NATIONAL RAILROAD ADJUSTMENT BOARD
Edward F. Carter, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
NORTHERN PACIFIC RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood:
(1) That the Carrier violated the terms of the Clerks' Agreement when on or about July 18, 1951, it assigned two positions at
the Butte, Montana, Freight House in a seven-day service.
(2) That Mr. Steve Sepeevich, Checker, and/or his successors,
if there be any, be compensated at time and one-half times the rate
of $14.036 per day for overtime worked on Saturdays and Sundays
from July 18, 1951 to February 1, 1954, when the arrangement
causing this grievance was discontinued.
(3) That Mr. Steve Sepcevich, Checker, and/or his successors,
if there be any, be paid a minimum day at aily straight time rate
of $14.036 for each Tuesday and Wednesday, effective as of July
18, 1951, on account of being assigned in such a manner as to require him to suspend work on such days to absorb overtime on Saturdays and Sundays, this payment to continue up to and including
February 1, 1954 when the arrangement causing the grievance was
discontinued.
(4) That Mr. Claude Leverton, Relief Foreman and Checker,
and/or his successors, if there be any, be compensated at time and
one-half times the rate of $14.036 per day for each Saturday when
worked as a Checker and time and one-half times the $14.804 per
day for each Sunday when worked as a Foreman, such payment to
cover the period from July 18, 1951 to February 1, 1954 when
the arrangement causing this grievance was discontinued.
(5) That Mr. Claude Leverton, Relief Foreman and Checker,
and/or his successors, if there be any, be paid a minimum day at
daily straight time rate of $14.036 for each Thursday and Friday,
effective as of July 18, 1951, on account of being assigned in such a
manner as to require him to suspend work on such days to absorb
overtime on Saturdays and Sundays, this payment to continue up to
and including February 1, 1954 when the arrangement causing this
grievance was discontinued.
(1027
7376-20
121
he was required to perform on rest days. Inasmuch as the assignment should have been on a 6-day basis rather than on a 7-day
basis, the claim properly should be for one day held out of service
at a pro rata basis and for the overtime rate on rest day. This Board
has frequently ruled that penalties cannot be pyramided. We have
also ruled that in the absence of exceptional circumstances requiring a contrary conclusion, where two or more violations carrying different penalties are established, the higher of the several penalties
involved is the one to be imposed. See Award 5423. Accordingly,
in the case the appropriate penalty is one day's pay on a pro rata
basis for each week during the period in question."
In spite of the evidence in this docket, should this Division find that
Sunday service is not essential to the successful operation of the Butte warehouse, any claim retroactive beyond ten days prior to June 30, 1952 cannot
be considered in the application of Rule 55 of the current Clerks' Agreement.
As shown by Carrier's Exhibit "A", Superintendent C. W. Coil declined
the claim presented in behalf of Relief Foreman-Checker Leverton and
Checker Sepcevich to Division Chairman Tony Cocchiarella on November 12,
1951. On July 23, 1952, or some eight months later, an appeal was made to
Assistant General Manager C. Corser. Rule 55, which applies to disputes
growing out of the interpretation and application of the Clerks' Agreement
(Award No. 595 of this Division), provides that appeals must be made within
thirty days from the date of the decision appealed from. Therefore, any claim
beyond ten days prior to July 23, 1952 is barred from consideration.
The Carrier has shown that work handled in Butte warehouse is necessary
on Saturdays and Sundays and cannot be dispensed with. Consequently, this
claim should be denied in its entirety.
All data in support of the Carrier's position in connection with this
claim has been presented to the duly authorized representative of the Employes
and is made a part of the particular question in dispute.
(Exhibits not reproduced.)
OPINION OF BOARD: Claimants are employes working in Carrier's
freight house at Butte, Montana. Prior to the forty hour week, the freight
house was a six day operation, with some overtime work being performed on
Sundays. On July 18, 1951, Carrier instituted seven day service by assigning Claimants to work on Sundays. Effective February 1 1954 Carrier returned to the same method of operation as existed prior to July
18,
1951, and
thus terminated the claimed violation of the Agreement. The issue presented
in this case is whether or not Carrier violated the Agreement in operating the
freight house on a seven day basis from July 18, 1951 to February 1, 1954.
The Carrier contends that this claim is barred by the time limit provisions
contained in Rule 55 (b), current Agreement. An examination of Rule 55
shows that its provisions deal with discipline and grievances. It has no application to claims involving the interpretation of the rules and losses of compensation growing out of rule violations. A party has a reasonable time in
which to progress a claim to this Board in the absence of contractual provisions fixing time limits. The contention that this claim is barred by lapse of
time is without merit.
The record in this case shows that prior to the five day work week agreement, the freight house was operated six days per week, Monday through
Saturday. After September 1, 1949, all employes were assigned to a five day
work week on six day positions, no employe being assigned to work on Sunday.
On July 18, 1951, the two Claimants were assigned to work on Sundays.
It is the position of the Organization that the Carrier was not permitted
under its Agreement to institute seven day service and that Claimants were
therefore improperly assigned when Sunday was included as one of their
work days.
7370-21
122
The freight house handles inbound freight shipments arriving by rail
and highway trucks which are destined for reloading into outbound cars and
trucks, or for reloading into local pickup and delivery trucks. Outbound
freight includes freight received from local shippers. The record shows that
it has been necessary to use some employes on Sundays on an overtime basis.
To avoid this overtime pay, Claimants were regularly assigned to work on
Sundays. The Carrier shows that there are trucks arriving at the freight
house after closing hours on Saturdays and on Sundays which were held
over for the early morning shift commencing work at 5:00 A. M. There are
trucks leaving the freight house from 6:30 A. M. on. There is one truck
that departs at 1:30 A. M. which is usually loaded on Saturday prior to its
Monday morning departure. A joint check of the work performed by Claimants on a Sunday when they were occupying the Sunday assignments shows
that they spent their time in loading out the trucks for departure early
Monday morning. The record shows that there has been no change in rail
or truck schedules for several years prior to July 18, 1951, and that the
work has been performed the same as prior to July 18, 1951, since regularly
assigned Sunday work was abandoned on February 1, 1954. It is clear from
the record also that no operational problem arose which justified the institution of seven day positions at the freight house. It is true that there was
some extra work performed on Sundays but it does not appear to have been
any greater than it was when the forty hour work week became effective.
Where there has been no additional need brought about by some change in
circumstances that creates a need for seven day service, the rules of the
forty-hour week Agreement do not permit the institution of seven day
service where it did not exist before.
The language used in Rules 30-1 (d) and 33 (c) sustain this view. They
provide:
"On positions which have been filled seven days per week any
two consecutive days may be the rest days with the presumption
in favor of Saturday and Sunday." Rule 30-1 (d), current Agreement.
"Previously existing provisions that punitive rates will be paid
for Sunday as such are eliminated. The elimination of such provisions does not contemplate the reinstatement of work on Sunday
which can be dispensed with. On the other hand, a rigid adherence
to the precise pattern that may be in effect immediately prior to
September 1, 1949, with regard to the amount of Sunday work that
may be necessary is not required. Changes in amount or nature of
traffic or business and seasonal fluctuations must be taken into account. This is not to be taken to mean, however, that types of work
which have not been needed on Sundays will hereafter be assigned
on Sunday. The intent is to recognize that the number of people on
necessary Sunday work may change." Rule 33 (c), current Agreement.
It is not contemplated by these rules that Carrier's method of operation
is frozen as of September 1, 1949, the effective date of the forty hour week
Agreement. It is specifically provided in Rule 33 (c) that "a rigid adherence
to the precise pattern that may be in effect immediately prior to September
1, 1949, with regard to the amount of Sunday work that may be necessary
is not required". But this authority is limited by other language in the rule.
It is stated therein that "the elimination of such provisions does not contemplate the reinstatement of work on Sunday which can be dispensed with". It
further states that "changes in amount or nature of traffic or business and
seasonal fluctuations must be taken into account". It is stated definitely
that types of work which have not been needed on Sundays will not be
thereafter assigned on Sunday. Construing the rules as a whole, they simply
mean that Sunday assignments will remain as they were before the forty
hour week except where there has been such a change in operating conditions
due to a change in the nature or amount of business, or other changed condi-
7370-22
193
tions which makes Sunday work necessary. The presumption is that work
is not required to be performed on Sunday when it was not required to be
so performed before the forty hour week Agreement. The Carrier is required
to overcome this presumption by evidence that changed circumstances necessitated the institution of seven day service. There is no evidence in the
present case of any changed conditions which warranted any seven day
assignment. Before as well as after the seven day assignments here made
the work was performed without any regularly assigned Sunday work. There
would appear to be no better proof that Sunday work was not required than
the fact that it was so performed before and after the Sunday assignments
of which complaint is here made. We do not think these Sunday assignments
were justified at the Butte freight house and that they were in violation of
the Agreement. This result is sustained by the principles announced in Awards
1566, 1644, Second Division; 5247, 6232, 6502, 6695, 6856, Third Division.
The question as to the nature of the penalty for the violations has been
raised. The Board has frequently decided that penalties cannot be pyramided.
Where two or more violations carrying different penalties are established, the
higher of such penalties is the one to be imposed. Awards 5423, 5549, 5638,
6750. Under the foregoing, Claimants are entitled to a day's pay on a pro
rata basis for each day they were improperly held out of service, it being a
higher penalty than time and one-half for rest day work. We hold that
Claims (1), (3) and (5) should be sustained and Claims (2) and (4) denied
under the foregoing Awards.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as
approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That Claims (1), (3) and (5) should be sustained and Claims (2) and
(4) denied.
AWARD
Claims (1), (3) and (5) sustained. Claims (2) and (4) denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago; Illinois this 28th day of June, 1956.
DISSENT TO AWARD NO. 7370, DOCKET NO.
CL-7512
This dissent is directed primarily to that paragraph of the Opinion
holding
"The Carrier contends that this claim is barred by the time limit
provisions contained in Rule 55 (b), current Agreement. An examination of Rule 55 shows that its provisions deal with discipline and
grievances. It has no application to claims involving the interpretation of the rules and losses of compensation growing out of rule
violations. A party has a reasonable time in which to progress a
claim to this Board in the absence of contractual provisions fixing
time limits. The contention that this claim is barred by lapse of time
is without merit" (Emphasis supplied.)
7370-23
124
Rule 55 has nothing to do with the progression of claims or grievances
to this Division of the National Railroad Adjustment Board. Rule 55 (b)
stipulates the time limits in which to progress appeals on the property, in
regular order of succession and in the manner prescribed up to and including
the highest official designated by the Railway Company to whom appeals may
be made. Rule 55 (f) deals with grievances and stipulates that the handling
of grievances on appeal is subject to the provisions of Rule 55 (b).
Rule 55 is captioned, "Discipline and Grievances," and consists of eight
paragraphs; paragraphs (a), (c), (d) and (e) deal with disciplinary matters;
paragraph (b), with the time limits in which to make appeals, in regular
order of succession up to the highest official designated by the Carrier to
handle discipline and grievance claims covered by paragraphs (a), (c), (d),
(e) and (f); paragraph (f) deals with grievances and grants to the employe
or his duly accredited representative the right of appeal as stipulated in
Rule 55 (b) ; paragraphs (g) and (h) apply alike to the other paragraphs.
The facts dealing with the progression of this dispute on the property
are as follows:
September 6, 1951-The Division Chairman representing the
Organization presented claim to the Division Superintendent.
September 10, 1951-The Division Superintendent declined the
claim.
October 23, 1951-The Division Chairman requested the Division Superintendent to reconsider his decision.
November 12, 1951-The Division Superintendent confirmed to
the Division Chairman his denial of the claim on September 10, 1951.
The next official in order of succession to handle an appeal under Rule
55 was the Assistant General Manager, the final official being the Chief of
Personnel.
July 23, 1952-On this date, some ten months after the Division
Superintendent had declined the claim, the General Chairman of the
Organization appealed to the Assistant General Manager. (Rule 55
(b) stipulates that this appeal should have been made within thirty
(30) days.)
August 4, 1952-The Assistant General Manager, in a letter to
the General Chairman, declined the claim.
August 11, 1952-The General Chairman appealed the claim to
the Chief of Personnel.
August 18, 1952-The Chief of Personnel advised the General
Chairman the claim was declined and, in so doing, stated:
"In any view of this case, however, there is no basis for a claim
retroactive to July 18, 1951 in the application of Rule 55 of the
current Clerks' Agreement. Superintendent C.
w.
Coil declined the
claim in behalf of these employes to Division Chairman Tony Cocchiarella on November 12, 19511 and no appeal was taken from Mr.
Coil's decision until June 30, 1952"' (Emphasis supplied.)
' The record discloses that the Division Superintendent initially declined
the claim on September 10, 1951,
' The correct date is July 23, 1952.
7870-24
125
During the entire handling of this dispute on the property up to the
Chief of Personnel, the entire Agreement was before the parties.
Nowhere in the docket is there any denial by the Organization of the
application of Rule 55 (f) to the dispute. In presenting the claim to the
Referee, no argument was advanced on behalf of the Organization to the
effect that Rule 55 (f) had no bearing on or application to a dispute such
as covered by this Award The following was advanced to the Referee:
"* * * We observe that this carrier raises no issue of socalled `unconscionable delay' by the petitioner in appealing this dispute to the Board, relying solely upon the above stated application of
Rule 55 (f) with respect thereto." (Reference is made to Chief of
Personnel's statement, quoted above.)
Award 6330 by this Division was handed the Referee. That Award involved the same parties as are here involved. An analysis thereof indicates
clearly it was not sustained on the grounds of non-applicability of Rule 55 (f)
to the dispute. It should be noted that no reference to the citation of Award
6330 is made in Award 7370 covering the instant dispute, and to which
Award this dissent is directed.
The unrefuted fact remains that the claim presented by the Division
Chairman was declined on September 10, 1951, and that in answer to the
Division Chairman's communication of October 23, 1951, the Division Superintendent, on November 12, 1951, reiterated his denial of September 10 1951.
The Assistant General Manager was the next official in the regular order of
succession to handle appeals. The record discloses this claim was not handled
with the Asssitant General Manager until July 23, 1952 or some ten months
after the Division Superintendent had initially declined it. Nowhere in the
docket is there any agreement between the parties extending the time limits,
as provided for in Rule 55 (g). The Employes failed to appeal this case within
the time limits prescribed by Rule 55 (b).
The attention of the Referee was directed to Award 595 of this Division,
issued under date of March 24, 1938. That Award involved the same parties
as in the present dispute; it also involved Rule 41, titled "Grievances," of
the Agreement then in effect. Rule 41 is identical to Rule 55 (f) now before
us. Referee Frank M. Swacker, in his Opinion in Award 595, stated:
"As to the carrier's contention, however, that a part of the
claim is barred by the operation of Rule 41, the Board is of the
opinion that it is sound, and that the claim so far as it relates to
Sundays more than 10 days before Sept. 16, 1936, is barred. There
is a sharp conflict of authority on whether Rule 41 should be deemed
to be a cut-off rule or should be limited to situations analogous to
discipline. In Award 417 this Board held that it was a limitation on
grievances of the sort here involved while in Award 444 it held to
the contrary. It is considered that Award 417 represents the weight
of authority on the subject and it is consequently followed. This,
of course, does not bar complaint at any time concerning a continuing violation; it merely limits retroactive reparation to ten days
before complaint"
and in his Findings held:
"That A. V. Shaw, weighmaster at Auburn, is entitled to time
and one-half for service performed on Sundays from 10 days previous to Sept. 16, 1936, to and including Nov. 2, 1936."
and in the Award stated:
"Claim sustained to the extent indicated by the findings."
Ample support for the conclusions of Referee Swacker in Award 595
is in the testimony of Mr. George M. Harrison, President of the Brotherhood
7370-25
126
of Railway and Steamship Clerks, Freight Handlers, Express and Station
Employes, before the Hearing of the Committee of the House of Representatives on HR-7650 (pp. 80, 81) when urging the adoption of the bill
which resulted in the enactment of the Railway Labor Act, Amended:
"Now, as a brief explanation of the character of those disputes,
they might very well concern a man's seniority, whether or no his
date is the proper date; might very well concern whether or no he
has been paid the proper amount of compensation for a particular
class of work performed, as the contract provides shall be paid. It
may very well concern the separation of an employs from the service,
whether or no he has been unjustly dismissed. It very well may
concern the promotion of a man, whether he should have been
accorded promotion, in accordance withohis ability and his seniority
in keeping with the rules of the contract; whether or no he was laid
oft in his seniority order; if he had not been taken back in his
seniority order."
.1s
s a
"So, out of all of that experience and recognizing the character of the services given to the people of this country by our
industry and how essential it is to the welfare of the country, these
organizations have come to the conclusion that in respect to these
minor grievance cases that grow out of the interpretation and/or
application of the contracts already made that they can very well
permit those disputes to be decided, if they desire to progress them,
to be decided, by an adjustment board."
If a claim for reparaton is not a "grievance;" then the long accepted and
understood meaning of the word, as used in the railroad industry, and the
testimony of this competent witness, Mr. Harrison, the chief executive of
the proponents of the legislation, are worthless.
In this dispute, claim for reparation should have been limited from
ten days prior to July 23, 1952, to February 1, 1954, therefore, we dissent.
/s/ C. P. Dugan
/s/ R. M. Butler
/s/ W. H. Castle
/s/ J. E. Kemp
/s/
J. F. Mullen
CONCURRING OPINION TO AWARD NO. 7370, DOCKET NO.
CL-7512
The Labor Members concur in the Opinion of Referee Carter in this
Award wherein he stated: "We do not think these Sunday assignments were
justified at the Butte Freight House and that they were in violation of the
Agreement". What the referee has here said is in complete harmony with
the views of the two Members of the President's Emergency Board, Messrs.
Leiserson and Cole, who later, while serving as arbitrators through selection
by Railroad Managements and the involved Unions Nationally, actually wrote
the National 40-Hour Work Week Rules, particularly the principal rules
upon which the dispute in Award 7370 turned; namely the Seven-Day Positions Rule, and the Sunday Work Rule. As evidence of the foregoing we
refer to Award 6695 authored by Dr. Leiserson while serving as referee on
the Third Division; also to the Opinion of the Majority, Board of Arbitration,
NMB Case No. 212, authored by David L. Cole, Chairman. Award 6695 is
on file in the Third Division, National Railroad Adjustment Board and by
reference is made a part of this Concurring Opinion.
With respect to the Seven-Day Positions Rule, Dr. Leiserson in Award
6502 said:
7370-26
127
"Since there were no seven-day positions prior to September 1,
1949, and the operational requirements could be met by six-day
positions supplemented by Sunday calls, we think the rules require
the Carrier to continue this method of handling the work, in the
absence of changes in traffic or business that might make it necessary to work full days on Sundays the same as week days. (Award
5710 reaches the same result in a similar situation)."
Regarding the Sunday Work Rule, Dr. Leiserson in Award 6695 also
stated:
"This rule begins by taking away the right to overtime pay for
Sunday work which employes had for many years before the 40Hour Work Week was agreed to. The first sentence stipulates:
'Previously existing provisions that punitive rates will be paid for
Sunday work as such are eliminated.' This, however, was conditioned
by the statement in the second sentence that 'The elimination of such
provisions does not contemplate the reinstatement of work on Sunday
which can be dispensed with.' Then, to guard against freezing of
the pattern as it existed prior to September 1949, there follows the
provision that a rigid adherence to that precise pattern is not required, but changes in traffic or business must be taken into account.
Finally, after explaining that this does not mean that types of work
not needed prior to September 1949 will thereafter be assigned on
Sunday, the last sentence of the rule sums up that 'The intent is to
recognize that the number of people on necessary Sunday work may
change.'
This rule, so carefully balanced to safeguard the respective
rights of both parties in the matter of Sunday work offers no basis
for a general inauguration of Sunday work where previously this
has not been necessary."
In connection with these two rules, in his Opinion of Majority, Mr. Cole,
Chairman, in Board of Arbitration NMB Case No. 212 said in part:
"The position of the Organization, on the other hand, is summarized and supported by the following statement by Referee Leiserson in Award 6695:
'This claim can only be upheld if the contractural provisions of its 40-Hour Agreement with the Clerks permit it.
Examining Rule 35 (d) which governs 7-day service, we
find that the rule states that any two consecutive days may
be the rest days on positions which "have been filled 7 days
per week." (Emphasis added.) Admittedly, the positions
at Utica have not been filled seven days a week either before or after September 1, 1949, except by special arrangements during World War II. Accordingly we cannot hold
that this rule authorizes the proposed change from the
present 5-day service to a 7-day operation.'
We subscribe basically to the interpretation of Referee Leiserson. We do so, in brief, because we find that the parties in agreeing upon Sections 1 (a), 1 (b), 1 (c), 1 (d) and 1 (j) made it
clear that seven-day operations stand on different grounds from sixday and five-day operations by using guarded and carefully drawn
language distinguishing the three kinds of work weeks. We find that
the seven-day operation, unlike the other two, is closely tied to the
Sunday Work Rule, which rule did away with the long-established
practice of premium pay for Sunday as such, but assured the employes that seven-day types of work previously dispensed with by
the Carrier would not be reinstated now that it may be done at
straight time and that types of work which have not been needed
7370-27
128
. on Sundays will not hereafter be assigned on Sunday. To avoid mis-
understanding or misquotation, however, it must be pointed out that
neither Section 1 (d) nor Section 1 (j) stipulates that the prior
Sunday work must have been paid for either at the rate of time and
one-half or straight time. Read with the test stipulated in Section
1 (d) that speaks of seven-day positions as those which have been
filled seven days per week, this makes the intent of the parties quite
plain.
The reference to staggered work weeks in accordance with
operational requirements applies to six-day operations, as distinguished from five-day, and also to seven-day operations which may
properly be carried on by one or more of the many classes or crafts
of employes who are parties to the agreement, and in any event is
definitely and explicitly qualified. by the more specific sections which
follow Section 1 (a). The provisions in Section 1 (j) which speak
of non-rigid adherence to existing patterns, and taking into account
changes in traffic and seasonal fluctuations, relate to changes in the
amount of allowable Sunday work and to changes in the number of
employes on necessary Sunday work. These provisions provide a
framework within which the Carrier has latitude and flexibility, but
they do not permit the inclusion of a new type of Sunday work which
does not meet the essential contractual test.
This test set up in the agreement is a simple pragmatic test
which leaves little possibility of disagreement or dispute over the
meaning of the word 'necessary' or over the facts, unlike the tests
applicable to five or six-day operations. The efforts of the parties
in arriving at the language indicates that they meant to set up a
simple and undebatable test. Enlisting the services of the former
members of the Emergency Board as interpreters, mediators, and
finally as arbitrators shows this."
Arbitration Board Award, Case No. 212 is a public document on file
in the District Court of the United States for the Northern District of Ohio,
Eastern Division. It is hereby made part of this Concurring Opinion to
Award No. 7370 and reads:
"In Arbitration
NATIONAL MEDIATION BOARD
Between NMB CASE NO. 212
New
York Central Railroad Company
AWARD OF
and BOARD OF ARBITRATION
Brotherhood of Railway
and Steamship Clerks,
Freight Handlers, Express
and Station Employes
Appearances:
For the Carrier
R. C. Bannister, Esq., of Chicago, Attorney
L. B. Fee, Director of Labor Relations
For the Labor Organization
Lester Schoene, Esq., of Washington, Counsel
Earl Kinley, Vice President
George Price, General Chairman
William Winston, General Chairman
G. G. Younger, General Chairman
7370-28
129
Pursuant to an arbitration agreement entered into by the
above-named parties on March 28, 1956, under the provisions of
the Railway Labor Act, and in accordance with the extension of
time within which to file its award agreed upon by the parties, the
Board of Arbitration consisting of L. W. Horning, Carrier-named
member, George M. Harrison, Labor Organization-named member,
and David L. Cole, Chairman, having duly heard the parties and
considered their evidence and arguments, does hereby make its award
as follows:
It answers the specific question set forth in paragraph
'Fourth' of said arbitration agreement in the negative; that
is to say that the party of the first part, the Carrier named
above, did not have the right to establish a five (5) day
staggered work-week, including Sunday as a regularly
assigned work day, at the freight transfer stations in
Utica, Syracuse, and Buffalo, New York, Cleveland, Ohio,
Detroit, Michigan, and Gibson, Indiana under the so-called
Forty-Hour Week Agreement which is in effect between
the parties hereto.
/a/ David L. Cola
David L. Cole, Chairman
June 4, 1956 /a/ Goo. M. Harrison
George M. Harrison, Member"
The Opinion of Majority of the Board of Arbitration, NMB Case No.
212, David L. Cole, Chairman, is likewise made a part of this Concurring
Opinion and reads;
"National Mediation Board
NMB Case No. 212
"In Arbitration
Between
New York Central Railroad Com- "Opinion of .
pany
Majority of the
and
Board of Arbitration
Brotherhood of Railway and Steam
ship Clerks Freight Handlers, Ex
press and Station Employes.
"Appearances:
"For the Carrier
R. C. Bannister, Esq., of Chicago, Attorney
L. B. Fee, Director of Labor Relations
"For the Labor Organization
Lester Schoene, Esq., of Washington, Counsel
Earl Kinley, Vice President
George Price, General Chairman
William Winston, General Chairman
G. G. Younger, General Chairman
"On March 28, 1956 the parties named above entered into an
arbitration agreement naming L. W. Horning and George M. Harri-
7370-29
130
son as their representative members of the Arbitration Board, and
thereafter David L. Cole was duly designated as the third member
and Chairman. The issue before the Board is stated in Paragraph
Fourth of this agreement as follows:
`The specific question to be submitted to the Board for
decision is: "Did the party of the first part have the right
to establish a five (5) day staggered work-week, including
Sunday as a regularly assigned work day, at he freight
transfer stations in Utica, Syracuse, and Buffalo, New
York, Cleveland, Ohio, Detroit, Michigan, and Gibson,
Indiana under te so-called Forty-Hour Week Agreement
which is in effect between the parties hereto"."
"Hearings were held in Washington, D. C. on seven days between May 3 and May 15, 1956 and the Board met in New York
City on June 4 1956 to consider the evidence and arguments and
to arrive at its decision and make its award.
"The form of the question submitted was in effect a request
for a ruling in the nature of a declaratory judgment. It calls for
the construction of certain provisions of the national agreement of
March 19, 1949 to which Class I railroads and sixteen cooperating
railway labor organizations were parties, including the New York
Central Railroad Company and the Brotherhood of Railway Clerks,
the Carrier and the Organization parties in this arbitration proceeding.
"This agreement of March 19, 1949 is usually referred to as
the Forty Hour Week Agreement, and its provisions have been
incorporated as rules into the collective bargaining agreements on
the several railroad properties. The provisions requiring interpretation are part of Article 11, Section 1 of the national agreement,
and, in identical words, of Rule 35 of the New York CentraiBrotherhood of Railway Clerks agreement. We sball use the article
and section designations of the national agreement in this opinion,
in line with a similar course followed by the parties at the hearings.
"Among the six freight transfer stations named in the sub
mitted question is that at Utica. This station has twice been the
subject of rulings by the National Railroad Adustment Board, once
in Award No. 314 on October 9, 1936, and again on June 25, 1954
in Award No, 6695. In the earlier award claims of employes es at
this freight transfer station were sustained, holding that Sunday operation was not necessary to, or a necessary part of, the con-
tinuous operation of the Carrier as defined in the Sunday Work
Rule of the then prevailing agreement. This is interesting as background material and as a demonstration of the difficulties encountered in determining the meaning of the word `necessary,' but since
the old Sunday Work Rule has been abolished by the Forty Hour
Week Agreement, and the type of necessity there described has been
changed by the current
agreement, it
cannot be held that Award 314
constitutes a binding ruling either under the Railway Labor Act
or under the doctrine of res judicata, as to the question before us
insofar as it applies to the Utica transfer station.
"Award 6695, however, stands on a totally different footing.
There the question submitted was essentially the same as that
before this Arbitration Board, namely, 'the right of the Carrier to
operate its Utica Freight Transfer House by means of staggered
working assignments on seven days each week at straight time rates
under the terms of the National Forty Hour Week Agreement.'
Moreover, as the case was presented and ruled on, it was governed
by the very contract provisions, the same arguments and substan-
7370-30
1:31
tially the same evidence as have been offered and urged in our case,
except that we have the benefit of later data. The Carrier urged
that Award 6695, as part of an administrative as distinguished
from a judicial proceeding is not entitled to the force of res judicata.
This, however, by-passes the effect of Section 3 (m) of the Railway
Labor Act, which states:
'The awards of the several divisions of the Adjustment
Board shall be stated in writing. A copy of the awards
shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both
parties to the dispute, except in so far as they shall contain
a money award. In case a dispute arises involving an interpretation of the award, the division of the Board upon
request of
either party shall interpret the award in the
light of the dispute.'
"It is true, as the Carrier pointed out, that a number of
referees in Adjustment Board cases have overruled prior decisions
on the grounds generally that such decisions were unsound in fact
or not based on good reasoning. In none of the references to such
cases, as submitted in evidence before us, was any mention made
of Section 3 (m) of the Act, nor of the fact that Congress as a
'matter of policy while providing no appeal from Adjustment Board
awards nevertheless made such awards final and binding on the
parties. By what authority subsequent Adjustment Boards may
ignore this clear legislative direction we can not understand, nor
can we get any enlightenment from the quoted portions of the
opinions accompanying the awards which overrule prior awards
in disputes between the same parties on the identical question.
"On the other hand, we see that the United States Circuit Court
for the Fifth Circuit in the recent case of Coats vs. St. Louis-San
Francisco Ry. Co. et al (March 16, 1956, CCH Labor Cases, paragraph 69, 830) found the statutory directive to mean what it says.
The Circuit Court sustained the dismissal of a cause brought by an
employe who sought reinstatement and claimed to have been
wrongfully discharged on the ground that his claim had been ruled
on by the National Railroad Adjustment Board and that the Railway
Labor Act makes such awards final and binding on the parties
irrespective of whether the submission to the Adjustment Board
was mandatory or voluntary. Other cases are cited and discussed
in the Coats opinion.
"The Carrier in our case was the moving party in the case
leading to Award 6695, so that there is no point to be made as to
whether it was a voluntary or mandatory submission. Nor is there
any question concerning the jurisdiction of the Adjustment Board
in that case.
"The doctrine of res judicata technically applies only to judicial
proceedings, and is designed to put an end to litigation between
parties over a given issue. A similar doctrine may be made applicable
to administrative proceedings, which serve as a substitute for court
litigation, either by legislation or by voluntary agreement. No citation of authority is needed at this late date to support the proposition
that agreements to arbitrate which stipulate that the award will be
final and binding on the parties will sustain a defense in the nature
of res judicata if an action is brought in court by the disappointed
party after an arbitration award has been rendered. As the Coats
case indicates, the same is true of proceedings processed before
the Adjustment Board under the Railway Labor Act, because
Congress has so directed.
7370-31
132
"We have observed that the issue and arguments presented in
the 1954 Utica case were essentially the same as in our case and
that the evidence offered was very similar except that it was later
brought up to date. The Carrier frankly requests this Arbitration
Board to reverse the Adjustment Board. The statute, however,
provides for no appeal from Adjustment Board awards, in fact
confining disputes even over interpreattion to the division of the
Board which rendered the award. The parties are free in the first
instance, by mutual agreement, to substitute arbitration for submission to the Adjustment Board, but the disappointed party is
not free to urge a subsequent aritration tribunal sitting on the
same dispute between the same parties to disregard the conclusive
force of the prior award of the Adjustment Board.
"This is so, as indicated, because Congress has made it so. It
is not within the proper authority of referees or of the Adjustment
Board to set aside or to ignore this legislative mandate.
"A distinction must obviously be made between this type of
res judicata doctrine and the weight to be given to prior awards on
the same or similar issues as between different parties. There the
question relates to the value to be ascribed to precedents. This
constitutes an area of discretion, because the statute has no declaration or mandatory provision with respect to this. In this area, it
would seem, subsequent Adjustment Boards may elect to give little
or no weigt to prior awards if they find fault with the findings,
reasoning or conclusions. This they have done very freely. It has
led to conflicting rulings on given subjects and to competitive advantages to the more fortunate parties. But other inconsistent rulings
do not relieve the parties from the binding effect of the award in
their own case. The situation is not unlke that when two Circuit
Courts make conflicting constructions of the same statute or contract. Unless the Supreme Court acts, the parties to each Circuit
Court action are bound by their respective judgments or decrees.
"Since there is no appeal in the customary sense from Adjustment Board awards, the parties are unqualifiedly bound by the award
in their case. The remedy obviously for overcoming inconsistencies
is to seek relief through negotiations instituted by a statutory Section
6 notice of desire to modify the rules set forth in the agreement.
Such notices may be given at any time, and in 30 days negotiations
will be under way. In a sense the Supreme Court in this situation
is the bargaining table, and it is a forum readily available and one
which when properly used can provide a great measure of flexibility
and adjustability.
"For these reasons it could be held as to the Utica Transfer
that there is in force a final and binding interpretation of the FortyHour Agreement which legally and authoritatively determines that
at that station, under the Agreement, the Carrier did not have the
right to establish the seven-day operation here in question. But it
would still be necessary, for two reasons, to inquire into the meaning
of the contract provisions because there are five other stations named
in the submitted question: (1) Award 6695 is by Section 3 (m)
of the Act final and binding only as to the dispute or controversy
in that case; (2) the controlling facts and considerations may be
different from those at Utica, just as the parties have conceded
them to be at the Carrier's East St. Louis Transfer Station which
has continually been in operatoin seven days per week. This being
so, the award of this Board as to all six stations will be predicated
on its interpretation of the Agreement, with the effect of Section
3 (m) as merely an additional reason or support for the Board's
conclusion as to Utica.
7370-3z
133
"The Carrier maintains that it must have the right to operate
these freight transfer stations seven days each week for the purposes of meeting competition of over-the-road transportation and
of some other railroads which are now operating such facilities
seven days per week, rendering efficient and satisfactory service to
shippers, retaining or attracting new business, and achieving a
more efcient use of cars and facilities. These, as stated, were
essentially the same reasons asserted in the
1953-1
Utica case. The
Carrier urges that Article II, Section 1 contains provisions which
entitled them to do so because their experience reflects the type of
need called for in these rules to support such seven-day operations,
and, further, that a large number of awards of the Adjustment
Board have so held.
"The contract provisions in question are the following parts
of Section 1 of Article II:
'Section 1. Establishment of Shorter
Work Week
Note
'The expressions "positions" and "work"
used in this Article II refer to service, duties, or
operations necessary to be performed the specified number of days per week, and not to the
work week of individual employes.
'(a)-General- .
'The carriers will establish, effective September 1,
1949,
for all employes, subject to the exceptions contained
in this Article II, a work week of
40
hours, consisting of
five days of eight hours each, with two consecutive days
off in each seven; the work weeks may be staggered in
accordance with the carriers' operational requirements;
so far as practicable the days off shall be Saturday and
Sunday. The foregoing work week rule is subject to the
provisions of this agreement which follow:
'(b)-Five-day Positions---
'On positions the duties of which can reasonably be
met in five days, the days off will be Saturday and Sunday.
'(c)-Six-day Positions-
'Where the nature of the work is such that employes
will be needed for six days each week, the rest days will
be either Saturday and Sunday or Sunday and Monday.
'(d)-Seven-day Positions
,on positions which have been filled seven days per
week any two consecutive days may be the rest days with
'the presumption in favor of Saturday and Sunday.'
s r v x s
'Existing provisions that punitive rates will be paid
for Sunday as such are eliminated. The elimination of
such provisions does not contemplate the reinstatement
of work on Sunday which can be dispensed with. On the
7370-33 134
other hand, a rigid adherence to the precise pattern that
may be in effect immediately prior to September 1, 1949,
with regard to the amount of Sunday work that may be
necessary is not required. Changes in amount or nature
of traffic or business and seasonal fluctuations must be taken into account. This is not to be taken to mean, however,
that types of work which have not been needed on Sundays
will hereafter be assigned on Sunday. The intent is to
recognize that the number of people on necessary Sunday
work may change.'
"It is our function to interpret and apply these rules. We are
not engaged in a contract-making proceeding, nor are we free to
alter or add to the contract provisions, whether we believe them
satisfactory or not.
"There are expressions used in the rules which on their face
seem to justify conflicting awards which have been offered in
evidence. It is submitted, however, that if the pertinent rules and
the explanatory letter of the 1948 Emergency Board members are
read as a whole, one thread will be found running throughout,
which when noted will do much to reconcile the superficial inconsistencies which have led to much of the confusion. This thread is
that the abolition of the long established punitive pay for Sunday
work as such has been coupled with the safeguard, from the employes' viewpoint, that the types of Sunday work dispensed with by
the Carrier prior to September 1, 1949 may not be reinstated. The
operational requirements mentioned in 1 (a), the need referred to
in 1 (c), and the necessary Sunday work spoken of in 1 (j) must
all be related to the specific restrictions placed in Section 1 as a
whole on Sunday work. Such work may be done at straight time
if it is necessary, but the test of this necessity must be that set
forth carefully in the agreement.
"Section 1 (a), the general Forty Hour Week Rule is explicitly
made 'subject to the provisions of this agreement which follow.' In
Section 1 (b) if the duties 'can reasonably be met in five days' the
positions will have the conventional five-day week. In (c) six-day
positions are determined by the proposition that 'the nature of
the work is such that employes will be needed six days each week.'
Arguments and disagreements over the facts may easily arise under
Sections 1 (b) and 1 (c), because the parties may differ as to
whether the duties can reasonably be met in five days or whether
the nature of the work is such that employes will be needed six
days each week.
"But when we examine Section 1 (d) we see no room for
argument. A pragmatic, undeniable test is set forth, which is
`on positions which have been filled seven days per week.'
"The Carrier has urged that this merely identifies the days
off, but this position cannot be squared with the fact that (b),
(c) and (d) are explicit qualifications of the general work week
provisions of Section 1 (a). Nor, significantly, can this contention
explain away the two pointed senences in Section 1 (j):
'The elimination of [punitive pay for Sunday as such)
does not contemplate the reinstatement of work on Sunday
which can be dispensed with.'
'This is not to be taken to mean, however, that types
of work which have not been needed on Sundays will hereafter be assigned on Sunday.' (Emphasis added.)
7370-34
135
"Some light as to what was intended on the subject of Sunday work may be gleaned also from the letter of interpretation of
February 27, 1949 which was written, at the joint request of the
carriers and the 16 non-operating labor organizations, by the three
members of the 1948 Emergency Board. A good deal of the language
of Section 1 (j) was taken verbatim from the paragraph of this
letter dealing with Sunday work. In this paragraph it was stated
that the Board expressly denied the Organizations' requests for a
uniform Monday-Friday work week and punitive pay for Saturdays and Sundays as such. It goes on to say:
'It had in mind the continuous nature of some of the
operations on railroads. Work which at one time had been
performed seven days per week has been cut down to six
days, and avoidable Sunday work has largely been eliminated by force of the penalty pay provisions included in
the agreements. Certainly the Board did not contemplate
the reinstatement of work on Sundays where it has been
found it can be dispensed with. This would be a distortion
of its reason for recommending the elimination of penalty
pay on Sundays as such.'
"Then follow four sentences identical with the four concluding
sentences of Section 1 (j).
"The Carrier, and several referees who have given controlling
weight to them, properly inquire, then, as to the meaning and
purpose of the expressions or provisions in Section 1 (a) and 1 (j):
(1) 'in accordance with the Carrier's operational
requirements'
(2) 'a rigid adherence to the precise pattern that
may be in effect immediately prior to September 1, 1949,
with regard to the amount of Sunday work that may be
necessary is not required. Changes in amount or nature
of traffic or business and seasonal fluctuations must be
taken into account'
(3) 'The intent is to recognize that the number of
people on necessary Sunday work may change'
"The operational requirements mentioned in 1 (a) have broad
and general application in determining the type of work week and
also the fluctuations referred to later in Section 1. It is also of consequence and applicability in sub-sections (e), (f), (g) and (h)
which deal with relief assignments, deviations from the MondayFriday week, non-consecutive rest days, and rest days of extra or
furloughed employes. As a general reference, it must give way
before more detailed provisions relating directly to specific matters.
"The second and third quotations are intended to provide
flexibility with respect to the expansion or contraction of the amount
of necessary Sunday work. Since the determination of what is
necessary Sunday work, under the agreement, depends on the simple
test of whether the Carrier has been filling the types of positions
in question on Sunday, meaning obviously prior to the effective date
of the Forty Hour Agreement, the words necessary Sunday work'
refer to such work as is allowale by the provisions of the agreement.
Such types of necessary work may be enlarged in terms of numbers
of employes as well as of additional locations. These are the respects in which the Carrier is given latitude, that is to say, in the
words of 1 (j), in 'the amount of Sunday work that may be
necessary' and in 'the number of people on necessary Sunday work.'
7370-35
136
"But, to repeat, the determination of this necessity and of
the types of work that may be performed on Sundays as part of
a staggered work week is governed by the prior practice of the
Carrier.
"We must remember that, before September 1, 1949, carriers
had in force six-day work weeks, and the old Sunday and Holiday
Work Rule, adopted in revised form in 1923, called for time and
one-half for Sunday work, except where such work was necessary
to the continuous operation of the carrier, in which case employes
regularly assigned to Sunday service were paid at straight time.
In two interpretations of this rule, one in arbitration in 1931, and
the other by the National Railroad Adjustment Board in 1936
(Award 314), it was held that typical transfer and freight stations
of the New York Central were not necessary to the continuous
operation of the Carrier, as defined in this rule, and hence that
employes assigned to Sunday work were entitled to time and onehalf. Award 314 interestingly dealt with the Utica Transfer Station
and the earlier arbitration award with the Carrier's Granton Transfer Station. The factual substance is that even if seven-day operation at Utica Transfer was not necessary to the continuous operation
of the railroad, as indeed its operation for years after the making
of Award 314- demonstrated, it may still have had some other degree
of necessity which would have warranted its operation seven days
per week even though this required time and one-half for the Sunday
work done by regularly assigned employes. For a period this was
done, but, starting in 1947 the seven-day operation was discontinued
in favor of six-day operations and this was still in effect on September 1, 1949, the effective date of the Forty Hour Agreement. It
thus fell into the category of 'avoidable Sunday work [which] has
largely been eliminated by force of the penalty pay provisions,'
to borrow a phrase from the explanatory letter of the board members
in February, 1949, and, in the contract language of Section 1 (j),
of 'work which can be dispensed with' or 'types of work which have
not been needed on Sunday.'
"This leads again to the appropriate measure of need or necessity to be applied.
"The differences in language as among Sections 1 (b), 1 (c),
and 1 (d) must not be taken lightly. Normally, if similar considerations were intended to be taken into account then similar expressions
would have been employed. The five-day, six-day, and seven-day
operations could all have been made determinable simply by operational requirements, or by the provision 'where the nature of the
work is such that employes will be needed.' That this was not done
is significant, and the explanation is that seven-day positions call
for Sunday work at straight time rates, and the withdrawal of punitive pay for Sunday work was coupled with the restrictions against
the reinstatement of such work as can be dispensed with and the
assignment of types of work on Sunday that have not been needed
on Sundays. The five-day and six-day positions are independent of
the Sunday work provisions of the contract, but not so with the
seven-day positions. It should be added that te provision in Section
1 (a) that work weeks maybe staggered in accordance with the
Carrier's operational requirements has meaning with reference to
six-day as well as seven- day operations, since both call forgg
staered
work weeks, and it also has meaning with reference to numerous
, a t,
si d v whether _ the Clerks brgmmg
"upati." po lions a' S t,
aa~s and
0
w .. ti~ u " t p t as1s J"e t Forty_Hou, A grey
7370-36
137
"It is respectfully suggested that in most of the awards favorable to the Carriers' viewpoint on this subject the majorities on
the Adjustment Board neglected to observe or to give proper weight
to these language differences and to recognize that the seven-day
positions are regulated by both Section 1 (d) and 1 (j). The result
has been not only conflicting awards but the introduction of a variety
of definitions of need or necessity, together with rules concerning
presumptions and burden of proof which do not appear in the
agreement itself.
"To repeat, it is our view that the test as to whether a position
may be regularly filled seven days per week is the simple one set
forth in Section 1 (d) and in essence repeated in Section 1 (j),
namely, has the Carrier been filling it seven days per week. This
establishes the need, without room for argument, because the Carrier has demonstrated the need by its prevailing practice.
"But what is the nature of the reasoning in awards cited as
favorable to the Carrier?
"Examining a substantial sample of them chronologically, we
see in Award 5247 of March 9, 1951, that Sunday work may be
done if it is 'essential for prompt performance,' but that 'merely to
show greater efficiency, or that the work could be done more economically, will not alone establish a basis that Sunday work is needed.'
"In Award 5581, of December 14, 1951, one rule, that which
in the agreement relates solely to six-day operations, is applied to
both six-day and seven-day positions without distinction. The
opinion states:
'It is apparent that the Carrier in the first instance
should be the judge of its operational requirements. It necessarily follows under the Forty-Hour Week Agreement discretion with respect to staggering work weeks of forces
engaged in work of a nature requiring six or seven days
protection rests with the Carrier . . . the Carrier's desire
in this respect is not absolute. It may not deprive employes
of Saturday and Sunday as rest days on an arbitrary or
capricious determination that the work is of such a nature
that employes will be needed six or seven days per week.'
"The opinion also places the burden on the employes of overcoming the determination of the Carrier that operational requirements are better met by having staggered work weeks.
"On the same day Award 5589 was issued. In this award the
right to establish six and seven-day positions is held to be 'founded
upon the need for employes to protect services, duties or operations
that number of days each week.' It was also asserted that, in itself,
the establishment of six or seven-day operations is evidence of the
Carrier's good faith because in doing so the Carrier incurs more
payroll expense than in covering such positions only five days.
"In Award 1566 (August 1, 1952) the view was expressed that
the operation of positions on a five, six or seven-day basis depends
on whether the services are necessary but this rule of necessity
must be distinguished from mere convenience.
"In December, 1952 a series of similar awards was issued, of
which the basic one was Award 1599. There it was stated that
Sunday work is permissible if `found necessary in the light of the
Carrier's operational requirements.' The performance or nonperformance of work on Sundays just before September 1, 1949
7370-37
138
was held to raise a presumption of necessity or non-necessity,
and where there is such an affirmative presumption the burden is on
the employes who are claimants to show that the Carrier's operational requirements have changed since then so that Sunday operations are no longer necessary. It was also ruled that the employes
have the burden of proving that Sunday work at pro rata rates is
not necessary to the effective operation of the Carrier. The ruling
was favorable to the Carrier in this case on the finding that the
employes did not successfully refute the Carrier's evidence that
its competitive position would [otherwise] be somewhat jeopardized
and the well-being of shippers and, to some extent, of the country
would be lessened.
"In January, 1953 in Award 6075, a seven-day operation in
a terminal accounting bureau was approved on the ground that it
was necessary to the proper and efficient functioning of the railroad.
"Shortly thereafter, in March, 1953, approximately a dozen
related awards were issued involving the work weeks of carmen. The
first was Award 1644. Sunday work had not been regularly assigned
before September 1, 1949 but it had been performed on employes'
rest days on a time and one-half basis. It was held that:
`The agreement does not prohibit the assignment of a
type of work on Sunday after September 1 1949 even
though it was not so assigned prior to that date if such
work is necessary to be performed on Sundays. The proof
required must, however, be sufficient to overcome the presumption that it is not necessary to be performed on Sunday because of the fact that it was not so performed prior
to the advent of the Forty-Hour Work Week Agreement.
But in the case before us, it is clear that the work was
necessary to be performed on Sundays prior to September
1 1949 and that it was necessary to be performed thereafter. The claimants have failed to establish that Sunday
work was not required . . .
"In Award 1712, of September 23, 1953, the rule is interpreted as follows:
`The record discloses that it has always been necessary
to have these services, duties and operations performed on
all seven days of the week. Consequently, carrier could
assign any two consecutive rest days to employes assigned
thereto subject, however, to a presumption in favor of
Saturday and Sunday.'
"Award 6856 released on January 28, 1956, is, except for
Award 6695, most closely in point with the case before us. The
principal difference is that it arose under money claims filed by
employes, whereas in both the present case and that leading to
Award 695 the matter was presented as a question of the right
of the carrier to put certain positions at freight transfers on a
staggered seven-day basis. In Award 6856 the employes' claims
were denied, the Referee being critical of the findings and conclusions of Award 6695. He expressed the view that the Forty-Hour
Agreement does not preclude the creation of seven-day positions
even if the work was not so assigned prior to September 1, 1949.
The test, he found, was necessity, and the non-performance of the
work prior to September 1, 1949 constitutes 'strong evidence' that
it was not required thereafter, but proof may be offered to overcome
this `presumption.' He also held that the differing language used in
Section 1 (b), 1 (c), and 1 (d), the provisions relating respectively
to five-day, six-day, and seven-day positions, showed no intent
7370-38
139
that one was to be construed any differently from the others. Finally, in referring to Section 1 (j) he made no distinction between
the references to typos of work and amount of Sunday work or
number of people that may be necessary.
"Reverting briefly to the earliest award offered in evidence,
Award 314 of October 9, 1936, we see again the degrees of difference possible when the test revolves around the word 'necessary.'
That case arose under the old Sunday work rule, and 'necessary to
the continuous operation of the Carrier' was the important phrase
requiring interpretation. The Referee said:
. . . the carrier concedes that the word "necessary"
is susceptible of various definitions, and it cites court
decisions to the effect that it need not be construed as
meaning indispensable or absolutely necessary.'
"He spoke then of Decision 1621 of the U. S. Railroad Labor
Board and pointed out that
'The Board in that and other decisions treated the word
"necessary" as indispensable, absolutely essential, and
absolutely necessary.'
"We have seen, in our discussion of most of the awards to
which we have been referred by the Carrier, that some referees
seem to have had difficulty and to have had to do a certain amount
of groping to define the meaning of 'necessary.' Some have also
interpolated a presumption with respect to positions which were
or were not filled seven days prior to September 1, 1949, although
no such presumption is created by the rule. The rule limits the
only presumption it mentions to Saturday and Sunday as the
favored rest days.
"This suggests that the parties were wise in working out their
own simple test of the necessity which would support the Carrier's
right to fill positions on a staggered seven-day basis. Having done
so, as our analysis indicates they have, this feature of their agreement like all others must be construed and applied as written,
intended and understood by the parties.
"The type of disagreement possible over the facts bearing on
whether seven-day operations are necessary or essential may be
illustrated by a few of the factual contentions advanced in this
case. The Carrier insists that the denial of the right to have sevenday operations has been responsible for its great loss of LCL tonnage. During the war and post-war period and up to 1947 these
transfer stations were manned seven days per week to meet the
heavy LCL freight load. The unrefuted evidence is that the sevenday operations were discontinued in favor of six-day operations
because of the decline in volume of LCL traffic. Thus, the decline
in such volume was the cause, not the result, of the discontinuance
of seven-day operations. Moreover, the tendency to transfer relatively more of the LCL business to trucks has been going on since
1940, according to expert traffic witnesses called by the Carrier.
That 1946 was the peak year does not contradict this, for there
were special reasons in the 1941-1947 period for enlarged volume
as a whole.
"The Carrier contends that six-day operations are less satisfactory than five-day operations. It operated on a six-day basis after
the Forty-Hour Agreement, starting late in 1949, for a period of
some two years, and then reverted to five-day operations. Employe
witnesses, however, testified that supervision informed them that
7370-39
140
this reversion to five-day operations was due again to lack of volume
of business and that it was planned later to go back to six-day
operations, and this testimony was not directly contradicted.
"It has not been proven that the drop in LCL volume. has
been caused solely or primarily by the five-day week. Carrier's
traffic expert witnesses testified that the drift to trucks has been
going on since 1940 as truck service has been improving and as
customer demands for speedy delivery have been growing, that even
while the Carrier was on the seven-day week they found it necessary
to use trucks, that shipments from New England to Albany and
from Troy to Pittsburgh have often required 8 to 12 days as compared with 2 to 3 days by truck. Surely all this delay is not chargeable to the five-day or six-day operation of the transfer stations. It
was also testified that traffic managers now very heavily use parcel
post for a major part of certain shipments and that car-loading
services have been growing both by companies performing this
service and cooperative shipping associations, as a result of which
much freight formerly classified as LCL is now moving as carloads.
While this Carrier's LCL tonnage declined sharply from 1948 to
1955, its volume of such carloading traffic increased over 22%.
"The fact unquestionably is that the recent seven-day operations have been more efficient at these transfer stations than the
prior five-day operations. After March, 1956, when the seven-day
schedule was inaugurated, work progressed more expeditiously and
there were considerably less cars left over. This may be ascribed
partly to the use of more total man hours than in the five-day operation, because production per man hour in fact declined by about
6%. But no one could reasonably argue that operations on an every
day basis will not tend to diminish delays caused by the weekend
accumulation of arriving cars, provided a reasonably adequate work
force is employed.
"The question before us, we must remember, however, is not
whether seven-day operations may not be faster and more economical, but whether they may be instituted under the agreement.
"The problems described by the Carrier are not peculiar to
Utica alone, nor to the other five transfer stations involved in this
case, as distinguished from Utica. So far as the evidence reveals,
the problems at all six are identical, with differences only in small
degree.
"The Carrier raised the complaint that it is being discriminated
against competitively. The denial of the right to work these stations
seven days, it asserts, leaves it at a disadvantage with the trucking
industry and with a few other railroads which at certain transfer
stations are able to work on Sundays. Whether the trucking industry
operates comparable transfer operations on Sunday at straight time
was not made clear. Of the railroads which have this privilege, there
are only three, the Erie, D.L.&W., and Pennsylvania, which are competitive with the New York Central. The half-dozen others which
have this right at a restricted number of stations, have it because
they conducted such operations on a seven day basis prior to September 1, 1949, and the Organization concedes that, under the
Forty-Hour Agreement, this permits them to continue to do so at
the stations in question, just as the New York Central is doing, for
the same reason, at its East St. Louis Transfer Station. The Erie
was accorded this right at Hornell by Award 6856. The D.L.&W.
got it for its Scranton Station by an agreement with the Clerks'
general chairman. The Pennsylvania started such operations at
several of its stations in the belief that the rules of the Forty-Hour
agreement permit it to do so. In all three cases the Organization
7370-40
141
has taken action seeking to terminate the practice, in the first two
instances by a Section 6 notice to modify the agreement, and in
the Pennsylvania case by filing money claims to be prosecuted
before the Adjustment Board.
"It is worthy of note that in the Erie case the Organization
recognizes that it is bound by Award 6856 and that its remedy lies
not in an attempt to have this unfavorable award set aside but by
undertaking to make out a case to overcome its effect at the bargaining table.
"When the Forty-Hour Agreement was concluded on March
19 1949, the provisions under discussion had been thoroughly aired
and were known to all the parties. This agreement was not confined to the crafts or classes within the Clerks' bargaining units,
by any means. All the Organizations representing the so-called nonoperating employes were parties.
"When mention was made in Section 1 (a) of staggering work
weeks in accordance with operational requirements, this applied
not only to six-day operations but also to seven-day operations
where they were and had to continue in force, in a variety of occupations. By no means was this written with he possibility in mind
that some five-day or six-day freight transfer stations might subsequently be placed on a seven-day week. In fact, the restrictions
in Section 1 (d) and 1 (j) indicate precisely the contrary. There
is support for this construction in the fact that overwhelmingly the
railroads of the country do not operate such transfer stations on
a seven-day basis since the Forty-Hour Week Agreement.
"By way of conclusion, it would be well to summarize the
controlling considerations in this case. Contract rules incorporated
into the agreement may not be altered through interpretation on
the ground that conditions have changed and some new provision is
needed. Only through negotiations between the parties can this
be accomplished.
"The congressional intent is clearly expressed in Section 3
(m) of the Railway Labor Act that an award is final and binding
as to a given dispute upon both parties. If our interpretation of
the Agreement differed from that in Award 6695, we would have
a serious problem of how to give different answers to the submitted
question with reference to Utica as distinguished from the other
five stations, since we see no essential difference in the facts or
circumstances governing each of these six stations. Our interpretation of the Agreement, however, is essentially in accord with that
in Award 6695, and this problem does not arise.
"Referee Carter who wrote the Adjustment Board's opinion
in Award 6856 (the Erie case) also participated in several other
awards on this general subject of Sunday work. One of these was
Award 1644 in which he summed up the view for which the Carrier
is now contending in these words:
`The agreement does not prohibit the assignment of
a type of work on Sunday after September 1 1949, even
though it was not so assigned prior to that date, if such
work is necessary to be performed on Sunday.'
"In Award 6856 he cited a number of awards as supporting
this view, although the facts in several indicated that the type of
work in question had been performed on Sundays prior to September
1, 1949. This fact he called merely `strong evidence' or a "presumption' that it continued to be necessary.
7370-41
1
"The position of the Organization, on the other hand, is summarized and supported by the following statement by Referee
Leiserson in Award 6695:
'This claim can only be upheld if the contractual provisions of its 40-Hour Agreement with the Clerks permit it.
Examining Rule 35 (d) which governs 7-day service, we
find that the rule states that any two consecutive days may
be the rest days on positions which "have been filled 7
days per week." (Emphasis added). Admittedly, the positions at Utica have not been filled seven days a week either
before or after September 1, 1949, except by special.
arrangements during World War 11. Accordingly we cannot
hold that this rule authorizes the proposed change from
the present 5-day service to a 7-day operation.'
"We subscribe basically to the interpretation of Referee Leiserson. We do so, in brief, because we find that the parties in
agreeing upon Sections 1 (a), 1 (b), 1 (c), 1 (d) and 1 (j) made
it clear that seven-day operations stand on different grounds from
six-day and five-day operations, by using guarded and carefully
drawn language distinguishing the three kinds of work weeks. We
find that the seven-day operation, unlike the other two, is closely
tied to the Sunday Work Rule, which rule did away with the longestablished practice of premium pay for Sunday as such, but assured
the employes that seven-day types of work previously dispensed
with by the Carrier would not be reinstated now that it may be
done at straight time and that types of work which have not been
needed on Sundays will not hereafter be assigned on Sunday. To
avoid misunderstanding or misquotation, however, it must be pointed
out that neither Section 1 (d) nor Section 1 (j) stipulates that the
prior Sunday work must have been paid for either at the rate of
time and one-half or straight time. Read with the test stipulated in
Section 1 (d) that speaks of seven-day positions as those which
have been filled seven days per week, this makes the intent of the
parties quite plain.
"The reference to staggered work weeks in accordance with
operational requirements applies to six-day operations, as distinguished from five-day, and also to seven-day operations which may
properly be carried on by one or more of the many classes or crafts
of employes who are parties to the agreement, and in any event is
definitely and explicitly qualified by the more specific sections which
follow Section 1 (a). The provisions of Section 1 (j) which speak
of non-rigid adberence to existing patterns, and taking into account
changes in traffic and seasonal fluctuations, relate to changes in the
amount of allowable Sunday work and to changes in the number of
employes on necessary Sunday work. These provisions provide a
framework within which the Carrier has latitude and flexibility,
but they do not permit the inclusion of a new type of Sunday work
which does not meet the essential contractual test.
"This test set up in the agreement is a simple pragmatic test
which leaves little possibility of disagreement or dispute over the
meaning of the word 'necessary' or over the facts, unlike the tests
applicable to five or six-day operations. The efforts of the parties
in arriving at the language indicates that they meant to set up a
simple and undebatable test. Enlisting the services of the former
members of the Emergency Board as interpreters, mediators, and
finally as arbitrators shows this.
"What may the Carrier do to meet its problem? We suggest
a careful exploration of the other sub-sections of Section 1 as one
possibility. If no solution is found there, recourse to the bargaining
7370-42
143
table remains.
We agree that the solution does not lie in working
regular employes on the sixth or seventh day at overtime, for Section
1 (g) (7) shows that the parties agreed this should not be done if
if could possibly be avoided.
"It is our conclusion that the specific question submitted to
this Board of arbitration must be answered in the negative, which
is to say that the Carrier did not have the right to establish a fiveday staggered work week, including Sunday as a regularly assigned
work day, at the freight transfer stations in Utica, Syracuse, Buffalo,
Cleveland, Detroit and Gibson.
"Dated: June 4, 1956
"/s/
David L. Cole
David L. Cole, Chairman
"/a/ Gen. M. Harrison
George M. Harrison, Member"
From the foregoing, we find it difficult, if not impossible, to concur in
the following from the Opinion in Award 7370, that: "This result is sustained by the principles announced in Awards 1566, 1644, Second Division;
5247, 6232, 6502, 6695, 6856, Third Division. (emphasized)" We say this
for the reason that the carriers of the nation generally, interpret at least
one of those awards, Award 6856, as giving them the right under the two
principal rules discussed in Award 7370, to establish a five (5) day staggered
workweek, including Sunday as a regularly assigned workday, where seven
day operations at freight transfer stations had not been in effect prior to
September 1, 1949. As evidence of this, we direct attention to the Opinion
of Majority in New York Central Arbitration Board Award, NMB Case No.
212, and also the reference therein to the action of the Pennsylvania Railroad, following Award 6856.
However, since the author of Award 6856 says that the principles announced in that award are of the same result as Awards 6502 and 6695, both
authored by Dr. Leiserson, we must accept such statement at its face value.
That necessarily would also carry with it the principles announced by the
Opinion of Majority, Cole Arbitration Board Award NMB Case No. 212, for
Chairman Cole of that Board there said: "We subscribe basically to the
interpretation of Referee Leiserson (Award 6695)." Also that: "Our interpretation of the Agreement, however, is essentially in accord with that in
Award 6695, * * *"
We cannot though, reconcile the last clause of the following sentence
from the sixth paragraph of the Opinion of Board in Award 7370 reading:
"Construing the rules as a whole, they simply mean that Sunday
assignments will remain as they were before the forty hour week
except where there has been such a change in operating conditions
due to a change in the nature or amount of business, or other
changed conditions which makes Sunday work necessary."
with either Awards 6502 or 6695, authored by Referee Leiserson, or the
ruling of Arbitrator Cole in NMB Case No. 212. We refer to that part of
the quoted sentence which states:
"* * *, or
other changed conditions
which makes Sunday work necessary." We submit that such would be contrary to the restrictions in the Sunday Work Rule, and that this question
would have to be handled through negotiations and agreement by the parties
to the Rules' Agreement.
We conclude by making as a part of our concurring opinion in Award
7370, Docket CL-7512 the following from our Memorandum to Referee Carter
in that docket, argued to him on May 21, 1956, reading:
7370-43
144
"On the merits of the claim, we submit that this dispute is controlled by our rulings in Award 5548, 5549, 5710, 6502 and 6695
with respect to the application of paragraphs (c) and (d), Rule
30-1. As the record shows, no position in this Freight House was
assigned to work or 'filled seven days per week' prior to September
1, 1949, although some Sunday work probably was performed on a
call basis prior thereto. The language of this rule is not ambiguous
and the rule must be applied in accordance with its plain provisions.
That the authors of this Rule 30-1 (d), intended that it should have
a different application than paragraph (c), covering 6-day positions,
we rely on Awards 6502 and 6695. For the purpose of comparison
in the wording of these two rules, they will be quoted, reading:
'(c) Six-day Positions: Where the nature of the
work is such that employes will be needed six days each
week, the rest days will be either Saturday and Sunday
or Sunday and Monday.
(d) Seven-day Positions: On positions which have
been filled seven days per week any two consecutive days
may be the rest days with the presumption in favor of
Saturday and Sunday.'
The members of the Presidential Board that wrote these two
rules were not novices in the work of writing rules of collective
agreements, and from the language used, it is clear that Rule 30-1
(d) was intended to apply in the past tense, to the weekly assignment of positions as they existed prior to September 1, 1949. This
should be clear in the face of the 7-day rule covering Sunday and
Holiday Work that appeared in practically all collective agreements
of the crafts and classes involved, prior to September 1, 1949. Rule
30-1 (c) speaks of the present and future, and treats with positions
where the nature of the work is such that employes will be needed
six days each week; whereas paragraph (d) speaks of the past and
treats with positions which have been filled seven days per week,
mean positions which had so been filled prior to September 1, 1949.
Under the former 7-day rule, referred to as continuous operation where positions had been filled seven days per week, all Sunday
wor~ was at straight time rates. It is clear from the language of
Rule 30-1 (d), complimented by Rule 33 (c), that such was to continue. It also is clear though as stated, that such privilege was to
apply only to the period prior to September 1, 1949. As authority
for these statements, we call as our witness the following from
Award 6502, written by one of the authors of the 40-Hour Work
Week Agreement, Dr. Leiserson who not only was Chairman of the
Presidential Board, but also one of the two arbitrators that wrote
these very rules, upon request of the Carrier and Union Committees,
who could not agree thereon. Dr. Leiserson said:
'Since there were no seven-day positions prior to
September 1, 1949, and the operational requirements could
be met by six-day positions supplemented by Sunday calls,
we think the rules require the Carrier to continue this
method of handling the work, in the absence of changes in
traffic or business that might make it necessary to work
full days on Sundays the same as week days. (Award 5710
reaches the same result in a similar situation).'
In this regard we do not agree with the following from Award
6856:
'The Organization urges that Award 6695 should be
followed because the referee in that dispute, and the author
7370-44
145
of the award, participated in the drafting of the 40-Hour
Week Agreement and was used as an arbitrator to determine the meaning of certain rules incorporated therein.
We do not think that this is a matter to be considered
here. It is presumed that all of the contentions and
arguments of the parties are merged in the written agreement. A party is not permitted to go behind his written
agreement and offer special knowledge on the intent of
plain provisions. It is conclusively presumed that all such
matters were considered and incorporated in or left out
of the agreement to the extent that the written contract
shows. The integrity of written agreements requires that
they be so construed. The meaning of a written agreement
must be gathered from the language used in it where it is
possible to do so. The meanings of written contracts are
not ambulatory and subject to undisclosed or rejected
intentions of either of the parties. Effect should be given
to the entire language of the agreement and the different
provisions contained in it should be reconciled so that
they are consistent, harmonious and sensible. We cannot
subscribe to the view that the meaning of the 40-Hour
Week Agreement can anywise be affected by the private
knowledge of the party construing it as to its intended
meaning. The terms of the written agreement must
prevail.'
While the immediately above principle may apply in courts of
law in interpreting contracts or agreements, here we have an entirely different question which falls under the principles embodied
in the Railway Labor Act, a federal law. In the promulgation of
the rules here before us, as shown by the Blue Book, Dr. Leiserson
and David Cole served in the role of arbitrators, while perhaps not
covered by the cold letter, nevertheless, they were covered by the
warm spirit of Section 7 of the Railway Labor Act, by agreement
between the parties to the 40-Hour Work Week Agreement, who
selected Leiserson and Cole as arbitrators. Under Section 7 (m)
of the Act, the men or Board that makes an arbitration award, also
interpret their own awards or rulings.
This same spirit is provided for in Section 3 First (m). Under
principles established by the Adjustment Board, the persons (referees) who write the awards are always called upon to interpret
them, although not so specifically provided for in the cold letter of
the Railway Labor Act. The same principle is followed when requests
come from one of the parties to a National Railroad Adjustment
Board award for reconsideration or reargument thereof; the latter
at the suggestion or recommendation of the United States Attorney
General, and also the National Mediation Board. Surely, people
who promulgate rules of collective agreements have a better knowledge or understanding of their meaning than persons who must
rely on the cold letter or wording of such rules, no matter how
intelligent and capable the latter may be.
Now as to Rule 33 (c), dealing with Sunday work reading:
'SUNDAY AND HOLIDAY WORK
Rule 33. (c) Previously existing provision that punitive rates will be paid for Sunday as such are eliminated.
The elimination of such provisions does not contemplate
the reinstatement of work on Sunday which can be dispensed with. On the other hand, a rigid adherence to the
precise pattern that may be in effect immediately prior
to September 1, 1949, with regard to the amount of Sun-
7370-45
146
day work that may be necessary is not required. Changes
in amount or nature of trafc or business and seasonal fluctuations must be taken into account. This is not to be
taken to mean, however, that types of work which have not
been needed on Sundays will hereafter be assigned on
Sunday. The intent is to recognize that the number of
people on necessary Sunday work may change.'
Surely no intelligent person will say that the language of this rule
is entirely clear and unambiguous. As evidence of this, it is public
knowledge that capable men with trained minds, who have been
called upon as referees to interpret and apply this rule, have found
it necessary to consult with one another; to bone-up or gang up,
so to speak, to get the opinions of one another, before reaching
their conclusions as to the meaning of the rule. This being true,
and surely it will not be disputed, then another principle or rule
of contract construction comes into play; namely, the consideration
of the legislative history or the intent of the person or persons who
promulgated the rule or wrote the contract. In this regard we
call again as a witness, one of the authors of the rule, the man
selected by the parties who could not agree among themselves on
the wording of a rule to cover the subject matter, to compose and
write the rule-namely, Dr. Leiserson. See Awards 6502 and 6695.
In his Opinion in Award 6695, Dr. Leiserson said in part:
`The rule begins by taking away the right to overtime
pay for Sunday work which employes had for many years
before the 40-Hour Work Week was agreed to. The first
sentence stipulates: "Previously existing provisions that
punitive rates will be paid for Sunday work as such are
eliminated." This, however, was conditioned by the statement in the second sentence that "The elimination of such
provisions does not contemplate the reinstatement of work
on Sunday which can be dispensed with." Then, to guard
against freezing of the pattern as it existed prior to September 1949, there follows the provision that a rigid adherence to that precise pattern is not required, but changes
in traffic or business must be taken into account. Finally,
after explaining that this does not mean that types of work
not needed prior to September 1949 will thereafter.be
assigned on Sunday, the last sentence of the rule sums up
that "The intent is to recognize that the number of people
on necessary Sunday work may change."
This rule, so carefully balanced to safeguard the respective rights of both parties in the matter of Sunday
work offers no basis for a general inauguration of Sunday
work where previously this has not been necessary.'
In his Award 6502, in referring to the Sunday Work Rule
33 (c), here Dr. Leiserson also said:
`Rule 21 of the Agreement between the parties provides that "a rigid adherence to the precise pattern that
may be in effect prior to September 1, 1949, with regard
to the amount of Sunday work that may be necessary is
not required. Changes in amount or nature of traffic or
business and seasonal fluctuations must be taken into
account." The Carrier in this case, however, does not claim
that any such changes have occurred to increase the amount
of Sunday work. The evidence shows that on the last
nine Sundays before the 40-Hour Agreement became effective, it called only three employes, whereas before that
7370-46
1¢7
four were most commonly called, and sometimes five. It
relies entirely on the fact that on the average about four
hours' work per employe was necessary every Sunday.'
We submit that the rulings by Dr. Leiserson in Awards 6502
and 6695 are authority for sustaining awards in the instant case.
Such rulings with respect to Rule 30-1(d) are also supported by
Awards 5548, 5549 and 5710. Award 5247 also supports the
contentions of the Brotherhood here with respect to the application
of Sunday Work Rule 33(c)."
Labor Members
J. H. Sylvester
R. C. Coutts
G. Orndorff
C. R. Barnes
J. W. Wbitebouse
DISSENT TO CONCURRING OPINION FILED BY LABOR
MEMBERS IN AWARD NO. 7370, DOCKET NO. CL-7512
The Concurring Opinion of the Labor Members deals primarily with the
Award of the Board of Arbitration in National Mediation Board Case No. 212,
involving the same parties as were involved in Award No. 6695 of this
Division.
The Opinion of the Majority of the Board of Arbitration in NMB Case
No. 212 was not presented to nor argued before the Referee in Docket
No. CL-7512, Award No. 7370; therefore, since the Labor Members have
made their Concurring Opinion a part of Award 7370, in order to complete the
record, the Opinion of the third (minority) Member of that Arbitration
Board is set forth below in its entirety:
"NATIONAL
MEDIATION BOARD
"In Arbitration-
between
NEW YORK CENTRAL RAILROAD COM-
PANY "NMB Case No. 212
and
BROTHERHOOD OF RAILWAY AND
STEAMSHIP CLERKS, FREIGHT HAN
DLERS, EXPRESS AND STATION EM
PLOYES.
"MINORITY
OPINION OF
THE BOARD OF ARBITRATION
"The majority opinion in this case is so grossly unjust, and
erroneous and is so unsupported by the evidence presented to this
arbitration board that I feel compelled to dissent therefrom and to
point out its defects.
"At the very outset of their opinion the majority have committed gross error in applying the law to this case and it is obvious
that this error was instrumental in their conclusion to rule adversely
to the Carrier. The majority members have held that the effect of
an award of the Adjustment Board rendered in 1954 in a dispute
involving the transfer station at Utica is roe indicate as to that
station in the present proceeding. The error consists of a misapplication of the doctrine of res judicata plus a misinterpretation
of a provision of the Railway Labor Act.
7370-47
14g
"The nature of the doctrine of res judicata and the applicability
of the doctrine to proceedings before the National Railroad Adjustment Board was fully explained and documented for the Board
in Carrier's Exhibit 24, which was the only evidence of record on
this subject. It was pointed out in this exhibit first that the doctrine does not generally apply in administrative proceedings in
the same manner as it applies to court proceedings and that in any
event the doctrine may not be applied where the result would be
inequitable or unjust. A number of cases were cited for these propositions, including the case of United States v. Stone & Downer Co.,
274 U. S. 225, in which the Supreme Court held that a prior
decision of an administrative agency in a case involving the same
parties and the same issues, where the decisions of the agency were
not subject to review, was not res judicata where, in the interim,
the agency had rendered a different decision in the case of a
competitor.
"The majority undertakes to defend their refusal to recognize this undisputed authority by reference to the language of the
Railway Labor Act, contained in Section 3 (m) (Title 45, Section 153, First (m), U.S.C.A.), which provides that awards of the
Adjustment Board 'shall be final and binding upon both parties
to the dispute, except insofar as they contain a money award'. The
majority have erroneously concluded that this language has the
effect of making inoperative the function and duty of the Adjustment Board, under Section 3 (i) of the Railway Labor Act to hear
and determine disputes involving the interpretation and application
of collective bargaining agreements in the railway industry in
every case where the Board has previously ruled on the same question. They have reached this conclusion in the face of extensive
and uncontroverted evidence in this proceeding (1) that the Adjustment Board has exercised a power of review over its previous decisions extensively and without restriction over the entire period of its
existence, and (2) that the railroad labor organizations themselves,
including the very organization party to the present proceedings,
have repeatedly urged that the Board has and should exercise this
power. The majority members apparently perceive it to be significant that in none of its great many awards in which the Board
has reviewed and set aside prior unsound decisions 'was any
mention made of Section 3 (m) of the Act, nor of the fact that
Congress as a matter of policy of providing no appeal from Adjustment Board awards nevertheless made such awards final and binding upon the parties.' To begin with, I do not know what they
mean by the term 'as a matter of poicy' because I assume they
have no more knowledge than I do of whether the many referees
who rendered these decisions had information on the intention of
the Congress when it enacted this legislation. Certainly there is
nothing in the statute nor, so far as I have been able to determine,
in the submission of the parties in these cases, identifying the
language of 3 (m) as a statement of congressional policy, as
distinguished from a mere provision indicating that there was to
be no appeal to the courts or to other agencies from the decisions
of the Board in cases other than those involving a money award.
But be that as it may, there is nothing at all mysterious about
the absence of any reference in these decisions to Section 3 (m).
The reason is that apparently no one, and certainly not the Adjustment Board or the courts, nor even this labor organization in this
case, has ever suggested the final and binding language in 3 (m)
had anything whatsoever to do with the right and jurisdiction of
the Adjustment Board to re-hear its own cases and to correct its
own prior errors. Carrier's Exhibit 25 consisted of excerpts from
numerous typical cases in which this and other non-operating unions
have urged the Adjustment Board not to be bound by prior
7370-48
149
decisions in cases between the same parties involving the same facts
and the same issues.
"Instead of being governed by this evidence, the majority
rejected it and by way of further attempting to justify the view
of the law which they have taken charged the Adjustment Board
and each of the many referees who have rendered these decisions
with having acted improperly and in violation of law. The majority
opinion states: 'By what authority subsequent Adjustment Boards
may ignore this clear legislative direction we cannot understand,
* * *', and further that 'It is not within the proper authority of
referees or of the Adjustment Board to set aside or ignore this
legislative mandate.'
"Does it not strike the majority as being even more curious or
significant that if the Adjustment Board and its referees have in
fact been acting unlawfully during the whole of its twenty-two years
of existence no one has ever questioned or challenged this conduct?
I cannot believe that they intended these remarks to be taken
seriously or in good faith in the light of the admission by counsel
for the Organization in this case that the Adjustment Board can
and should hear and decide subsequent similar disputes between
the same parties. In his final argument Mr. Schoene said:
'The employes, if they had time claims, could take
the same issues back because that is the only remedy for
them to collect on their time claims, and conceivably a
different referee might arrive at a different conclusion.'
"Do the majority accede to the view that only the employes can take
repeater cases back to the Board and that the carriers have no
such right? Even if they believe that, which I seriously doubt,
the present case was not brought by the Carrier. It is of record
that time claims were filed by the employes in these transfer stations resulting from the Carrier's decision to inaugurate sevenday service. Under the process prescribed by the Railway Labor
Act these claims would have ultimately progressed to the Adjustment Board in the form of an application by the Clerk's Organization. It was shown to the Board, and the majority opinion admits,
that this Arbitration Board was sitting in lieu of and in substitution for the Adjustment Board in deciding the question presented
to it. How, when the Organization itself has admitted that the
Adjustment Board has jurisdiction and the right to reach a different
result, can the majority conclude otherwise?
"I should like, however, before leaving this subject to call
attention to a further error of law which the majority committed
in discussing this matter. I refer to their reference, by way of attempting to support their conclusion, to the case of Coats v. St.
Louis-San Francisco Railway Co., et al., rendered by the Court of
Appeals for the Fifth Circuit under date of March 16 1956, and
reported at 230 F. (2d) 798. This decision, not cited by either
party, is completely irrelevant to any question in the present proceeding and is in no way germane to the proposition for which
the majority have cited it as authority. The only issue in that case
was whether an employe who claimed he was wrongfully discharged
by a railroad and who had taken his case to the Adjustment Board
and there received an adverse award could later sue the railroad on
the same charge in federal court. This case is one of a long line
of decisions, which counsel for neither party deemed relevant*, to the
(") Footnote shown at conclusion of "Minority Opinion of the Board
of Arbitration."
7370-49
150
effect that the `final and binding' language of Section 3 (m) means
that once a case is adjudicated by the Adjustment Board it may not
thereafter be reviewed or again adjudicated by the courts. There
was no issue in the Coats case, and the Court made no ruling upon,
the effect of the language to prohibit the Board itself from reviewing its own prior decision and its citation by the majority is inaccurate and misleading.
"The majority opinion on the merits of the dispute is equally
implausible. An analysis of the reasons cited in attempted support
of their conclusion to rule favorably to the Organization discloses that they have variously committed each of the following
abuses of discretion and authority:
(1) Refusal to recognize or take cognizance of undisputed evidence.
(2) Selection of evidence favorable to the Organization and rejection of evidence favorable to Carrier.
(3)
Distortion and interpolation of Carrier's evidence.
(4) Selection of particular contract language favorable to the Organization and rejection or ignoring of contract language favorable to Carrier.
(5) Misconstruction of contract language.
(6) Refusal to be guided by precedent of prior decisions on the same issue.
(7)
Misdescription of precedent favorable to Carrier.
(8) Failure to adhere to recognized rules of contract
construction.
"While indicating that their wrongful conclusion on the subject of res judioata was a controlling consideration in their finding
in favor of the Organization, the majority have attempted to additionally support their award by an analysis of the contract and the
many prior decisions which have been rendered upon it. This portion of the majority opinion commences on page 6 by claiming that
many previous awards of the Adjustment Board interpreting the
rules of the contract here involved resulted in confliction, inconsistency and confusion. The awards referred to in the majority
opinion total forty-three in number and, of these, forty-two were
shown by the evidence to be completely uniform and consistent
in holding that a carrier has the right to stagger its forces to perform operations in seven-day service under this agreement where it
is necessary in the operation of the railroad that it do so. One
award, that by Referee Leiserson in
6695,
stands solely opposed. It
strikes me as significant that the majority predicate their discussion
of the issues by describing the situation as confusing, contradictory
and inconsistent where the acknowledged facts of record are those
I have just stated.
"They then proceed to identify a `thread' which they found
running through the contract and which they identify as a pronouncement that the railroad industry, from the standpoint of
scheduling and assigning its employes to perform service on Sunday,
was immobilized and frozen in the particular condition which happened to exist on August 31,
1949.
They interpret the contract,
by methods hereinafter described, to mean that the management
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of the New York Central and of all the other major railroads
throughout the country agreed, when they entered into the National
Forty-Hour Week Contract in 1949 that they would never have
need or occasion in the future to do any work or perform any
service on Sunday that they were not then doing. They find in effect
that the industry foreclosed itself from change and agreed that no
matter what the requirements of the shipping and travelling public
might be the railroads were not to be able to adapt their service
to meet these demands. They find, in reality, not a thread, but a
rope by which they say the railroads agreed to strangle themselves.
"An early contradiction in the opinion appears on page 6 where
it is stated that Sunday 'work may be done at straight time if it
is necessary'. This should be compared with later statements in the
opinion to the effect that necessity has nothing to do with it, and
that only such work may be performed on Sunday as was performed
on Sunday in 1949, without any regard to necessity.
"An example of disregard and misstatement of evidence on
behalf of the Carrier appears
on
page 6 when the majority undertake to discuss Section 1 (d) of the contract. This section provides that 'on positions which have been filled seven days per week
any two consecutive days may be the rest days with the presumption in favor of Saturday and Sunday'. The majority relied heavily
on this provision, to the exclusion of others in the agreement, in
support of their conclusion. The Carrier pointed out in its evidence
three reasons why this rule should not be applied the way the
majority have applied it, but in describing the Carrier's contention
they mention only one. They say 'The Carrier has urged that this
merely identifies the days off'. The Carrier made this contention,
but it also cited two other reasons in support of its position. These
were: first, that the rule is qualified by the 'Note' appearing at the
head of te rule which requires that it be applied consistently
with the proviso that 'The expressions "position" and "work" used in
Article il refer to service, duties, or operations necessary to be
performed a specified number of days per week * * *', and, second
and most important, that if this rule has the effect which the
majority say it has, namely, to freeze working assignments as of
August, 1949, then there would have been no need whatsoever to
have written paragraph (j) into the contract, which defines the
circumstances under which Sunday work may be performed. The
majority do not indicate that they paid any attention at all to the
Note, and do not attempt to explain why all of paragraph (j),
except possibly the first sentence, is not mere surplusage if 1 (d)
means what they say. If 1 (d) freezes our operations, as the
majority say it does, why did the parties provide in 1 (j) the circumstances under which Sunday work could henceforth be assigned?
On their view, the two are utterly inconsistent.
"An example of the manner in which the majority opinion has
misstated and misconstrued the language of the contract appears
at the top of page 7 of the opinion when they quote, and rely upon,
the provision of paragraph (j) which states that 'The elimination of
punitive pay for Sunday as such does not contemplate the reinstatement of work on Sunday which can be dispensed with.' They
have underlined the word 'reinstatement' and then cite the sentence
as authority for the proposition that the parties intended to prohibit the performance of any work on Sunday which had previously
been dispensed with. They would read the rule as if it said: 'which
has been dispensed with' whereas the language is perfectly clear
and merely insures against the reinstatement of work which in the
future can be dispensed with. The unjustness of this conclusion is
magnified by the reference of the majority to a letter written by
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152
the Chairman of this Board and Mr. Leiserson under date of February 27, 1949 explaining the meaning of the report of the Emergency Board
of
which these two gentlemen were members. It is
said that this letter throws 'some light' on what was intended, and
they attempt to draw a parallel between the language of the letter
and the language of the contract. They significantly omit, however, to point out one most important deviation. The letter said
that 'The Board did not contemplate the reinstatement of work
on Sundays where it has been found it can be dispensed with.'
But this is not what the contract says. When this provision was
written into the contract the words 'where it has been found' were
deleted by the parties and the language made to read as quoted
above. The difference in meaning is readily apparent. As originally written by the members of the Emergency Board the language
would have frozen railroad operations, but as written into the
contract by the parties it clearly permits the test of whether work
can henceforth be dispensed with.
"In listing the provisions of the contract relied upon by the
Carrier and by the Referees who have rendered the many decisions
favorable to the Carrier the majority, on page 7, omit any reference to three important rules. They omit (1) any reference to
the Note to Section 1, (2) to the provision of Section 1 (a)
which provides that 'so far as practicable the days off shall be
Saturday and Sunday' and (3) to the provision of paragraph (j)
mentioned above in regard to work which can henceforth be dispensed with.
"One of the provisions which they do mention is that contained
in Section 1 (a) which provides that work weeks may be staggered
'in accordance with the Carrier's operational requirements' but the
majority then proceed to dismiss the pertinence of this provision
by saying that this provision has 'general application in determining the type of work week and also the fluctuations (whatever
that means) referred to later in Section 1'. Although admitting
at two later places in the opinion that the term 'operating requirements in fact applies to seven-day operations, and although the
February 27 letter contains the statement that the term
I
"consistent
with their operational requirements" qualifies the entire forty
hour program', they nevertheless failed and refused to attach
such significance to this vital provision of the contract in reaching
their conclusion that operating requirements have no bearing at all
on the assignment of Sunday work.
"A most shocking instance of refusal to be governed by uncontroverted evidence in the case occurs in that part of the opinion
(page 8) in which the majority discuss another particular provision
of the contract which they deem to be significant. This is the provision in paragraph (j) that 'types of work which have not been
needed on Sunday will not hereafter be assigned on Sunday'. The
Carrier argued and introduced unchallenged evidence that even if
this provision be given the restricted construction that the majority
have applied to it the fact nevertheless was that the operation of
freight transfer houses was a type of work which was performed,
not only on the New York Central Railroad but on other railroads
throughout the country, immediately prior to September 1, 1949.
In its Exhibit 21-A Carrier listed first of all a major freight transfer station on its own property, namely, that at East St. Louis,
Illinois, which was operated seven days a week' on and for a long
time prior to August 31, 1949. The Carrier witnesses also testified
extensively about this. In addition to that, the Carrier listed
twenty-one other transfer stations on twelve other railroads of which
it had knowledge where Sunday transfer qperations were likewise
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153
conducted. Notwithstanding these facts, and notwithstanding that
the majority state in their opinion that 'Such types of necessary
work may be enlarged in terms of number of employes as well as
of additional locations', they refuse to recognize that the six transfer stations involved in this dispute were, on their own analysis of
the agreement, in fact 'additional locations'.
"The majority have misdescribed the many awards of the
Adjustment Board which were presented in evidence as overwhelmingly favorable to the contention of the Carrier. While listing and
correcting quoting from many of these awards in their opinion, they
made no attempt to distinguish them and their only comment by
way of criticism it that the referees in rendering these awards
'neglected to observe or to give proper weight' to the provisions
of Section 1 (b), (c) and (d) of the contract or 'to recognize that
the seven-day provisions are regulated by both Section 1 (d) and
1 (j).' The fact is that in each one of the forty-two awards
favorable to the Carrier the Referees dealt specifically with some or
all of these provisions of the contract and reached a conclusion
exactly contrary to that which the majority have reached in this
instance. To attempt to depreciate the significance of these rulings
by the mere assertion that all of these referees were guilty of
neglect is unbelievable.
"That majority undertake on page 12 of their opinion to justify
their conclusion on the basis that the interpretation which they have
placed on the contract freezing railroad operations as of September 1, 1949, was adopted and agreed to by the parties because
it was a 'simple test'. It is said that the parties were 'wise' in
agreeing to it. Being a lawyer, the Chairman of this Board must
know that in interpreting a contract the question of whether the
parties made a wise or unwise bargain can have no part. The
proper function of the interpreters is confined entirely to determining what the parties meant. The fact that the test of current
necessity, which is what the parties in fact agreed to, may involve
somewhat greater difficulty of proof, affords no license to say that
that is not what the parties intended and the inclusion of these
statements in the majority opinion must be characterized as nothing
more than rationalization.
"On this same subject, there is another universally known and
accepted rule of contract construction which is that where a contract may be given two meanings, one to produce a reasonable
result and the other to produce an unreasonable or absurd result,
the contract will be interpreted in a way which will permit the
former to be achieved. Here we have a contract which can clearly
be interpreted to mean that the parties intended, from the standpoint of the employes, to limit Sunday work to that which was
actually necessary to the operations of the railroads but which permitted sufficient flexibility to insure that the railroads would be able
to perform a useful and satisfactory transportation service. That
is the reasonable result. The unreasonable and absurd result which
the majority find the contract produced is that operations were
frozen in 1949 and could not be thereafter changed, no matter
what the need and without regard for the result.
"An example of selection of evidence favorable to the Organization and rejection of evidence favorable to Carrier, and of gross
disregard for the rules of evidence, occurs when the majority indicate on page 12 of their opinion that they chose to rely on a hearsay
statement made on behalf of the Organization as against direct and
documentary evidence offered on behalf of the Carrier. It will
be recalled that the Carrier offered extensive exhibits and much
testimony as to why the experimental six-day operation of these
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transfers in 1950 and 1951 was unsatisfactory and that as a result
the Carrier reverted to the less unsatisfactory five-day operation.
The majority chose to reject this evidence and to believe instead
the unverified statement which they accurately describe as follows:
'Employes' witnesses, however, testified that supervision informed
them that this reversion to five-day operations was due again to lack
of volume of business * * *'.
"Again, the majority opinion distorts and interpolates the
Carrier's evidence in the matter of loss of LCL traffic. Carrier's
Exhibit 11 showed a loss of 71% of the Carrier's total LCL traffic
between the date immediately prior to the Forty-Hour Week Agr eement (1948) and the end of the year 1955, and a loss of 29% from
the date of Adjustment Board Award 6695 to the present time.
The majority opinion says of this that 'It has not been proven that
the drop in LCL volume has been caused solely or primarily by the
five-day week'. This is a grossly unfair statement because the
record shows the Carrier never made any such contention. The
Carrier's position was merely that the closing of its transfer houses
one or two days a week, with resulting delays of up to four or
five days in the further dispatchment of this freight, produced a
non-competitive and undesirable service from the standpoints of
time and reliability.
"Further, on this subject, the evidence showed that these transfer stations had been operated seven days a week since March 1,
1956, and the Carrier's exhibits showed a very significant and
spectacular improvement in reduction of delays and time in transit
of LCL freight. In terms of number of cars left over and unworked at these transfers, improvement in relation to total cars
transferred was from 139% in. February to 31% in April. The
evidence shows that about 8% more man hours were used in the
seven-day operation, but that this was substantially offset by a 6%
reduction in output per man hour. On this evidence the majority
elected to believe that the improved performance under the sevenday week 'may be ascribed partly to the use of more total man
hours than in the five-day operation, because production per man
hour in fact declined by about 6%'. I do not understand this
statement and can only suggest that the statement which follows
it to the effect that 'No one could reasonably argue that operations
on an every day basis will not tend to diminish delays caused by
week-end accumulation of arriving cars * * *' shows that the
majority of the Board understood, but refused to be governed by,
the fact that the seven-day operaions constituted a necessary and
desirable improvement in the Carrier's service.
"On page 14 of their opinion the majority members undertake
'by way of conclusion, * * * to summarize the controlling considerations in this case! The first consideration listed is the res judicata
effect of Award 6695, heretofore dealt with. They then go on to
recite that they subscribe 'basically to the interpretation of Referee
Leiserson' in that Award; ignoring and again failing to distinguish
the forty-two contrary awards rendered by seven other different and
experienced referees.
"The result of the award of the majority in this case is to
produce a situation with respect to the right of a carrier to perform
work on Sunday which is infinitely worse and more restrictive than
the one which it had even under the old so-called 'continuous operation rule'. While the majority have found, properly, that that
rule was abolished with the adoption of the five-day week, the
effect of his award is to preserve that rule and to carry it forward
and to hold that it is still applicable. This is so because on their
interpretation of the agreement the Carrier can do now only what
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155
it could do and did do under that rule prior to September, 1949.
The result is to write the continuous operation rule back into these
contracts, but without even the right to now seek to qualify additional operations even unde; the restrictive provisions of that rule
as it previously existed. According to the majority, we are now
and forevermore, so long as this contract remains in effect, stuck
with what was 'necessary to continuous operation' in 1949. Certainly there was nothing by way of evidence of record in this proceeding or in the report of the 1948 Emergency Board nor in the
events leading up to the adoption of the agreement of March 19,
1949, which lends one iota of credibility or support to such a conclusion. All of the evidence was exactly to the contrary.
"The hostile treatment of the Carrier's evidence, the favorable and unwarranted inferences on the employes' evidence, the
selection of certain words from the agreement to the exclusion of
other language of the contract, the wrongful use of the doctrine
of res indicate, and the decision to follow the award of one referee
(who happended to be a member, with the Chairman, of the Emergency Board which recommended the five-day week in the railroad
industry) instead of the well-reasoned opinions of seven referees
who have held to the contrary, all to reach the unreasonable and
unrealistic result which this award would produce, indicate that the
majority have committed the grossest kind of error in reaching their
conclusion in this case.
"L. W. HORNING
"STATE OF ILLINOIS SS.
COUNTY OF COOK
"On this 14th day of June, 1956, before me personally appeared
L. W. HORNING, to me known and known to me to be the
person described in and who executed the foregoing opinion of
minority of the Board of Arbitration, and acknowledged to me that
he executed the same.
"LOLITA E. BUONAGINDI
Notary Public
"My Commission expires September 7, 1959
This case or cases like it, of which there are many, was
undoubtedly what counsel for the Organization had in mind when,
in answer to a question by the Chairman at page 885 of the Record
as to whether there have 'been any court rulings as to the meaning
of "final and binding"' he said 'I do not know of any that would
be applicable here'."
This Minority opinion points out the numerous errors, unsound reasoning and the fallacious foundation on which a sustaining Award was
rendered by the Board of Arbitration in NMB Case No. 212, therefore, we
dissent to this Concurring Opinion.
/s/ C. P. Dugan
/s/ W. H. Castle
/s/ R. M. Butler
/s/ J. E. Kemp
/s/ J. F. Mullen