. As noted. the Carrier has agreed to provide protective benefits under Paragraph l3 of that statute. The

6

Oruaniation may ar.:uc Paragraph C ofthat statute applies." However. the Carrier has follwved the terms of the existing subcontracting provisions of Corporate skg'reemet, Mule ?4. No Carrier employees will be aversel,\ affected b\ these transactions. There is no transfer of C SAC crnpiovees and. therefore. no existing employees are being piaced under less favorable conditions.

The Organization's request to change the agrecnrtcnt application through arbitration

iolates the Railw°av Labor < ct f'°II..R"n). Fhe LA requires that parties maintain their agreements and that negotiation of the provisions of those agreements be handled under Section 6 of the Act and it is contrrv° Section I ot'the Oram Agreement that requires the parties to keep agreements in effect.

Changing agreements could put restrictions on subcontracting which were negotiated ill the NFL` ta-reernent in I98T It is inappropriate to a\pand those restrictions outside the NEC corridor. T here restrictions \vere part of a qtdicil)rrt) tlrao cxchany-)e fir eliminating, the Minimum Force Agreements which had been in effect until then.

The (r~anization is attempting to do this expansion solely f°r the benefit of its EC employees and at the expense of Amtra"s abilit, tee timer meet its contractual commitents. Arbitration panels have long been held to not have: the authority to change the agreements they administer.

There is no operational reason to alter the agreement. The Organization proposed incorporating this unit into the NEC Southern district and to e,rant the cpio~,ees in this district seniority rights only to their specific position:. -1 his is not operationally feasible. The Carrier has in the past placed certain newly obtained locations into the NEC agreement when the parties voluntarily neotiated it and it made operational sense. f fcaN-evera it does riot make good business sense to do so in this situation. This territory is separated from the NEC by C>5 miles of the MNR. There has always been sufficient work here to lustily a dedicated work force. In fact. the new track will require the addition to the work force. We could not use the New York eployees on a daily basis because they are l 4(l miles away. And movement of equipment would require operation over :MNR. This would require special permission.

DISCUSSION

t . Authority`

(one main issue between the parties is whether I have the authority to adopt the NEC .,1greement and/or the other aspects of the Organization's offer. The Carrier accepted responsibility under the lease from the State of New York to comply with the employee protection requirements specified in the Passenger Rail Investment and Improvement Act (herein _.pRII'); specified in 49 f?.S.C. Sec. ?4.405 fcl`' Fhese provision incorporate the employee

The provisions are quoted inn notes 10 and I 1 below.
The parties agreed that 1 would have the ianal anti binding authcritv to determine whether t have jurisdiction to -rant the request of the Or-artizatiOn.
49 U.S.C. See. '.t.t05 lc:)(1 J Prov ides 1 1t relevant Part:
protective conditions <>f'the R ca. - l .`.`. Section 36.=~' (one of`the expressrequi-1 of Sec. 4405(c). itself. is that the Carrier beep , .. . . coliectikc hargaining agreements . . . in full t'orce and effect.- The application of this statutor-, pro\ ision is arniguous its this dipUte. There are two relevant collective hargaining ageements which ar.tttabfy applN to tire CSX I`

(C)an assurance by the railroad that collective bargaining agrea:nents xc ith the railroad"s employ ees (including terms
regulating, the contracting of %vork) t vv ill rcnaain in full lorec and effect according tea their terns for work performed
by the raiiroad on the railroad transportation corridor: . . . .

-i9 F=_S.C, Sec- 24405tc)(2) provides in relevant part:

(lr3)the protective arrangements established cinder section _504 ofthe Railroad Revitalization and ltetlulatorv Reform Act of 1976 t4i U.S.C 8130) ~xith respect to etnplovccx affected by actions talon in connection with tile project to be financed in whole or in part by grants under this chapter. ''-~5 U.S.C. Section tuft provides in relevant part: al General Fair and equitable arrangements shall be provided, in accordance ~~ ith this section, to protect the interests of any emplovees not otherwise protected under title 1` of the Regional flail Reorganization Act of 1973 (4:~ 1...C. i 1 et seq.). who may be affected by actions taken pursuant to authorisations or approval obtained under this subchapter. Such arranfcements shall be determined by the execution of an aureement between the representatives of the railroads anti the representatives ofthcir employees, -,vithin 120 dad; after February 5. 19?6. to the absence of such act executed au-reement, the Secretary of Labor ~,ltall prese:ribe the applicable protective arrangements. within l?Cl days after Fclaruarv 5. 19?b. (tt) Terms The arranLiernettts required by sul~sectit~tt (a3 ofthis section -hail apply to each employee who has an eplovrnent relationship with a railroad on tile date oft which such railroad first applies for applicable financial assistance under this sabcltapter. Such arrangements .,hall ill, lude such provisions as nta~, be necessary for the negotiation and execution of agreements as to the manner in which tile protective arranvretnents shall be applied, including notice requirements. Such agreements shall be executed prior to implementation of work licnded front financial assistance under this subchapter. if such art agreement is not reached within 30 days after the date oil which all application for such assistance is approved. either fart to fife dispute nta submit the issue for final and bindint, arbitration. The decision on any such arbitration shall be rend,:red within :El dais tatter such submission. Such arbitration decision shall in no way mollify the protection afforded ire the protective arrangements established pursuant to this section. shall be final and binding oft the parties thereto, and ,hall become a part of tile agreement, Such arrangements shall also include such provisions as may be necessary-(1)forthe preservation of compensation (including Subsequent general wag t: increases. vacation allowances. and ntonthlv compensation guarantees). rights, privilel-les. and benefits (Enc ltldinE_ frins_e benefits such as pensions, hospitalization. ;end vacations. under the same conditions and sty ionu~ as such benefits continue to be accorded to other employees of the entployink, railroad in active serv ice or oft furlouwo h. its the case may be) to such employees under existing collective-bargainin=, agreements or other,,-. iss; (?)to provide for final tend binding arbitration of any dispute which cannot be settled by the parties, with respect to the interpretation. application. or enforcement of the provisions ofthe protective arrangements: (3)to provide that an employee Mho is unable to secure employment by the exercise of his or her seniority rights. as a result of actions taken with financial assistance obtained under this subchapter. shall be offered reassignment and. where necessary. retraining to till a position comparable to the position held at tile time of such adverse effect anti for which he is, or by training and retraining can become. physically- and ntentallv Clttalitiecl. so long as such offer is not in contravention ofcollective baruainin t- aareements i%;latin~4.: thereto: arid t4lto provide that the protection afford=ti pursuant try this section shall not be applicable to employees benefited soleLN as a result of the work which is financed by funds provided pursuant to this sullchapter. (cj Subcontracting . F he arrangements which are requited to he negotiated by the parties or prescribed by tile Secretarv of Labor. pursuant to subsections ia) and (b) of this section. shall include provisions regulating subcontracting by the railroads of,work which is financed by funds provided pursuant to this ~*ubchapter_ v
property: the NIC Agreement Lind the Corporate Agreement, " fe Carrier essentialiv contends that the Corporate Agreement automatically applies to the CSXT property because it applies to 390 Lease Property unto automatically extends to the contiguous newly I-eased Line.'' The Orttanization contends that the NET A4Lreernent's Scope provision autonaaticully extens that agreement to apply to the lludson Line property (CSX T property and existing Car-ir:r-o"ned property) because circumstances have chrtnoed.' The dispute over this atnbitgwitv is a dispute between the parties cNithin the meaning, oC Sec.?-l405(c) s to lNititt it paeans to keep the "collective br~,taininagreements" in "tall l«rce and ct'tcct."`' It is within the parties' submission.

The tact that the parties have t\.,No collective bargaining areements covcrino employees ~xho have \vorked in the Albany area creates another tahi_ttOttS situation. -I5 C'.S.C. 836 (c) requires that the parties negotiate '-arrtngernents- about the work which is financed by funds provided pursuant to this ::uhchapter." I he Carrier contends that this provision extends protection only to the current Albany District employees and is limited to applying only existing contracting, out provisions. L'ssentiallv, it ar;(-:ues that it should he free to contract out the neA work as it has been in the past. The Organization contends that the interests to be protected are those of the employees in the \,L:C who have occasionally- been called upon to do projects wich require specialized crews or laruer crews. It also aruues that the interests to~ be protected ire those cal' current anti future ena~lo~ees hired in the Albany District. It also contends that the new work will be new construction neat norinall\ done hv the Albany District employees and ofa greater amount thin existing employees could do. In its view, the statute authorizes an arbitrator to increase contracting taut protection to protect the craft's right to the new work. Statutory construction demonstrates that the proposals ofthe Oranization are arbitrable. First, the statute emphasizes the issue of contracting, taut over other collective bargaining issues. Second. it emphsizes contacting Out provisions over the work to a financed rather than merely keeping in place existing contracting out provisions. I conclude that the dispute is fully arbitrable under the submission agreement.

The Organization is alterrtati~-elv asserting that its proposal try apply the NBC Areement to the I-ludson Line is within the scope ot`the Board's aUthorio irrespective ofthe Scope provision ofthat agreement. :\s noted above. 49 lf.S.C. 24-1-5 (c) (2) requires the parties to negotiate and arbitrate, if necessary. the "protective arrani-jetncrts- required by the 4 R Act '"with respect to employees affected by actions taken in connection with the project to be fnanced in whole or in part by grants under this chapter." These are et'tectively the New York Dock conditions that ckere established by the Interstztte C,tnarnerce Commission. The Surface Transportation Board discussed the history of arbitration (A'protective ,arrangement" disputes

~' There were no tv SX employees regularly assigned to thi:, stsecitic property. there is no dispute that the issues as
to those employees anti as to the CSX collective bargaining a<xreenient covering them have been resolved and are
not part of this arbitration.
'` It alternatively ntav tie amuitttt that it has the unilateral authority it) do so because it has nu obligation to bargain
u ittt the Onaanization or the (.fir<-,anizaticsn has ts,- the terms ofthe Corporate Agreement waived the obligation to
bargain over the accretion of the CSX property. I note that k~-erc the Carrier to concede that the subject would still
tie a tatter of bargaining tinder the Railvva., Labor Act, the arbitration provisions in dispute are diesigtted to bring
,etch implementation disputes to a evpedniutts resolution. See. CS_X...and Seaboard Coast Line, etc.. ; S.T.E3. 901,
910 (1 t)98 j.
`` 'the OrLanization is also alternati-elv assertirt- that it has collective bar-aininriy-his to neLotiate that result. Fhe
authoritN to arbitrate that dispute is discussed below.
' z 'l-his is true even if the resolution in~ctlv°es making the changes which are ordered herein. 1 hose changers are
merely to adapt them to changed circumstances, `gee page __i of' -1 ofCSX, srq>ra.
New York Dock Railway. 360 1.C.C. 660 (ltt?Oi

_ 9

and concluded that arbitrators have the broad atzthorit-, to modify existing, collective bargaining
agreement so long as the modifications wire "necessaryry* to carry out a transction.' ` The pat-ties
a{uree that the main issue presented herein is effectively what contracting out provisions should
be adopted. The Organization's contentions cited above are argualy necessary to meet the
,stattttttrV contracting cut objectives arid to protect the interests of the broad range ofeplo\ees
in both tire Albanv District and the entire NE-C. Irrespective olithe Scope e provision of the NEC
Aureetrtent. this dispute is arbitrable tinder the submission agreenncnt

Tire Carrier's aroitrnent that the requirement for ernployee protective conditions shottld be deemed alreadv satisfied is x~ithout merit. In its vie,.v. since they are allegedl- satisfied. the arbitrator hits no authority to ti,,varci the C)r<ganizations request. The employee protective conditions were a condition precedent to the federal Railroad Administration making the grant in dispute. fhe parties executed ti satisfactory agreement concerning: the protections of individual employees. ilok):ever. the parties continued to disagree about tire -implementing agreement" and did not reach a<treement. Thereafter. the ie.t~ completed the grant. It arues that since the FRA no longer withheld the grant. that the FRA must litre concluded that all of the protective requirements were met. Tire tact the FRA allc,,,,cdlv vaked the condition precedent nature of those provisions does not mean that it concluded that all the requirements were et. They still remain a condition is condition subsequent). f he tact that tire FRA suggested that this dispute be arbitrated is sufticient evidence that they diet not waive those conditions. t conclude that this matter is fully arbitrable under the submission at-:reernent.

?. Standards

The ()r-anization correctly aruues that the nature ofthis dispute is primarily day interest dispute.'rv This concept is recognized iii .'fort(,-)lk.str[~ra arid CSX. suj)ra.' Under f°SX,

suora.

arbitrators of disputes concerning the required arratag
Zlettents may, ztke changes in the parties' existing agreements necessary to accornmocltite the transactions but not in a txianner inconsistent -with the protective benefits required by lacy.. The oilier standards which are custornarily° applied in interest disputes and that are relevant to this dispute are.-

I . The express at, reemetits of the parties:

?. The parties' reasons for their proposals;

i. l-lie bargaining history ofthe parties:

.4. The parties' own practice under similar circumstances:

5. The industry practice under similar circumstances:

The public. policy as expressed by Congress in the guiding statutes; and ?. The totality, of the sc heme of reuulation.

f liese standards are aplied below,

Merits

~~'CS X. et a1., 3 S.TR ?01, 7 1 1-'?1 3 t 1998) that decision flmsecf from Niortolk and Western Railwtt~ Con.atv r~.
:t rtrieatx Train Disp?tclters Association. -t99 tJ.S. 117 t 19
1) ~T.An" interest" dispute is a disptttc to establish neu or changed agt:emettts between the parties, A "riftts" dispute is one involving the application or entorcecttettt of'those a,;Yrcenaents. S, See note 1 6.

1 t)

ca. Nemlc Leased CSX It Property

I 'he New 0v Leased Property. P01,11-Iikeepsie to Stuyvesant segment, is properly under the

NEC A_Lroeient as a result ofthe chanied cireurnstariccs occasioned hy ail oftte transactions in
dispute. The Scope proN ision ofthe NEC Aoreernert requires that the parties consider applying
,the NEC agreement when the Carrier leases nev, propertk. l he Carrier is correct that it does rot
automaticallv make the NEC .Agreement applicable. The parties halve negotiated applying the
Nl,C.' Aareetnent to aceretions along the `-I=C Corridor. Nonetheless, kkhen the Carrier leased the
1980 leased property the parties slid not ;apply the NF'C Agreement to the Albany District ex=ert
thouh the `cope pror ision of the Nf'C Aureement was identical in this respect.hhe reason fi(
that is that the Alhunv District,gas reiativelv isolated and the f-Cuson line ryas not art inteooral
part ofthe NEC.

The circumstances have since ehatwed. It is appropriate to place the Ne\N ly Leased property under the NE: C Agreement. I-he I Iudson Line is directIv connected to the NEC."' The Carrier has listed the I ILldsott line as a rmajor feeder. it'not a direct part. of theNEC. Fhe service nou has been uptjrded since 1980 to> luther speed (9t) ntph). !t is frequent service between Albattv and Nexv York City. The ;addition of the nex~, leasehold and the: revision of the 1980 lease give the Carrier control over the past majoritN of the maintenance and develpment of the Iludson Line. The Hudson Litre is a \:ital part OftheN(=C because it gives a large part of the State of Niew `Fork nearby higher speed access to the NfJC.

The changes made by the grant in dispute to increase the train line from carte track- to two tracks in the 1980 lease area will increase the effcienc\ ofthis area. Ether likely improvements w=ill increase the capacity talon. the Hudson line.

The Carrier and other interested parties' ~Xottl or the iludson litre are: to increase the

f'requeney of service between Albany, and Nekv York City fronn 13 daily rc)undtrip local trains to
?? roundtrip local trains and to increase the maximum speed in the Hudson from m 90 MPII Lip to
110 MPIL These are likeIN to occatr. The I IUdson lire is thus likely to become an even more
Important part ofthe NE(, `. Vrder these circurnstnc:es. the Ihtdson Lire is much like the
Ilarrisburg and Springfield Litres which care under the NfC Agreement. The Carrier's arguments
are tnainlv based on histor- and tire ottMei-hed b- ,-the fundamental chanacs in circumstances,

Cotatraetino Cut

hhe train reason that the f)rj,,1,anization seeks to apply the NEC Agreement is that it contain a contracting, cut provision that is more restrictive ofthe Carrier's right to contract out craft work than the Corporate Agreement, This is the main paint ot'disagreernert between the parties.

``` Hie t-act that the M NR owns about 65 cnile~ of the Hudson line is consistent with the ok nership of other parts of the \EC mainline b~- other cornncner milrauds. -f fee interest.,, of the eOMMccter railroads and the Carrier are ,uffic:iently aligned in the passenger operations that ;he caw nership is consistent with the conclusion that the I-tuc34on Line is part of the NEC,

ll

Rule -4 ofthe Corporate Agreement apptics in relevant part only to the Albany District employees. It requires that the Carrier notil', the Organization of any- plans it leas to contract cut \~ork and to meet vxith the Organization try attemt in good faith to reach agreement can the natter. If there is no a,reement. the Carrier is free to contract that work out. Bv° contrast. the NEC' Aiyreement Scope provision which restricts contracting Out kkOuid apply to employees beyond the Albany District if it were adopted. It "oUld ;apply t« specialized crews ~vhmight hake sills to do the construction cork contemplated. v'hile the pro\ ision recognizes that it rnav be neeessarv for the Carrier to contract out large projects to achieve prompt completion, it requires that ifthe meeting process «fthe tNpe used in the Corporate Agreement is till success fu 1. the Organization may submit cctntrat;tinL= Out disputes to a Special Board of Adjustment for arbitration.

The more restrictive terms sou~t the F>rmnization are; consistent with the public polio as expressed y Congress in the requirement that the '-arranL)emcnts'" required by 45 C ..C `gee. 836 include terms with respect to contracting Out. I conclude that bpi emphasizing the contractinu) out issue over other possible terms that could be included in the required -arrangements C"c~nrss recofnized that the additional financing could lead to unforeseen problems. Second, taken with overall' purpose ofthe structure ofreqUiring that the parties resole issues concerning " arrangements.- Congress demonstrated its concern that funding not be used as a vehicle to undermine an cxistina collective harooainin~, relationship. The= current NEC Agreement provision already reflects reco(nitic>n that contracting out big allowed to meet other requirements of funding, namely handling projects too bid fir the bargaininY unit to handle and projects which cannot be handled quick-IN criou,41h.

The circumstances have changed such that the current lan4.:tuage is inadequate to protect

existing employees in the long run. The new funding requires construction of neN& track which is
specifically covered under the contracting out provisions of the NEC' Agreement. Other projects
go beyond the work which Albany L)istrict entplo, ces have historically performed. In the future.
it is likely that the amount of maintenance work swill increase and the sophistication of the
maintenance work will increase with hiLher maximum speeds. The ne-\v language will strike the
appropriate balance between the interests of all craft enzplovees in protecting maintenance of
way work opportunities and the Carrier in performing g the work in a titnelyand cost-effective
manner. The former agreement will neat.

The Carrier's concern that under the NEC language it will have to expand the unit and then contract it once the work is done. i:; without merit. First. art expanded unit will be available to perform projects along the entire Empire Corridor. Seconnd. there is significant retirement turnover in the NIC and and- surplus employees are likelx to be absorbed in the NEC by attrition. Third. both agreements provide adequate prop-isions to.>r the layoff of eaiplo-y ees shOeild there be a need to do sa. Finally. the Carrier can give prospective newrernployees a lair ~vyarnint; fits interview process. The better vief~ of the evidence is that the restrictive Ian>ttaue will live rise to a better and more flexible cork force over time:. The contracting situations still require

I,

cooperation y the Organization it` it ~Nants it) n naximire tile work available to tile employees it represents and to nervy employces ivho could be added.

Finally. the Carrier's argument that the contracting out tile ntorandunt should not be extended to this unit because it was a product ofquitlphcx (11111) bargaining tea replace: a preexisting minimum manning, CLIUSC is without merit. The 111inintUrn manning provisions were most likely added to the aareernent because of the ettplo~ee protection requirements in effect at that tine. In short, satisfaction ofthe contracting out ttttployec protection provisions which are the subject of this dispute are an appropriately similar quicipro quo for the application of the NEC Agreement's contracting provisions. I he 'Iernorandurn itsell`rellects that it applies to f'ederallv funded Nork. This stwoests that the minimum nrannin I; was created in response to employee protective provisions. Fear all the reasons specified above. the application ofthe NEC' N~,,rec:mcnt's contracting Out provisions is necessary and appropriate to deal with the new circumstances,

c. Remainder of Albanv District

The efficient administration ohcollective bargaining, agreements requires that the

ctttplovees of the Albany District be tinder the ;tin ne agreement. Fhe parties agree that the main
work force mill be the Albany District employees. Accordingly. it is a practical necessity that
all of the Albany District properties administered b~, the Carrier be under the carne agreement.
Accordingly. I direct that the: EC Agreement be applicable to all ot`the Carrier"s properties in
the Albany District.

The parties agreed that it was necessary to address seniority issues in order to apply the

i

NEC Agreement to the Albany District. The C,trt-ier is correct that the Albanv Distrct must be a separate seniority district under the NEC A--reennent_ not,;ust a work district. The Organization has proposed that it he both a new serrioritN district (district 6 cr) arid a separate work district. The orL)anization' proposal is ad«pted as specified in the Award herein.

-The NEC collective bargaininu aoreentent shall apply to the lines leased by the: Carrier. It is necessary in order to implement that agreement to include till Carrier oGvn eci or leased property in Albany area as described in the addition to Role l-l below tinder the NEC Agreement.

Rule 14 of the NC:C ;Agreement shall be amended to add the follmvirtg,:

A new seniority district is established for the to rritorv leased by Amtrak fro CSX Transportation known as the East l-lttdson line (the lines between floffinians and Poughkeepsie, New York- and all facilities of the CSXT c?n the 'Post Road" line between Niverville and Rennsclaer. Nexk York) arid the lilies stations and facilities currently owned by Amtrak in the --klbany,Rennselaer area including, all track. shops, stations and yards. This rietv seniority district will be known as the

.,XIhttny/east Hudson district. There xkill be mo work zones t~ithin that district: a north zone (lines and propet-ties north and t-\cst oi'A3bank j and a south ZC)r3C (line and properties south ot4AIhan\).

The Organization also proposes t<> add the tollov~int,, to Rule 9:

C: nits established under this Rule ntat fie assn-ned to twrk can the A1bam:"cast 3 Iudson district.

at Sun Prairie. Wisconsin. this l3#h day oi'.Iarruur-,. -11

Stanlcy II. Mie: eIstetter rI. Arbitrator