INTERSTATE COMMERCE COMMISSION
Finance Docket No. 28250
NEW YORK DOCK RAILWAY - CONTROL - BROOKLYN EASTERN DISTRICT TERMINAL
APPENDIX III
Labor protective conditions to be imposed in railroad transactions pursuant to 49 U.S.C. 11343 et seq (formerly sections 5(2) and 5(3) of the Interstate Commerce Act), except lease proposals which are being considered elsewhere, are as follows:
"Transaction" means any action taken pursuant to authorizations of this Commission on which these provisions have been imposed.
"Displaced employee" means an employee of the railroad who, as a result of a transaction is placed in a worse position with respect to his compensation and rules governing his working conditions.
"Dismissed employee" means an employee of the railroad who, as a result of a transaction is deprived of employment with the railroad 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 a transaction.
"Protective period" means the period of time during which a displaced or dismissed employee is to be provided protection hereunder and extends from the date on which an employee is displaced or dismissed to the expiration of 6 years there from, provided, however, that the protective period for any particular employee shall not continue for a longer period following the date he was displaced or dismissed than the period during which such employee was in the employ of the railroad prior to the date of his displacement or his dismissal. For purposes of this appendix, an employee's length of service shall be determined in accordance with the provisions of section 7(b) of the Washington Job Protection Agreement of May 1936.
The rates of pay,
rules, working conditions and all collective bargaining and other rights, privileges
and benefits (including continuation of pension rights and benefits) of the
railroad's employees under applicable laws and/or existing collective
bargaining agreements or otherwise shall be preserved unless changed by
future collective bargaining agreements or applicable statutes.
Nothing in this Appendix shall be construed as depriving any
employee of any rights or benefits or eliminating any obligations which such
employee may have under any existing job security or other protective
conditions or arrangements; provided, that if an employee otherwise
is eligible for protection under both this Appendix and some other job
security or other protective conditions or arrangement, he shall elect
between the benefits under this Appendix and similar benefits under such
other arrangement and, for so long as he continues to receive such benefits
under the provisions which he so elects, he shall not be entitled to the
same type of benefit under the provisions which he does not so elect; provided
further, that the benefits under this Appendix, or any other
arrangement, shall be construed to include the conditions, responsibilities
and obligations accompanying such benefits; and, provided further,
that after expiration of the period for which such employee is entitled to
protection under the arrangement which he so elects, he may then be entitled
to protection under the other arrangement for the remainder, if any, of this
protective period under that arrangement.
Notice and Agreement or
Decision
Each railroad contemplating a transaction which is
subject to these conditions and may cause the dismissal or displacement
of any employees, or rearrangement of forces, shall give at least ninety
(90) days written notice of such intended transaction by posting a
notice on bulletin boards convenient to the interested employees of the
railroad and by sending registered mail notice to the representatives of
such interested employees. Such notice shall contain a full and adequate
statement of the proposed changes to be affected by such transaction,
including an estimate of the number of employees of each class affected
by the intended changes. Prior to consummation the parties shall
negotiate in the following manner.
Within five (5) days from the date of receipt of notice, at the request
of either the railroad or representatives of such interested employees,
a place shall be selected to hold negotiations for the purpose of
reaching agreement with respect to application of the terms and
conditions of this appendix, and these negotiations shall commence
immediately thereafter and continue for at least thirty (30) days. Each
transaction which may result in a dismissal or displacement of employees
or rearrangement of forces, shall provide for the selection of forces
from all employees involved on a basis accepted as appropriate for
application in the particular case and any assignment of employees made
necessary by the transaction shall be made on the basis of an agreement
or decision under this section 4. If at the end of thirty (30) days
there is a failure to agree, either party to the dispute may submit it
for adjustment in accordance with the following procedures:
(1) Within five (5) days from the request for arbitration
the parties shall select a neutral referee and in the event they are
unable to agree within said five (5) days upon the selection of said referee
then the National Mediation Board shall immediately appoint a referee.
(2) No later than twenty (20) days after a referee has been
designated a hearing on the dispute shall commence.
(3) The decision of the referee shall be final, binding and
conclusive and shall be rendered within thirty (30) days from the
commencement of the hearing of the dispute.
(4) The salary and expenses of the referee shall be borne
equally by the parties to the proceeding; all other expenses shall be
paid by the party incurring them.
No change in operations, service, facilities, or
equipment shall occur until after an agreement is reached or the
decision of a referee has been rendered.
So long 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, during his protective period, 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.
Each 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 services immediately preceding the date of his displacement as a result of the transaction (thereby producing average monthly compensation and average monthly time paid for in the test period), and provided further, that such allowance shall also be adjusted to reflect subsequent general wage increases.
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 absence to the extent that he is not available for service equivalent to his average monthly time during the test period, but if in his retained position he works in any month in excess of the aforesaid average monthly time paid for during the test period he shall be additionally compensated for such excess time at the rate of pay of the retained position.
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 working 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 section as occupying the position he elects to decline.
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.
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 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 also be adjusted to reflect subsequent general wage increases.
The dismissal allowance of any dismissed employee who returns to service with the railroad shall cease while he is so reemployed. During the time of such reemployment, he shall be entitled to protection in accordance with the provisions of section 5.
The dismissal allowance of any dismissed employee who is otherwise employed shall be reduced to the extent that his combined monthly earnings in such 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 railroad shall agree upon a procedure by which the railroad shall be currently informed of the earnings of such employee in employment other than with the railroad, and the benefits received.
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, 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 after appropriate notification, if his return does not infringe upon the employment rights of other employees under a working agreement.
Separation Allowance A dismissed employee entitled
to protection under this appendix, may, at his option within seven (7) days
of his dismissal, resign and (in lieu of all other benefits and protections
provided in this appendix) accept a lump sum payment computed in accordance
with section 9 of the Washington Job Protection Agreement of May 1936.
Fringe Benefits
No employee of the railroad who is
affected by a transaction shall be deprived, during his protection period,
of benefits attached to his previous employment, such as free
transportation, hospitalization, pensions, reliefs, et cetera, under the
same conditions and so long as such benefits continue to be accorded to
other employees of the railroad, in active 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.
Moving Expenses Any employee retained in the service
of the railroad or who is later restored to service after being entitled to
receive a dismissal allowance, and who is required to change the point of
his employment as a result of the transaction, and who within his protective
period is required to move his place of residence, shall be reimbursed for
all expenses of moving his household and and other personal effects, for the
traveling expenses of himself and members of his family, including living
expenses for himself and his family and for his own actual wage loss, not to
exceed 3 working days, the exact extent of the responsibility of the
railroad during the time necessary for such transfer and for reasonable time
thereafter and the ways and means of transportation to be agreed upon in
advance by the railroad and the affected employee or his representatives; provided,
however, that changes in place of residence which are not a result of
the transaction, shall not be considered to be within the purview of this
section; provided further, that the railroad shall, to the
same extent provided above, assume the expenses, et cetera, for any employee
furloughed with three (3) years after changing his point of employment as a
result of a transaction, who elects to move his place of residence back to
his original point of employment. No claim for reimbursement shall be paid
under the provision of this section unless such claim is presented to the
railroad within ninety (90) days after the date on which the expenses were
incurred.
Should the railroad rearrange or adjust its forces in
anticipation of a transaction with the purpose or effect of depriving an
employee of benefits to which he otherwise would have become entitled under
this appendix, this appendix will apply to such employee.
In the event the railroad and its employees or their authorized representatives cannot settle any dispute or controversy with respect to the interpretation, application or enforcement of any provision of this appendix, except section 4 and 12 of this article I, 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 member of the arbitration committee within the prescribed time limit, the general chairman of the involved labor organization or the highest officer designated by the railroads, 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 to 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.
In the event a dispute involves more than one labor organization, each will be entitled to a representative on the arbitration committee, in which event the railroad will be entitled to appoint additional representatives so as to equal the number of labor organization representatives.
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.
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.
In the event of any dispute as to whether or not a particular employee was affected by a transaction, it shall be his obligation to identify the transaction and specify the pertinent facts of that transaction relied upon. It shall then be the railroad's burden to prove that factors other than a transaction affected the employee.
The following conditions shall apply to the extent they are applicable in each instance to any employee who is retained in the service of the railroad (or who is later restored to service after being entitled to receive a dismissal allowance) who is required to change the point of his employment within his protective period as a result of the transaction and is therefor required to move his place of residence:
If the employee owns his own home in the locality from which he is required to move, he shall at his option be reimbursed by the railroad for any loss suffered in the sale of his home for less than its fair value. In each case the fair value of the home in question shall be determined as of a date sufficiently prior to the date of the transaction so as to be unaffected thereby. The railroad shall in each instance be afforded an opportunity to purchase the home at such fair value before it is sold by the employee to any other person.
If the employee is under a contract to purchase his home, the railroad shall protect him against loss to the extent of the fair value of equity he may have in the home and in addition shall relieve him from any further obligation under his contract.
If the employee holds an unexpired lease of a dwelling occupied by him as his home, the railroad shall protect him from all loss and cost in securing the cancellation of said lease.
Changes in place of residence which are not the result of a transaction shall not be considered to be within the purview of this section.
No claim for loss shall be paid under the provisions of this section unless such claim is presented to the railroad within 1 year after the date the employee is required to move.
Should a controversy arise in respect to the value of the home, the loss sustained in its sale, the loss under a contract for purchase, loss and cost in securing termination of a lease, or any other question in connection with these matters, it shall be decided through joint conference between the employee, or their representatives and the railroad. In the event they are unable to agree, the dispute or controversy may be referred by either party to a board of competent real estate appraisers, selected in the following manner. One to be selected by the representatives of the employees and one by the railroad, and these two, if unable to agree within 30 days thereafter upon a valuation, shall endeavor by agreement within 10 days thereafter to select a third appraiser, or to agree to a method by which a third appraiser shall be selected, and failing such agreement, either party may request the National Mediation Board to designate within 10 days a third appraiser whose designation will be binding upon the parties. A decision of a majority of the appraisers shall be required and said decision shall be final and conclusive. The salary and expenses of the third or neutral appraiser, including the expenses of the appraisal board, shall be borne equally by the parties to the proceedings. All other expenses shall be paid by the party incurring them, including the compensation of the appraiser selected by such party.
Any employee who is terminated or furloughed as a result of
a transaction shall, if he so requests, be granted priority or employment or
reemployment to fill a position comparable to that which he held when his
employment was terminated or he was furloughed, even though in a different
craft or class, on the railroad which he is, or by training or retraining physically
and mentally can become, qualified, not, however, in contravention of
collective bargaining agreements relating thereto.
In the event such training or retraining is requested by
such employee, the railroad shall provide for such training or retraining at
no cost to the employee.
If such a terminated or furloughed employee who had made a
request under section 1 or 2 of the article II fails without good cause
within 10 calendar days to accept an offer of a position comparable to that
which he held when terminated or furloughed for which he is qualified, or
for which he has satisfactorily completed such training, he shall, affective
at the expiration of such 10 day period, forfeit all rights and benefits
under this appendix.
Subject to this appendix, as if employees of railroad, shall be employees, if affected by a transaction, of separately incorporated terminal companies which are owned (in whole or in part) or used by railroad and employees of any other enterprise within the definition of common carrier by railroad in section 1(3) of part I of the Interstate Commerce Act, as amended, in which railroad has an interest, to which railroad provides facilities, or with which railroad contracts for use of facilities, or the facilities of which railroad otherwise used; except that the provisions of this appendix shall be suspended with respect to each such employee until and unless he applies for employment with each owning carrier and each using carrier; provided that said carriers shall establish one convenient central location for each terminal or other enterprise for receipt of one such application which will be effective as to all said carriers and railroad shall notify such employees of this requirement and of the location for receipt of the application. Such employees shall not be entitled to any of the benefits of this appendix in the case of failure, without good cause, to accept comparable employment, which does not require a change in place of residence, under the same conditions as apply to other employees under this appendix, with any carrier for which application for employment has been made in accordance with this section.
Employees of the railroad who are not represented by a labor organization shall be afforded substantially the same levels of protection as are afforded to members of labor organizations under these terms and conditions.
In the event any dispute or controversy arises between the railroad and an employee not represented by a labor organization with respect to the interpretation, application or enforcement of any provision hereof which cannot be settled by the parties within 30 days after the dispute arises, either party may refer the dispute to arbitration.
It is the intent of this appendix to provide employee
protections which are not less than the benefits established under 49 U.S.C.
11347 before February 5, 1976, and under section 565 of title 45. In so
doing, changes in wording and organization from arrangements earlier
developed under those sections have been necessary to make such benefits
applicable to transactions as defined in article 1 of this appendix. In
making such changes, it is not the intent of this appendix to diminish such
benefits, Thus, the terms of this appendix are to be resolved in favor of
this intent to provide employee protections and benefits no less than those
established under 49 U.S.C. 11347 before February 5, 1976 and under section
565 of title 45.
In the event any provision of this appendix is held to be invalid or other wise unenforceable under applicable law, the remaining provisions of this appendix shall not be affected.
This page last updated: 01/28/01