ARTICLE 35

TRANSFERS & PROTECTION

A. 1. Applicable to Southern

When yardmen are transferred from one point to another for the convenience of the service, their families and household effects will be transported free.

2. Transferring to Other Yards - Applicable to CNO&TP, AGS and NOT

a. When, in the judgment of the officer in charge, it becomes necessary in a certain yard to employ additional yardmen, preference shall be given the senior furloughed yardmen in other yards covered by this Agreement if they desire to transfer. To aid in carrying out this Agreement, the General Chairperson will furnish the name or names of furloughed men who desire to transfer, when called upon.

b. Employees taking employment in another yard, under this rules, will be given seniority at point to which transferred as of the date they first perform service in such yard.

Such employee shall accumulate seniority at such away-from-home point, as well as at home point, unless and until he has an opportunity to return to service at his home point, in which event he shall option as to whether he will remain at the away-from-home point or return to home point. If he returns to home point he shall forfeit seniority at away-from-home point, and if he elects to remain at away-from-home point he shall forfeit seniority at home point.

c. It is understood that employees who are working at away-from-home point may accumulate seniority under Paragraph B. thereof at only two points, i.e., their home point and at the last away-from-home point at which employed, and when transferred from one away-from-home point to another they thereby forfeit seniority at all other away-from-home points except the last at which they worked. Similarly, if and when they work at home point, even if only for one day, they will forfeit all seniority at other points.

d. It is further agreed that employees taking service at away-from-home points will not be paid for deadheading to and/or from such home points, and there will be no expense to the Carrier in connection with the matter of employees transferring from one point to another.

INTERPRETATION: When yardmen are working at an away-from-home point and it would be an undue hardship on them to require and election of seniority because of a vacancy other than permanent occurring at the home point. Therefore, only a permanent vacancy at the home point will be considered "an opportunity to return to service" at the home point. When a permanent vacancy occurs at the home point, the senior furloughed yardman will be notified and must report for duty there within 15 days. If he does not report for duty at the home point within that time, his seniority at the home point is automatically forfeited.

For purposes of this interpretation, a "permanent vacancy" at the home point is one resulting from retirement, resignation, discharge (not suspension), death or adjustment of the Extra Board.

Paragraph c. is not affected in any way by this interpretation.

B. PROTECTION OF EMPLOYEES (Article XIII of the January 27, 1972 National Agreement)

The scope and purpose of this Article are to provide, to the extend specified herein, for fair and equitable arrangements to protect the interests of certain of the Carriers’ employees represented by the United Transportation Union, who are adversely affected by the application of Article VII - Interchange, Article IX - Road-Yard Movements, Article XII - Interdivisional Service of the 1972 National agreement, and Article IX - Interdivisional Service of the October 31, 1985 National Agreement; therefore, fluctuations and changes in volume or character of employment brought about by other causes are not within the purview of this Article.

1. Definitions

Wherever used in this Article, unless the context requires otherwise:

a. "Implementation" means the application and implementation of the provisions of Article VII - Interchange, Article IX - Road-yard Movements, or Article XII - Interdivisional Service of the January 27, 1972 UTU National Agreement (as amended in Article IX of the 1985 UTU National Agreement).

b. "Displaced Employee" means a Carrier employee represented by the UTU who as a result of an Implementation is placed in a worse position with respect to his compensation.

c. "Dismissed Employee" means a Carrier employee represented by the UTU who as a result of an Implementation is deprived of employment with the Carrier because of the abolition of his position or the loss thereof as the result of the exercise of seniority rights by an employee whose position is abolished as a result of an Implementation.

d. "Protective Period" for employees covered by Paragraph 2.a. below of this Article means that period of time during which a Displaced or Dismissed Employee is to be provided protection hereunder. The Protective Period for such employee shall extend from the date he is displaced or dismissed for a period of time equal to the length of time which such employee has seniority in the craft or class at the time he is adversely affected. In no event, however, will the Protective Period extend beyond the employee’s 65th birthday. Where an employee holds seniority as a conductor and brakeman or yardman or as an engineer and fireman, the earlier seniority date shall govern. In the event such a displaced employee elects to remain in the Carrier’s service after the first day of the month following the month he attains age 65, he will no longer receive any of the protective benefits of this Article and the Carrier may terminate on the same seniority district the protective benefits then being provided the junior Dismissed or Displaced Employee receiving protection under this Article on such seniority district on a one-for-one basis.

e. "Protective Period" for employees covered by Paragraph 2.b. below of this Article means the six-year period of time from the date such employee is dismissed but not to exceed the length of time which such employee has seniority in the craft or class at the time he is dismissed. Where an employee holds seniority as a conductor and brakeman or yardman or as an engineer and fireman, the earlier seniority date shall govern.

2. Coverage

a. Subject to the other provisions of this Article the protective benefits of Paragraphs 3., 4., 5., and 6., of this Article will apply to:

(1) Employees adversely affected directly or indirectly by an Implementation of Article XII - Interdivisional Service (as amended in Article IX of the 1985 UTU National Agreement).

(2) Regularly assigned employees assigned to yard crews that regularly spend more than 50 percent of their time in interchange work who are adversely affected as a result of an Implementation of the reciprocal interchange provisions of Paragraph 5 of Article VII - Interchange. (such employees will be determined by a joint check based upon the work performance of the involved yard crews for the 30 working days prior to the Implementation).

(3) Regularly assigned employees assigned to interchange or transfer crews adversely affected by the interchange of solid trains provision under Paragraph 1 of Article VII - Interchange.

(4) Employees of Terminal Companies adversely affected either directly or indirectly by the interchange of solid trains provision under Paragraph 1 of Article VII - Interchange.

b. Subject to the other provisions in this Article, the protective benefits provided in Paragraphs 4. and 5. of this Article will be accorded to any employee of the Carrier adversely affected by Article VII - Interchange, other than those covered by subparagraphs (2) and (3) of Paragraph 2.a. above of this Article or Article IX - Road-Yard Movements.

c. The protective provisions of this Paragraph as applied to Terminal Company employees will include, in addition to the above, the exercise of seniority and acceptance of employment on the involved line-haul Carrier, engine service employees being required to accept engine service employment and ground service employees being required to accept ground service employment. The involved line-haul Carriers will make appropriate arrangements in connection with subparagraph a.(4) of this Paragraph 2. and the foregoing.

3. Displacement Allowance

a. So long during this Protective Period after a Displaced Employee’s displacement as he is unable, in the normal exercise of his seniority rights under existing agreements, rules and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, he shall be paid a monthly displacement allowance equal to the difference between the monthly compensation received by him in the position in which he is retained and the average monthly compensation received by him in the position from which he was displaced.

b. Each Displaced Employee’s displacement allowance shall be determined by dividing separately by 12 the total compensation received by the employee and the total time for which he was paid during the last 12 months in which he performed service immediately preceding the date of his displacement as a result of the implementation (thereby producing average monthly compensation and average monthly time paid for in the test period). Both the above "total compensation" and the "total time for which he was paid" shall be adjusted to reflect the reduction on an annual basis, if any, which would have occurred during the specified twelve month period had Public Law 91-0169, amending the Hours of Service Act of 1907, been in effect throughout such period (i.e., 14 hours limit for any allowance paid during the period between December 26, 1970 and December 25, 1972 and 12 hours limit for any allowances paid thereafter). Such allowance shall also be adjusted to reflect subsequent general wage increases. In the event a Displaced Employee shall have less than 12 months of service his total compensation and total time paid for shall be divided by the number of months in which he performed service.

c. If a Displaced Employee’s compensation in his retained position in any month is less in any month in which he performs work than the aforesaid average compensation (adjusted to reflect subsequent general wage increases) to which he would have been entitled, he shall be paid the difference, less compensation for time lost on account of his voluntary absences to the extent that he is not available for service equivalent to his average monthly time during the test period but if in his aforesaid average monthly time paid for during the test period he shall be additionally compensated for such excess time at the rate of pay at the retained position.

d. If a Displaced Employee fails to exercise his seniority rights to secure another position available to him which does not require a change in his place of residence, to which he is entitled under the Schedule Agreement and which carries a rate of pay and compensation exceeding those of the position which he elects to retain, he shall thereafter be treated for the purposes of this Paragraph as occupying the position he elects to decline.

e. The displacement allowance shall cease prior to the expiration of the Protective Period in the event of the Displaced Employee’s resignation, death, retirement or dismissal for justifiable cause.

4. Dismissal Allowance

a. A Dismissed Employee shall be paid a monthly dismissal allowance, from the date he is deprived of employment and continuing during his protective period, equivalent to one-twelfth of the compensation received by him in the last twelve (12) months of his employment in which he earned compensation prior to the date he is first deprived of employment as a result of the transaction. Such allowance shall be adjusted to reflect on an annual basis the reduction, if any, which would have occurred during the specified twelve month period had Public Law 91-169, amending the Hours of Service Act of 1907, been in effect throughout such period (i.e., 14 hours limit for any allowance paid during the period between December 26, 1970 and December 25, 1972 and 12 hours limit for any allowances paid thereafter). Such allowance shall also be adjusted to reflect subsequent general wage increases. In the event a Dismissed Employee shall have less than 12 months of service his total compensation and total time paid for shall be divided by the number of months in which he performed service.

b. The dismissal allowance of any Dismissed Employee who returns to service with the Carrier shall cease while he is so reemployed. During the time of such re-employment, he shall be entitled to protection in accordance with the provisions of Paragraph 3.

c. The dismissal allowance of any Dismissed Employee shall be reduced to the extent that his combined monthly earnings in other employment, any benefits received under any unemployment insurance law, and his dismissal allowance exceed the amount upon which his dismissal allowance is based. Such employee, or his representative, and the Carrier shall agree upon a procedure by which Railroad shall be currently informed of the earnings of such employee in employment other than with the Carrier, and the benefits received.

d. The dismissal allowance shall cease prior to the expiration of the protective period in the event of the employee’s resignation, death, retirement, dismissal for justifiable cause under existing agreements, failure to return to service after being notified in accordance with the working agreement, or failure without good cause to accept a comparable position which does not require a change in his place of residence for which he is qualified and eligible with the Carrier from which he was dismissed after being notified.

5. Separation Allowance

A dismissed Employee entitled to protection under this Article, may, at his option within 7 days of his dismissal, resign and (in lieu of all other benefits and protection provided in this Article) accept a lump sum payment computed in accordance with Section 9 of the Washington Job Protection Agreement of May, 1936.

6. Fringe Benefits

No employee of a Carrier who is affected by an Implementation shall be deprived during his Protective Period of benefits attached to this previous employment, such as free transportation, hospitalization, pensions, relief, et cetera, under the same conditions and so long as such benefits continue to be accorded to other employees of the Carrier, in active service or on furlough as the case may be, to the extent that such benefits can be so maintained under present authority of law or corporate action or through future authorization which may be obtained.

7. Seasonal Fluctuations and Declines in Business

a. In the event of a decline in a Carrier’s business measured by the net revenue ton-miles in any 30-day period compared with the net revenue ton-miles for the corresponding period in the preceding calendar year, the number of employees who are receiving dismissal or displacement allowances may be reduced at any time during the said payroll period to the extent of one percent for each one percent decline. Such reductions in protected employees shall be made in inverse seniority order. Upon restoration of a Carrier’s volume of net revenue ton-miles employees must be returned to their protective status to the extent of one percent for each one percent rise in the net income ton-miles. In the case of Terminal Companies, the decline in business shall be measured by the total number of loaded and empty cars received from and delivered to connecting Carriers including the number of loaded and empty cars handled in solid interchange trains, in any 30-day period compared with the volume of such interchange in the corresponding period in the preceding calendar year.

b. In the event that an employee receiving a displacement allowance is subsequently placed in a worse position by reasons of a seasonal fluctuation or a decline in business, so long as he continues in such position for that reason the amount paid him as his displacement allowance shall continue unchanged.

c. In the event that a Displaced Employee is deprived of employment with the Carrier as the result of a seasonal fluctuation or a decline in business, his dismissal allowance shall be the amount which was being paid him as his displacement allowance. An employee other than a Displaced Employee who is deprived of employment as the result of a seasonal fluctuation or a decline in business shall not be paid any protective benefits under this Article 35.

8. Arbitration of Dispute

a. In the event the Carrier and the UTU are unable to settle any dispute or controversy with respect to the interpretation, application or enforcement of any provision of this Article within 20 days after the dispute arises, it may be referred by either party to an arbitration committee. Upon notice in writing served by one party on the other of intent by that party to refer a dispute or controversy to an arbitration committee, each party shall, within 10 days, select one member of the committee and the members thus chosen shall select a neutral member who shall serve as chairman. If any party fails to select its members of the arbitration committee within the prescribed time limit, the General Chairperson of the UTU or the highest officer designated by the Carrier, as the case may be, shall be deemed the selected member, and the committee shall then function and its decision shall have the same force and effect as though all parties had selected their members. Should the members be unable to agree upon the appointment of the neutral member within 10 days, the parties shall then within an additional 10 days endeavor to agree upon a method by which a neutral member shall be appointed, and, failing such agreement, either party may request the National Mediation Board to designate within 10 days the neutral member whose designation will be binding upon the parties.

b. The decision, by majority vote, of the arbitration committee shall be final, binding, and conclusive and shall be rendered within 45 days after the hearing of the dispute or controversy has been concluded and the record closed.

c. The salaries and expenses of the neutral member shall be borne equally by the parties to the proceeding and all other expenses shall be paid by the party incurring them.

d. In the event of any dispute as to whether or not a particular employee was adversely affected by an Implementation, it shall be his obligation to identify the adverse effect and specify the pertinent facts relied upon. If the facts so stated are sufficient to support a finding that the employee was so adversely affected by an Implementation, it shall then be the Railroad’s burden to disprove those facts or prove that other factors affected the employee.

9. Any Displaced employee required to change his residence because of the Implementation of Article XII - Interdivisional Service shall receive the benefits contained in Section 10 and 11 of the Washington Job Protection Agreement except that he will be allowed 5 working days instead of "two working days" as provided in Section 10 of the said Agreement, and in addition to such benefits shall receive a transfer allowance of $400.00. The National Mediation Board is substituted for the Interstate Commerce Commission in Section 11(d) of said Agreement. Change of residence shall not be considered "required" if the reporting point to which the employee is changed is not more than 30 miles from his former reporting point.

10. If any protective benefits greater than those provided in this Article are available under existing agreements, such greater benefits shall apply subject to the terms, conditions, responsibilities and obligations of both the Carriers and employees under such agreements, in lieu of the benefits provided in this Article. There shall be no duplication or pyramiding of benefits to any employee.

Note: "Interchange and Road-Yard Movements" referred to in paragraph 1.a. of the above Article are covered in Article 23.

C. TIME LIMITS FOR FILING CLAIMS FOR PROTECTIVE BENEFITS

1. The steps in the handling of claims for compensation will be:

a. The instant claim by the employee to be filed with the Superintendent for division processing and determination by the Assistant Director of Labor Relations.

b. Appeal of the instant claim shall be submitted by the General Chairperson to the Assistant Director of Labor Relations.

c. Final appeal shall be by the General Chairperson and directed to the Director of Labor Relations.

2. a. All such claims must be filed by the employee not later than seventy-five (75) days from the last day of the month for which a claim is being made. Claims not made within this time limit will not be entertained or allowed.

b. When claims for compensation alleged to be due have been presented in accordance with Paragraph 2.a. and are not allowed the employee will be notified of the reason for the declination in writing within seventy-five (75) days from the date such claims were received. When not so notified, claims will be allowed.

3. At each successive step of the above procedure appeals from decisions regarding claims for compensation alleged to be due will be made within sixty (60) days or they will not be entertained or allowed. When such timely appeals are not allowed, the General Chairperson will be notified of the reasons for the declination, in writing, within sixty (60) days from the date of the appeal. When not so notified, claims for compensation alleged to be due will be allowed.

4. Failure to comply with the time limits set forth above will cause the matter to be closed, but this shall not be considered as a precedent or waiver of the contentions of either party to similar claims.

5. All claims involving a decision by the Director of Labor Relations shall be barred unless, within one (1) year from the date of said officer’s decision, proceedings are instituted by the employee or his representative before the arbitration panel prescribed by the particular employee protective agreement, conditions or arrangements involved.

This page last updated: March 02, 2005