Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7036
SECOND DIVISION Docket No. 6725-T
2-B&O-MA-'76
The Second Division consisted of the regular members and in
addition Referee Robert M. O'Brien when award was rendered.
( District Lodge No. 29, International Association
( of Machinists and Aerospace Workers
Parties to Dispute:
(
( The Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That under the Controlling Agreement as amended, the Carrier
damaged Machinists J. P. Arnold and C. T. Welsh, when they
applied a void Agreement dated April 13, 1961.
2. That accordingly the Carrier be ordered to compensate the
Claimants, for all wage loss, vacation rights, Hospital, Surgical
and Death Benefits as provided for under Policy GA -23000, pass
priviledges and all other benefits provided by the existing
agreements from the date of October 18, 1972, until recalled.
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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants were the regularly assigned Machinists at Carrier's Connellsville Shops, Connellsville, Pa. On May 23, 1972, Carrier served notice on
System Federation No. 30 (representative of Machinists and Electricians at
Connellsville) that in accordance with the provisions of the April 13, 1961
Memorandum of Agreement Carrier intended to abolish the four regularly assigned
Machinists positions and the three regularly assigned Electrician positions
at Connellsville, and in lieu thereof, they were going to establish four
mechanics positions to be designated by System Federation No. 30. System
Federation No. 30 replied that of the four positions to be retained, the
Machinist and Electrician crafts had been awarded two positions each by the
Executive Committee of System Federation No. 30. Subsequently, on October
11, 1972, Carrier abolished the seven positions and readvertised four new
positions and issued furlough notices to the two junior Machinists and the
junior Electrician. The instant claim was filed on behalf of the two Machinists.
Form 1 Award No. 7056
Page 2 Docket No. 6725-T
2-B&O-MA-' 76
It is the Organization's position that the April 13, 1961 Agreement,
relied on by the Carrier in abolishing claimants' positions, is null and
void inasmuch as it was abrogated by the September 25, 1964 Agreement,
Mediation Agreement, Case No. 7030. They contend that Article III of the
September 25, 1964 Agreement was violated when Carrier unilaterally assigned
work coming under the Machinist Classification of Work Rule to another craft,
viz. the Electricians. The Organization further avers that since each of
the four mechanics assigned as of October 11, 1972 performs all work on his
shift regardless of Classification of Work Rules, Article IV of the September
25, 1964 Agreement was also violated.
From the evidence at hand, this Board is compelled to conclude that
the April 13, 1961 Memorandum of Agreement was legally operative in 1972
when the changes at Connellsville were agreed to by the Carrier and System
Federation No. 30. Section 5 of said Agreement provides that it shall remain
in effect until modified or changed in accordance with the provisions of the
Railway Labor Act. And Section 6 of the Railway Labor Act specifically
mandates that the parties must give at least thirty days' written notice of
an intended change affecting rates of pay, rules, or working conditions.
Thus, if the Organization desired to amend the provisions of the April 13,
1961 Agreement it was incumbent upon them to do so by giving Carrier at least
thirty days written notice of its desire to amend the Agreement. There is
no evidence that the Organization ever served such a notice on the Carrier.
Nor can this Board find that the September 25, 1964 Agreement automatically abrogated the provisions of the April 13, 1961 Agreements. It is
axiomatic tha`~ all Rules mutually agreed to by the parties must be read
together and each given full effect unless they are obviously inconsistent
with one another. Applying this well established principle to the case at
hand, we are unable to conclude that the provisions of the two Agreements
are inconsistent. Article III of the September 25, 1964 Agreement pertains
to the amount of craft work that can be performed by supervisory employees
while Article IV prescribes the procedure to be followed when there is not
sufficient work to justify a mechanic of each craft a t outlying points.
Neither provision is inconsistent with the April 13, 1961 Agreement allowing
Carrier to reduce forces such as was done in the instant case. If we were
convinced that the Agreements were, in fact, inconsistent then the Organization's argument that no 90 day notice was given by it to retain existing
rules on this property might be persuasive. However, this Board concludes
that they were not inconsistent and therefore the notice provisions of Article
IV are inapplicable.
,11oreover, the provisions of the April 13, 1961 Agreement have been
utilized by the Carrier and System Federation No. 30 at other points on this
property subsequent to adoption of the September 25, 1964 Agreement which
clearly evidences the intent of the parties that they considered the provisions
thereof legally binding irrespective of the September 25, 1964 Agreement.
Form 1
Pa ge 3
Award No. 7036
Docket No. 6725-?
2-B&0-MA.-' 76
The foregoing reveals that the Organization was a party to the April
13, 1961 Agreement in 1972 when the Carrier consolidated forces at Connellsville and are bound by the provisions thereof. The claimants were furloughed
consistent with that Agreement and their claim that they are entitled to all
wages lost as a result of- said furlough is devoid of support and must, consequently, be denied.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY
R emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 13th day of A prilp 1976.
LABOR MEMBER'S DISSENT TO
AWARD NO. 7036, DOCKET NO. 6725-T
The Findings of the majority in Award No. 7036 are grossly
in error and thereby do violence to the spirit and intent of the
September 25, 1964 Agreement as well as the Schedule Agreement
provisions relating to the organization.
The majority states in pertinent part:
"From the evidence at hand, this Board is compelled
to conclude that the April 13, 1961 Memorandum of
Agreement was legally operative in 1972 when the
changes at Connellsville were agreed to by the Carrier
and System Federation No. 30. Section 5 of said Agreement
provides that it shall remain in effect until modified
or changed in accordance with the provisions of the
Railway Labor Act. And Section 6 of the Railway Labor
Act specifically.mandates that the parties must give
at least thirty days' written notice of an intended
change affecting rates of pay, rules, or working conditions. Thus, if the organization desired to amend
the provisions of the April 13, 1961 Agreement it was
.incumbent upon them to do so by giving Carrier at least
thirty days written notice of its desire to amend the
Agreement. There is no evidence that the organization
ever served such a notice on the Carrier."
This is an astonishing statement coming right after the previous
paragraph wherein the majority stated:
"XX the September 25, 1964 Agreement, Mediation
Agreement, Case No. 7030 XXX." (underscoring supplied)
Mediation Agreement Cases certainly do not come about by
"osmosis" or "immaculate conception". The majority was aware that
the September 25, 1964 Agreement evolved from a Section 6 notice to
"revise and amend all existing Agreements xxx." Now to say that the
April 13, 1961 Agreement could only be. revised by a Section 6 notice
and the organization did not pursue this course is self evidently
preposterous and not factual.
The majority then continues into a discourse on an allegation
that in any event the provisions of the two Agreements are not inconsistent. A comparison of the two agreements readily shows the
fallacy of such distorted reasoning. The 1961 Agreement allows the
Mechanic on duty at designated points to perform work of all shop
crafts on his shift. The September 25, 1964 Agreement in contrast
states in pertinent part:
Article III - Assignment of work
"None but Mechanics or apprentices
regularly employed as such shall do
Mechanics' work as per the special
rules of each craft except foremen
at points where no Mechanics are
employed." (underscoring supplied)
Article IV -Outlying Points
"At points where there is not sufficient
work to justify employing a mechanic of
craft, the mechanic or mechanics employed
at such points, will so far as they are
capable of doing so, perform the work of
any craft not having a mechanic employed
at that, point." (underscoring supplied)
The conflict in language between these two agreements is selfevident to any logical unbiased mind. The majority seemingly
suscribed to the respondents' "mumble jumble" about shifts. This
comparison of "apples and oranges" is negated by the explicit
language above stating that at points where a mechanic of any certain
shop craft is employed then nobody can perform the work of that craft
except him. So shifts have nothing whatever to do with .this clear
unambiguous restriction and the performance of work on any shift and
all shifts at that point is governed by the September 25, 1964 Agree
_ (LABOR MEMBER'S DISSENT TO AWARD
NO. 7036, DOCKET NO. 6725-T)
ment. Any other previous agreement in conflict, such as the 1961
Agreement, was clearly superceded and negated.
The majority further concludes that since the provisions of
the 1961 Agreement had been utilized subsequent to the 1964 Agreement that this carried some connotation of recognition that the 1961
Agreement was still effective. This majority was well aware of
Board holdings, was even furnished many of them, to the effect that
past practices bear no weight whatever in the face of clear unambiguous rule language. The only way that the provisions of the 1961
Agreement could have been retained was through the pertinent
language in the 1964 Agreement stating:
"Existing rules or practices on individual
properties may be retained by the organizations
by giving a notice to the Carriers involved
at any time within 90 days after the date of
this Agreement."
Nowhere in the entire record could anyone even allege that
such a notice had been orally advanced,.let alone produce a written
documentation that it had. Themajority somewhat petutantly concedes
this as:
"XXX If we were convinced that the Agreements
were, in fact, inconsistent then the Organizations
argument that no 90 day notice was given by it
to retain existing rules on this property might
be persuasive xxx."
For some unexplainable reason the majority seemed to be grasping vainly for excuses, rather than factual reasons to deny this
claim beyond logical conclusions for doing so. The facts of record
unrefutably show that the provisions of the two agreements are
- 3 - (LABOR MEMBER'S DISSENT TO AWARD
NO. 7036, DOCKET NO. 6725-T)
certainly inconsistent, that no proper notice was given to retain
the earlier agreement provisions, and therefore only the provisions
of the 1964 Agreement are controlling.
The
functions of
a neutral under the Railway Labor Act is to
allay, alleviate and settle and resolve labor strife. In this unwarranted and incorrect attempted rewriting of the 1964 Agreement,
not only has prior precedents of this Board been ignored, but the
end result has been to depart from the above concept by actually
increasing labor strife to the extent that the organization is
being forced to resort to the Railway Labor Act to remedy this
bastardization of their rules. Any majority that imagines that
this, or any other
organization, will
allow others to decide whether
we can perform work reserved to us by written contract, is plainly
"out of their collective skulls."
The evidence of record before this Board proves beyond any
doubt that a travesty of justice has been committed by the majority.
The same evidence of record unrefutably portrays that the
findings
and conclusion of the majority are palpably erroneous, and to which
this vigorous dissent is` directed.
George R. DeHa e
Labor Member
- 4 - (LABOR MEMBER'S DISSENT TO AWARD
NO. 7036, DOCKET NO. 6725-T)