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May 31, 1994


The opinion of the court was delivered by: CAROL E. HECKMAN



 On July 11, 1974, plaintiff began his employment for the Delaware & Hudson Railway Company ("Delaware & Hudson") as a trackman on the "Second" or "Susquehanna" subdivision. This subdivision comprised an area of the railroad which ran from Schenectady, New York to Binghamton, New York. At the time of his employment, plaintiff became a member of the Brotherhood of Maintenance of Way Employees ("BMWE"), and remains a member in good standing. He became an assistant foreman in the Susquehanna subdivision on August 18, 1975, and a foreman on May 10, 1976.

 In March, 1983, Delaware & Hudson leased the former Erie Railroad yard at Buffalo, New York, referred to as the "SK Yard," in order to establish a switching, classification and emergency maintenance location in western New York State. At that time, plaintiff was offered a position as foreman at the SK Yard. Plaintiff signed a letter agreement dated March 10, 1983, between the railroad and BMWE, *fn1" which stated in relevant part as follows:

It is the intent of this agreement that anyone desiring to bid any of the positions available at SK Yard, except system equipment operators, will retain their rights on their respective divisions which they currently are on and will also establish rights on the new roster as of the date they first work the position.

 (Item 14, Ex. 7). Plaintiff moved his family to Buffalo and began working at the SK Yard on April 7, 1983.

 On June 20, 1988, Delaware & Hudson filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. In June, 1990, defendant Delaware & Hudson Corp. ("DHC"), a subsidiary of Canadian Pacific Limited ("CP Rail"), acquired the assets of Delaware & Hudson (see Item 14, Ex. 5). Plaintiff continued to work at the SK Yard throughout the bankruptcy period.

 Prior to acquiring the assets of Delaware & Hudson, DHC negotiated new collective bargaining agreements with the unions representing Delaware & Hudson employees, including BMWE. The majority of the BMWE membership employed by DHC, including plaintiff, voted to approve the agreement (Item 14, Ex. 12). The agreement became effective on August 23, 1990 (Item 14, Ex. 13, p. 122).

 By letter dated August 16, 1990, the BMWE membership was notified that the new collective bargaining agreement had been ratified. That letter also notified the membership that the following procedures would be implemented to address seniority rosters, which had been frozen since the bankruptcy filing in June, 1988:

August 16, 1990 - All active and furloughed members will be notified of where Rosters are posted. Roster protests must be postmarked by August 31, 1990.
September 7, 1990 - Roster protest meeting.
September 14, 1990 - Revised 1990 posted.
September 17, 1990 - All jobs will be put up for Bid.
October 4, 1990 - Jobs will be awarded.
October 8, 1990 - New jobs will start.

 (Item 23, Ex. G).

 The seniority roster for the Buffalo Track Forces, revised as of September 10, 1990, ranked plaintiff first in the trackman, assistant foreman and foreman classifications, with an entry date of April 7, 1983. The seniority roster for the Susquehanna subdivision, also revised as of September 10, 1990, ranked plaintiff 24th in the trackman classification with an entry date of July 11, 1974, 15th in the assistant foreman classification with an entry date of August 18, 1975, and 9th in the foreman classification, with an entry date of May 10, 1976 (Item 23, Ex. H). Seniority rosters posted January 1, 1991 also listed plaintiff on both the Buffalo and Susquehanna rosters, with the same rankings (Item 23, Ex. I).

 In June, 1991, plaintiff accepted a temporary position as supervisor on the Champlain subdivision, which covers the area from Whitehall, New York to Rouses Point, New York, along the border of the United States and Canada. This position was abolished in September, 1991, and plaintiff returned to his foreman position at the SK Yard in Buffalo. Between June and September, 1991, plaintiff continued to pay his BMWE dues.

 Meanwhile, on August 26, 1991, a roster meeting was held in Clifton Park, New York. At that meeting, BMWE members John Harvey and David Jordan submitted written protests against the 1991 seniority rosters. John Harvey's protest, dated February 28, 1991, stated as follows:

I would like to protest the 1991 2nd-sub roster.
John Radzikowski #24 did not work as a foreman or trackman in the 2nd-sub. after Oct. 8, 1990. During the same period he worked as a foreman in the Buffalo division.
He should have had to choose between rosters. Any agreement he had in 1983 should be null and void with the new contract and the sale of the company.

 (Item 14, Ex. 15). David Jordan's protest, dated March 27, 1991, stated:

I wish to protest John Radzikowski appearing on the 1991 2nd sub-division track roster. Mr. Radzikowski failed to ...

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