THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Chesapeake District)
There is no more justification for argument that the Carrier must forever bill less carload freight for transfer to a certain point than there is to say that the Carrier must delay cars or handle them inefficiently in order that they may all be weighed on scales at some particular point.
The awards in prior cases fully support what has been done in this case and justify a denial award.
The evidence is fully to the effect that the changing of car lines in this case is not something new, but is the same thing which has been done without question since the beginning of railroads.
Service requirements are plainly such that such changes cannot properly be subject to collective bargaining agreement, but must be carried out by Management as a managerial responsibility pursuant to the rendition of prompt and efficient freight transportation service.
Examination of the current collective bargaining agreement shows that there is no rule in any manner covering such change in car lines, so that such changes have not been made a matter of collective bargaining.
Prior cases before the Third Division show that what was done in this case was fully in keeping with well established railroad practices and requirements and is not in violation of the Clerks' Agreement.
All data contained in this submission have been discussed in conference or by correspondence with the Employe representatives.
OPINION OF BOARD: The controversy now before us concerns the Huntington, West Virginia, and Ashland, Kentucky freight stations, two of the many such stations maintained by the Carrier to break package cars and .sort the contents for further loading and shipment. The Huntington and Ashland stations are about 16 miles apart and in different seniority districts. Early in 1955, the Carrier enlarged its Ashland facilities and began to divert to Ashland cars formerly loaded to break bulk at Huntington. Cars from 22 different origins formerly billed to Huntington were, effective with this change, directed to Ashland. At the same time, the work of checking, unloading and transferring less-than-carload freight, moving in carloads from their points of origin, that was formerly performed by the Huntington employes, began to be handled at Ashland. During the spring of 1955, Carrier abolished ten clerical (Group 1) and thirteen Group 3 positions at Huntington, but established four clerical and five Group 3 positions at Ashland. These changes were accomplished unilaterally by Car rier and without consultation with the Brotherhood. The Huntington employes affected were not afforded an opportunity to follow their work to Ashland. 9193-34 63
The Carrier maintains that the above-mentioned changes breached no provision of the controlling Agreement and emphasizes that they simply involved the elimination of a portion of the work at one point and the performance of more work at another. It points out that the station at which L.C.L. package cars are broken out is determined by Carrier in accordance with the volume and destination of traffic. The Carrier further insists that the employes in Huntington did not have exclusive right to this work and that it is its prerogative to have the work performed at the freight station that efficiency and economy dictate.
In our opinion, the real question presented by this record is whether or not the changes under consideration amounted to a removal of the work out of one seniority district and into another. Despite the Carrier's arguments to the contrary, we are satisfied that this question must be answered in the affirmative. The practical significance of this situation, the basic facts of which are undisputed, does not differ substantially from any case where the Carrier, for operational or other considerations, decides to withdraw work from the employes who theretofore had performed it and to assign it instead to employes in a different seniority district. There is no doubt but that the realistic and inevitable result of the changes, however they were accomplished, was to cause employes within the Huntington seniority district to lose work they had been performing to employes in another and entirely separate seniority district. The situation is to be distinguished from those where the work was actually abolished.
Rule 6 of the controlling Agreement, notably sections (c), (d), (e) and (f) thereof, provides that Ashland and Huntington are separate seniority districts that are not to be changed in the absence of agreement between the contracting parties. Those sections, considered together with Rules 1 (a) and (b), 3 and 17 (e), underline the importance of district seniority.
It is well settled that seniority is a valuable property right. See Award 4987. That right would be devoid of strength and meaning if it represented merely a paper designation and there was no work for its holders to perform. See Award 5078. The entire purpose and underlying spirit of the seniority provisions require that, in the interest of the employes' seniority, their statutory bargaining agent be consulted before any move of the type in question is made that will impair their valuable seniority rights. Accordingly, not even to consider the effect of the aforementioned changes with the Brotherhood constitutes a violation of Rules 1, 3 and 6 of the Agreement. To hold otherwise would be to encourage the emasculation of that Agreement. Manifestly, operational changes by the Carrier must be effected in a manner that is compatible with its contract commitments.
Consideration of evidence regarding past practice is not appropriate since the Agreement's provisions are sufficiently unambiguous on the point in question.
As to the argument that to sustain the claims would be to give the Brotherhood a veto over Carrier's operations, it should be noted that this is not a case where the Brotherhood declined to consider the changes and to meet with the Carrier in a bona fide attempt to lessen the impact of the changes upon the Huntington employes. The Brotherhood was not even consulted.
We cannot accept the Carrier's contention that to sustain the Brotherhood's position is tantamount to insisting that "once Carrier has certain 9193-35 64
work performed at one point it must forever be handled at that point." All we hold in this case is that before making changes that will shift work out of one seniority district and into another to the obvious detriment of one group of employes, the Carrier must consult the appropriate bargaining representative of the employes affected in a bona fide effort to mitigate the impact of the changes upon those employes. In reaching this conclusion, we have considered the Agreement before us and not the equities of the situation. In our view, this requirement is basic and fundamental to the seniority rights prescribed by that Agreement. There is nothing in the requirement that is harsh, unreasonable or inconsistent with the duties and privileges of a Carrier.
Under the circumstances, the claims will be sustained. See Awards 6309, 4667 and 3964.
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
Insofar as this dispute is concerned, Carrier maintains breakbulk operations at both its Huntington and Ashland freight stations, 16 miles apart in separate seniority districts, and on or about April 12, 1955, it changed, at their originating point, its consignment of certain cars to Ashland that had previously been break-bulked at Huntington. The changes in consignment of such cars was in exercise of Carrier's prerogative to direct its operations in the interest of efficiency and economy and resulted in a force reduction of 23 clerical employes at Huntington as opposed to a force increase of 9 clerical employes at Ashland.
This Award No. 9193 erroneously holds that Carrier's change in consignment of these certain cars at their originating point, for breakbulking at Ashland rather than at Huntington constitutes a violation of its Agreement with its Clerks in that it is a transfer of work from Huntington to Ashland (from one seniority district to another) without negotiation, de- 9193-36 65
spite the facts that (1) there is no Agreement provision requiring that Carrier handle through any given point any stated quantity of freight in terms of quantity or class or commodity, and (2) the L.C.L. cars involved did not originate in the Huntington seniority district and were not billed or destined to that district for handling; hence their being consigned, at their originating point, for break-bulking at Ashland rather than at Huntington was not a transfer of this work from Huntington to Ashland. Obviously, for the Majority to so hold is to usurp the function and prerogative of Carrier to direct the detail of its operations when not in conflict with its Agreement commitments which clearly is not the case here.
While it readily appears that equity considerations troubled the Majority and strongly influenced its decision in this instance, this Board should have confined itself to interpreting the Agreement Rules as written; equity is not a proper subject for consideration by this Board.
For the foregoing reasons, among others, the undersigned Carrier Members dissent to the holdings of the Majority in this Award No. 9193.