45 U.S.C. § 797b — Preferential hiring

Page 215 TITLE 45—RAILROADS § 797b same participants and beneficiaries and in the same amounts as the fractional shares had been allocated. ‘‘(B) After completing the distribution under subpara- graph (A), the ESOP shall terminate. ‘‘(3) The Corporation shall distribute any full shares of its common stock which, because of the exception under paragraph (1)(B), could not be contributed to the ESOP to those persons to whom the ESOP would have allocated such shares pursuant to paragraph (1)(B) had such shares been contributed to the ESOP. The Cor- poration shall pay cash pursuant to the formula set forth in paragraph (2)(A)(ii) in lieu of fractional shares. ‘‘(4) For purposes of Rule 144 promulgated under the Securities Act of 1933 [15 U.S.C. 77a et seq.], each share of the common stock of the Corporation distributed under this subsection shall be deemed to have been ben- eficially owned by the recipient, as of the date of such distribution, for a period of 3 years.’’ § 797a. Termination allowance (a) General The Corporation may terminate the employ- ment of certain employees, in accordance with this section, upon the payment of an allowance of $350 for each month of active service with the Corporation or with a railroad in reorganiza- tion, but in no event may any such termination allowance exceed $25,000. (b) Employment needs Within 90 days after August 13, 1981, the Cor- poration shall determine, for each location, the number of employees that the Corporation in- tends to separate under subsection (a) of this section. (c) Notification and separation procedure (1) Within 90 days after August 13, 1981, the Corporation shall notify its employees of their rights and responsibilities under this section. (2) Within 90 days after August 13, 1981, the Corporation shall notify each train and engine service employee eligible to be separated under paragraph (3) that such employee may be enti- tled to receive a separation payment under this section if such employee files a written request to be separated. Such notice may be revised from time to time. (3) If the number of employees who request to be separated pursuant to paragraph (2) of this subsection is greater, in engine service at any location, than the number of excess firemen at the location, and in train service at the location than the number of excess second and third brakemen, as determined by the Corporation, the Corporation shall separate the employees described in paragraph (2) of this subsection in order of seniority beginning with the most sen- ior employee, until the excess firemen and sec- ond and third brakemen positions at that loca- tion, as determined by the Corporation, have been eliminated. (d) Designated separations If the number of employees who are separated pursuant to subsection (c)(3) is less at any loca- tion than the number of excess firemen in freight and commuter service and second and third brakemen in freight service at such loca- tion, as determined by the Corporation, the Cor- poration may, after 210 days after August 13, 1981, designate for separation employees in en- gine service or train service respectively in in- verse order of seniority, beginning with the most junior employee in active service at such location until the excess firemen in freight and commuter service and second and third brake- men in freight service, at that location have been eliminated. An employee designated under this subsection may choose (1) to furlough him- self voluntarily, in which case the next most junior employee protected under the fireman manning or crew consist agreements or any other agreement or law, in the same craft or class at such location may be separated instead and receive the separation allowance, or (2) to exercise his seniority to another location, in which case the Corporation may separate, under the provisions of this subsection, the next most junior protected employee in active service at the location to which seniority ultimately is ex- ercised. (e) Effect on positions (1) The Corporation shall refrain from filling one fireman position in freight service, or in commuter service where applicable, for each em- ployee in engine service separated in accordance with this section. (2) The Corporation may refrain from filling one brakeman position in excess of one con- ductor and one brakeman on one crew in freight service for each employee in train service who is separated in accordance with this section. (3) Positions permitted to be not filled under this subsection shall be not filled in different types of freight service actually operated at or from the location in a sequence to be agreed upon between the Corporation and the general chairman representative of classes or crafts of employees having jurisdiction over the positions to be not filled. If no such agreement is reached, the Corporation may designate the position to be not filled. (4) Notwithstanding paragraphs (1) and (2) of this subsection, the Corporation shall retain all rights it has under any provision of law or agreement to refrain from filling any position of employment. (f) Procedures The Corporation and representatives of the various classes and crafts of employees to be separated may agree on procedures to imple- ment this section, but the absence of such agree- ment shall not interfere with implementation of the separations authorized by this section. (g) Commuter employees The provisions of this section shall apply to the separation of firemen in commuter service, except that with respect to such employees the Corporation is required to make the separations authorized by this section. (Pub. L. 93–236, title VII, § 702, as added Pub. L. 97–35, title XI, § 1143(a), Aug. 13, 1981, 95 Stat. 662.) § 797b. Preferential hiring (a) General Any employee who is deprived of employment shall have the first right of hire by any other railroad for a vacancy for which he is qualified in a class or craft (or in the case of a non-agree- Page 216 TITLE 45—RAILROADS § 797c ment employee, for a non-agreement vacancy) in which such employee was employed by the Cor- poration or a predecessor carrier for not less than one year, except where such a vacancy is covered by (1) an affirmative action plan, or a hiring plan designed to eliminate discrimina- tion, that is required by Federal or State stat- ute, regulation, or Executive order, or by the order of a Federal court or agency, or (2) a per- missible voluntary affirmative action plan. For purposes of this section, a railroad shall not be considered to be hiring new employees when it recalls any of its own furloughed employees. (b) Status The first right of hire afforded to employees under this section shall be coequal to the first right of hire afforded under sections 907 and 1004 of this title. (Pub. L. 93–236, title VII, § 703, as added Pub. L. 97–35, title XI, § 1143(a), Aug. 13, 1981, 95 Stat. 663.) Statutory Notes and Related Subsidiaries EXEMPTION OF NATIONAL RAILROAD PASSENGER COR- PORATION IN HIRING QUALIFIED TRAIN AND ENGINE EMPLOYEES Pub. L. 99–272, title IV, § 4011(c), Apr. 7, 1986, 100 Stat. 109, provided that: ‘‘The provisions of section 703 of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 797b), section 8 of the Milwaukee Railroad Restruc- turing Act (45 U.S.C. 907), and section 105 of the Rock Island Railroad Transition and Employee Assistance Act (45 U.S.C. 1004) shall not apply to the National Railroad Passenger Corporation in the hiring of quali- fied train and engine employees who hold seniority rights to work in intercity rail passenger service in connection with the assumption by such Corporation of functions previously performed under contract by other carriers.’’ § 797c. Central register of railroad employment (a) Register (1) The Railroad Retirement Board (hereafter in this section referred to as the ‘‘Board’’) shall prepare and maintain a register of persons sepa- rated from railroad employment after at least one year of completed service with a railroad who have declared their current availability for employment in the railroad industry. The reg- ister shall be subdivided by class and craft of prior employment and shall be updated periodi- cally to reflect current availability. (2) Each entry in the register shall include, or provide access to, basic information concerning the individual’s experience and qualifications. (3) The Board shall place at the top of the reg- ister those former railroad employees entitled to priority under applicable provisions of law, including this chapter. (b) Corporation employees As soon as is practicable after August 13, 1981, the Corporation shall provide to the Board the names of its former employees who elect to ap- pear on the register and who have not been of- fered employment with acquiring railroads. (c) Vacancy notices; warning; civil penalty (1) Each railroad shall timely file with the Board a notice of vacancy with respect to any position for which the railroad intends to accept applications from persons other than current employees of that carrier. (2)(A) As soon as the Board becomes aware of any failure on the part of a railroad to comply with paragraph (1), the Board shall issue a warn- ing to such railroad of its potential liability under subparagraph (B). (B) Any railroad failing to comply with para- graph (1) of this subsection after being warned by the Board under subparagraph (A) shall be liable for a civil penalty in the amount of $500 for each subsequent vacancy with respect to which such railroad has so failed to comply. (d) Placement The Board shall, through distribution of copies of the central register (or portions thereof) to railroads and representatives of classes or crafts of employees and through publication of em- ployment information derived from vacancy no- tices filed with the Board, promote the place- ment of former railroad employees possessing requisite skills and experience in appropriate positions with other railroads. (e) Employment applications In addition to its responsibilities under sub- sections (a) through (d) of this section, the Board shall facilitate the filing of employment applications with respect to current vacancies in the industry by former railroad employees en- titled to priority under applicable provisions of law, including this chapter. (f) Expiration The provisions of this section shall cease to be effective on the expiration of the 6-year period beginning on August 13, 1981. (g) Resolution of disputes Any dispute, grievance, or claim arising under this section, section 797b of this title, section 907 of this title, or section 1004 of this title shall be subject to resolution in accordance with the fol- lowing procedures: (1) Any employee with such a dispute, griev- ance, or claim may petition the Board to re- view and investigate the dispute, grievance, or claim. (2) The Board shall investigate the dispute, grievance, or claim, and if it concludes that the employee’s rights under this section, sec- tion 797b of this title, section 907 of this title, or section 1004 of this title may have been vio- lated, the dispute, grievance, or claim shall be subject to resolution in accordance with the procedures set forth in section 153 of this title. (3) In the case of any violation of this sec- tion, section 797b of this title, section 907 of this title, or section 1004 of this title, the Ad- justment Board (or any division or delegate thereof) or any other board of adjustment cre- ated under section 153 of this title shall, where appropriate, award such relief, including back pay, as may be necessary to enforce the em- ployee’s rights. (Pub. L. 93–236, title VII, § 704, as added Pub. L. 97–35, title XI, § 1143(a), Aug. 13, 1981, 95 Stat. 663; amended Pub. L. 97–468, title II, § 235, Jan. 14, 1983, 96 Stat. 2547; Pub. L. 99–272, title IV, § 4011(a), (b), Apr. 7, 1986, 100 Stat. 108, 109.)