The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: 1-That the Carrier violated the terms of the Agreement on and after November 13, 1958 in assigning Atlanta Joint Terminal Carmen and Coach Cleaners to service Georgia Railroad Train No. 1 at their Station facilities, Atlanta, Ga.
2-That accordingly an L&N Carman (Car Inspector) and Coach Cleaner be additionally compensated for each instance subsequent to November 22, 1958.
EMPLOYES STATEMENT OF FACTS: Georgia Railroad Train No. 1 arrives in the L&N Passenger Station at Atlanta, Georgia at approximately 5:30 P. M. each day.
Prior to November 13, 1958, the Georgia Railway removed their train No. 1 from the L&N Passenger Station to the Atlanta Joint Terminals Yard, a distance of approximately 3 miles, to be serviced. Since November 13, 1958, the Atlanta Joint Terminals Company has been sending a car inspector (carman) and a coach cleaner, daily, from their facilities to the trackage and property owned by the L&N, hereinafter referred to as the carrier.
The wrongful action of the carrier of having other than employes covered by the agreement perform these duties, was handled verbally without success and on January 21, 1959, a claim was instituted in favor of one carman and one coach cleaner for additional pay, retroactive 60 days.
This dispute has been progressed with the carrier up to and with the highest officer designated thereby to handle the matter, who consequently declined to adjust the dispute.
Article 3 of the agreement covering occupancy of Union Station, Atlanta, Georgia, by the Georgia Railroad provides:
POSITION OF CARRIER: There has been no violation of agreement between the Louisville & Nashville Railroad and its employes represented by the Brotherhood of Railway Carmen of America. The coaches were cleaned by Georgia Railroad employes in Atlanta Joint Terminals prior to adoption of the practice now in dispute. They are now cleaned by Georgia Railroad employes in Union Station. Contract with the Georgia Railroad covering use of Union Station provides that the Georgia Railroad will
The L&N Railroad lacks authority to tell the Georgia Railroad how its equipment must be maintained. Agreement between the L&N Railroad and its carmen contains no rule which would support the position now taken by the employes and their claim, therefore, should be denied. The owner of the equipment has not seen fit in this particular instance to allow L&N employes to clean the cars.
In connection with request of the employes that a car inspector be additionally compensated, the Georgia Railroad advises:
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Upon a consolidation this Carrier became bound by a contract between a predecessor railroad and the Georgia Railroad for the latter's use of the 3969-4 753
Atlanta passenger station which now constitutes part of Carrier's facilities. The contract expressly provided that Carrier's predecessor did not agree to maintain cleaning or repair tracks or similar facilities for the Georgia Railroad, nor to "care for, clean, inspect or make repairs to its engines or cars, it being understood that all such services will be performed and all such facilities will be provided by it at its own expense." 1)
It seems debatable whether the original provisions quoted above infer a ban against the performance of this car cleaning and inspection work on these premises now controlled by Carrier; if not the Carrier, having inherited the contract, could probably not have imposed such a ban. But if the original contract did inferentially forbid the work there, the modification by Carrier constituted its consent to the work performance on its premises, and therefore a violation of the Agreement.
It seems clear that the Employes are entitled to perform work within the Agreement which the Carrier orders to be done on its property or vo1R tari! ermits to be done there.
For some time after the contract modification the Atlanta Joint Terminal's .coach cleaner was brought in by a carman who is claimed also to have performed inspection work on the train; but for some time that work has been done, and is now being done, by Carrier's carmen.
Under these circumstances the coach cleaning as well as the inspection work is apparently being done on Carrier's property with its consent, and should therefore be performed by Carrier's employes if it continues to be done there.
Since the times involved are indefinite and would involve records of other carriers, there seems to be no basis upon which additional compensation can be awarded.
The majority has erred in the decision as found in AWARD 3969. It is certainly questionable if an award such as this can be enforceable upon the Carriers involved, because the Georgia Railroad (owner of the cars involved in this dispute) and the Atlanta Joint Terminal (whose employes performed the work involved in this dispute) were not made parties to the dispute. The respondent Carrier in this dispute (Louisville and Nashville Railroad) is simply charged with allowing others to perform work on tracks which it owns. The Organization conceded that the Carrier did not assign work on its property to the employees of another Carrier, therefore there can be no rule violation by the respondent Carrier.
The work involved in the subject dispute had been performed for sometime pursuant to a contract between the Carrier and the Atlanta Joint Terminal, and this contract was a part of a lease arrangement. There is a great deal of analogy between the instant dispute and disputes previously given denial awards on this Division, viz., 2803, 2823, 2912, 2998, 3133, and 3276, all of which involved work as a part of a lease arrangement.
We have had on many previous occasions awards which have served as guidelines and precedents, and these awards have found that such work as is reserved by the Agreement to the Carrier's employes can only be that which is within the Carrier's power to offer. See Third Division Awards 2425, 4353, 4945, 5578, 5774, 6210, 7194, 6861, 6346, 6066, 7840, 8076, and 8294. A sustaining award of the Third Division, No. 6861, was subsequently overturned in the Boos v. Railway Express Agency, Inc., case (W.D. So. Dak. 195)-153 F. Supp. 14, Aff'd. (C.A. 8,195), 253 F. 2d 896.
Rules 30 and 104 of the Agreement contemplate work which the Carrier controls and not work which is outside its area of control. The majority found that since the Carrier neither ordered nor paid for the service by the Atlanta Joint Terminal employes, there was no liability for wages to its own employes. For the same reasons, this dispute should have been dismissed.
The Organization has no right to dictate the terms of a contract between two railroad companies. (See Third Division Awards 643, 2425, 4353, and 5878.) Had the respondent Carrier's contract with the Atlanta Joint Terminal provided that the coach cleaning would be supplied by the Carrier, then the Organization would be entitled to the work.
Union Station in Atlanta, Geaorgia, is owned by the State of Georgia, which many decades ago leased to the N. C. & St. L. Railroad control over this Station. In turn, the N. C. & St. L. Railroad contracted to the Atlanta Joint Terminal the operational and management control of the Union Station, which serves several Carriers in addition to the L. & N. and the Georgia Railroad. When the N. C. & St. L. merged with the L. & N., all property of the N. C. & St. L. and the contract between the N. C. & St. L. and the Atlanta Joint Terminal became a part of the L. & N. With this change of ownership, the service operations continued as practiced prior to the merger. The L. & N. employes are now seeking this work simply because the Georgia Railroad cars are cleaned while setting on tracks owned by the respondent Carrier.
The Atlanta Joint Terminal has a contractual right to operate on the tracks in the area of Union Station which are owned by this Carrier. 3969-6 755