The Second Division consisted of the regular members and in
addition Referee Jesse Simons when award was rendered.
BURLINGTON NORTHERN, INC.
(Formerly Spokane, Portland and Seattle Railway Company)
EMPLOYES' STATEMENT OF FACTS: The Burlington Northern, Inc. (formerly Spokane, Portland and Seattle Railway Company), hereinafter referred to as the carrier, employs Carmen K. E. Manley, D. V. DeLong, E. S. Schulte and W. H. Evans, hereinafter referred to as the claimants, at Vancouver, Washington.
The Claimants are regularly assigned wrecking crew members of the Vancouver, Washington wrecking crew. Carrier maintains a wrecking outfit at Wishram, Washington, but no wrecking crew. Whenever the Wishram wrecker is called out the Vancouver wrecking crew is called and transported to the scene of the derailment by carrier bus or truck. This practice has been in effect since 1958 when carrier transferred carmen forces previously assigned at Wisham to Vancouver.
Two derailments occurred at Gateway, Washington on January 25, 1969. The first derailment occurred at about 3:45 P. M. involving one gondola car and the second derailment occurred about 9:50 P. M., involving four Diesel units. On the following day, January 26, 1969, the carrier assigned the Working Foreman from Bend, Oregon and the Gateway Section Foreman and crew to perform the rerailing work resulting from the derailments. They completed the rerailing service at 5:3,0 P. M. on that date.
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.
This is a claim that Carrier, in violation of Rules 34 and 67, assigned a working foreman, a section foreman, and section crew men on January 26, 1969 to rerail one Gondola car and four Diesel Units at Gateway, Washington. The remedy sought for said alleged violation is 17 hours' compensation at the time and one-half rate for carmen K. Manley, D. V. DeLong, E. S. Schulte and W. H. Evans, all members of the Wrecking Crew, located at Vancouver, Washington.
The decision in this dispute turns, in the first instance, on the issue of whether, pursuant to Rules 34 and 67, the Carrier was obligated to (1) either send the Vancouver Wrecking Crew to the derailment scene; or (2) failing that, to compensate the crew for the work they would have performed, had they been sent. Decision on the above, in turn, depends on whether or not Rules 34 and 67 do in fact accord exclusive jurisdiction to the Vancouver Wrecking Crew to perform all rerailing work, and, if so, do said rules require Carrier to assign said crew to said derailments, and, correlatively, if such Rules do confer such exclusive jurisdiction, does it bar other employes from performing duties regarding derailing or r erailing of derailed trains, in the absence of the use of the wrecking outfit.
The above issue has been submitted to the Board on innumerable previous occasions, and both parties have submitted past decisions which they believe controlling, and on which they ground their respective positions.
This Board has carefully reviewed all the past decisions submitted to it, and, having done so, has the following comments to make with regard to them.
The fact situation in the disputes disposed of in the below list of Awards differs radically from the fact situation in the instant dispute, in that a wrecking outfit was used and a wrecking crew was assigned and, therefore, said Awards (listed below) are neither pertinent or controlling in the instant dispute:
"Reference is made to 3rd Division Award No. 10911, which succinctly states the following:
The above citation notes correctly that chaos would be the consequence absent recognition by the parties and the Board of the impact and role of prior awards.
However, the Board also notes that it can contribute to expeditious and orderly resolution of grievances arising under the Agreements, by making every effort to assure that awards construing and applying Agreement terms to particular fact situations, have a minimum of inconsistency and maximum of consistency. The parties have a right to rely on such a postulate, and, in fact, need such stability so as to effectively implement and administer the agreements with a minimum of costly and time consuming litigation of disputes. Finally, achieving the goal of awards which are harmonious and consistent in the interpretation and application of the Agreement(s), is further justified on the grounds that it will tend to improve the labor management relationship to the extent of reducing friction, contention and misunderstanding.
When such a goal has been achieved, as it has in the instant issues under consideration, continual resort to Board procedures merely serves to clutter the calendar and delay hearings and awards in matters now pending."
Award No. 1719 - 1953 Award No. 1757 - 1954 Award No. 2049 - 1956 Award No. 2050 - 1956 Award No. 2343 - 1956 Award No. 2208 - 1956 Award No. 4190 - 1963 Award No. 4362 - 1963 Award No. 4415 - 1964 Award No. 4821 - 1966 Award No. 4848 - 1966 Award No. 4931 - 1966 Award No. 5306 - 1967
- Carter, Referee - Douglas, Referee - Douglas, Referee - Carter, Referee - Carter, Referee - Anrod, Referee - Anrod, Referee - McDonald, Referee - Johnson, Referee - McMahon, Referee - Hall, Referee - Weston, Referee
Awards 3257, 3265, 5438, 5637, 5608 and 5802, all cited by the Carrier, do not precisely deal with the specific fact situation in the instant matter. Thus, they are not relied on by this Board in this Award, though it is noted that much of the reasoning, analyses and conclusions contained in said Awards are pertinent and relevant to the issues under consideration.
The Board confesses its bewilderment that the issues presented herein are before it for still another Award. The Board cannot formulate any reasonable explanation as to why this grievance was not shunted aside at some earlier point in the procedures for processing claimed violations of agreements in view of the body of Awards previously cited.
Repetitious readjudication of issues tends to damage and undermine the role of the Adjustment Board and the grievance procedure. It can have the ultimate consequences of eroding and casting into disrepute the vital functions of grievance processing which needs to be performed, namely, preservation of employe rights under the agreements and minimization of friction in the labor-management relationship.
Gresham's Law, that bad money drives out good, applies to grievance processing. However, the consequences of continuing, and continuously processing grievances up to the Adjustment Board and the emergence of a deadlock requiring participation of a Referee, concerning issues which have been disposed of in a decisive manner such as is manifest in the body of decisions previously cited, must necessarily result in the frustration of unwarranted expectations and unjustified hopes held by the grievants, who then, out of such frustration, may very well come to regard the grievance procedures as void of meaning, and may, therefore, downgrade the existing procedure and then tend to look for other means of resolving disputes.
The Board firmly believes that some means must be developed to divert grievances, such as the instant one, at some point in the elaborate trek they take, extending over two-year periods, wherein there are numerous meetings and exchanges of letters, docketing, preparation and presentation of briefs, and reply briefs. Such diversion would have been warranted in this particular case when surely somewhere along the line, it must have been known to at least some of those participating in the processing of this grievance, what the outcome would certainly be. Development of a procedure providing for diversion or resolution of grievances on issues already put to rest by prior Awards is justified in that it will serve the interests of preserving the integrity of the grievance procedures and the Adjustment Board.