SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY
OREGON ELECTRIC RAILWAY COMPANY
OREGON TRUNK RAILWAY
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
a. The Spokane, Portland and Seattle Railway Company, Oregon Electric Railway Company, Oregon Trunk Railway, hereinafter referred to as "the Carriers" violated the currently effective Agreement between the parties to this dispute, particularly Article 4 Section (e) when, on Sunday, December 2, 1956, the Carriers abolished all regularly assigned train dispatcher positions, effective 8:00 A. M., December 2, 1956, without first giving the Ninety-six (96) hours advance notice required by Article 4 Section (e) of the Agreement.
b. The Carriers shall now be required to compensate regularly assigned Train Dispatchers C. E. Smith, W. A. Isom, B. D. Allumbaugh, J. E. Schlaf, M. J. Cowin, E. Huguenin, A. S. Hidy, E. S. Weyand, D. Kersey, G. C. Morgan, R. G. Kenney, H. Jackson, W. J. Farris, M. L. Buntin and L. F. Vail, total fifteen (15), in the amounts hereinafter set forth which each of them would have earned if the requirements of said Article 4 Section (e) had been complied with.
EMPLOYES' STATEMENT OF FACTS: There exists an Agreement between the parties to this dispute effective October 1, 1952, on file with your Honorable Board and by this reference is made a part of this submission as though it were fully set out herein.
Article 1, Sections (a), (b), (c), (d), and (e), Article 3, Sections (a), (d) and (f), Article 4, Sections (a), (e), and (f), and Article 8, Sections (b), (c), (d), (e), (f) and (g), which are particularly pertinent to the instant claims are quoted here for ready reference.
Respondent recognizes that there may very well be times when one group of employes may feel their interests will best be served by supporting the cause of another group of employes in opposition to their common employer. However, the employes in the supporting group must face the cold fact that they have a working agreement with the employer and if their support involves a refusal to cross a peaceful picket line and perform the services covered by their working agreement it must follow that they cannot, after having thus repudiated their obligation under the working agreement, retain any of the benefits thereunder.
In progressing the instant claim on the property, employes cited 3rd Division award 6118 in support thereof. The facts involved in that award are easily distinguishable from the facts in the instant case. There it appeared that the carrier abolished certain dispatcher positions (113 out of 138) as soon as a B.L.E. strike was called. There was no showing that Dispatchers had refused or intended to refuse to cross the picket line of the striking B.L.E. In our case, curtailed train service was operated during the B.L.E. strike necessitating the services of Dispatchers; and it was only after the carrier was reasonably satisfied that the dispatchers were refusing to cross the B.L.E. picket line that the telephonic request from the A.T.D.A. General Chairman that all dispatchers assignments be abolished immediately was complied with.
In conclusion respondent submits that the working agreement on which this claim is based was repudiated by the Dispatchers' refusal to cross the peaceful B.L.E. picket line and perform the services covered by the agreement; that, therefore the claim, based on a subsequent alleged violation of the same working agreement by respondent, must fail.
All data in support of the Carrier's position has been submitted to the Organization and made a part of the particular question here in dispute. The right to answer any data not previously submitted to the Carrier by the Organization is reserved by the Carrier.
OPINION OF BOARD: The Record herein is in utterly hopeless conflict and confusion as to matters which are of critical significance to the determination of the dispute on the merits. For instance, the Carrier has offered evidence to establish that Claimants informed the Carrier that they would refuse and that they did refuse to cross the picket line of the Brotherhood of Locomotive Engineers; the Claimants have denied that they informed the Carrier that they would refuse to cross the picket line and they have offered evidence to establish that they did not refuse to cross the picket line. The Carrier has offered evidence to establish that Claimants' positions were not abolished until about 2:00 P. M. (but retroactive to 8:00 A. M.) on December 2, 1956, and that the Carrier abolished the positions then only by virtue of a request from General Chairman Weber that all dispatcher positions be abolished to avoid embarrassment to the dispatchers as well as to the management; the Claimants have offered evidence to establish that they were orally notified before 8:00 A. M. on December 2 that their positions were abolished, and they have denied that the abolishment was effected upon the request or agreement of the General Chairman.
The conference which the Parties conducted on February 28, 1957 for the purpose of clarifying the facts leading to the filing of the claim actually left the picture even more confused and the facts even more in conflict than before. Adding to the confusion, neither of the Parties (particularly the Organization) has been by any means entirely consistent within its own evidence of Record in this case. 9851-15 253
The Board has no means of resolving such extreme conflicts and inconsistencies as exist in the present Record, and the Board accordingly cannot reasonably be expected to rule upon the merits of the dispute. The claim must be dismissed.
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
The majority, consisting of the Carrier members and the Referee, apparently lost sight of the basic issue in dispute, which dispute turns squarely on the following Rule.
"Ninety-six (96) hours notice shall be given the General Chairman and the Office Chairman of intended abolishment of a regularly assigned position."
The above Rule requires ninety-six (96) hours notice and there are no exceptions thereto. In Second Division Award 1738, Referee Wenke properly ruled under similar circumstances that
"There are no qualifications of, nor exceptions to, the four days' notice requirement contained in Rule 27(b), nor do we think any exceptions or qualifications thereto are inherent in the rule without their being either contained therein or in some other provision of the parties' agreement which relates thereto. See Awards 372 and 1701 of this Division and 6188 of the Third Division. In this respect we have exam- 9851--16 2
ined the numerous decisions and awards cited by the parties and with the possible exception of one early decision, we find they all hold that strikes, or results thereof, do not relieve carrier from fulfilling such requirement."
"The Carrier on the afternoon of December 2, 1956, abolished the positions of Yardmasters at Portland, Vancouver, and Wishram. Rule 8 of the applicable Agreement provides in its entirety: 'When a regular assignment is to be abolished, the yardmaster filling the assignment will be given not less than 24 hours' notice.'
Claimants demand payment for their assignments on December 2 and 3, 1956, on the ground that the requisite 24 hours' notice of the abolishment of the jobs had not been given.
The Carrier maintains that since a picket line of another organization had been established around the property and the Carrier's officials had been 'given to understand informally * * * it would be honored by the yardmasters', and since the line had in fact not been crossed by the yardmasters, including their general chairman, at the start of the shifts immediately before midnight on December 1st and the morning shifts of December 2, the yardmasters cannot be deemed to have been 'filling the assignment', within the parlance of the said Rule 8; and, therefore, the requirement of 24 hours' notice was not applicable.
The provision for 24 hours' notice is clear and explicit. There are no equivocations. It seems unwarranted to assume that an employe who is absent for whatever reason but without having quit is not 'filling the assignment' within the terminology of this clause, which relates by its context to the holder of the job and not a jobholder who reports to work. Whether an employe is absent justifiably or not is another matter entirely.
When strike talk is in the air, rumors often are rife. Certainly it is never safe for either employes or the Carrier to content themselves with 'informal understandings.' Whether an employe is going to report for work or not may be in the realm of pure conjecture or speculation. For that matter, strikes by their very nature often end suddenly. For parties at such time to try to divine what the other will do or to rely upon second guessing only adds to trouble and confusion."
"However, with respect to the Claimants who on Sunday morning received the improper notice that their jobs were abolished that day, they had a right to rely upon the information that no work would be available to them and their rights were crystallized as of then if the notice was improper, as in this case it was because it did not provide the requisite 24 hours. It is purely subjective and conjectural whether they intended to go to work at all, and therefore, this cannot be material.
Thus, at Portland Claimant D. R. Foran was scheduled to start at 8 A. M. on December 2nd, and apparently had already failed to go to work when the improper notice of abolisbment reached him, which abolishment was not to take effect until 2 P. M. that day anyway and would not have affected him. Therefore, he has no claim.
The other Claimants at Portland asking compensation for December 2nd, however, appear to have received improper notices giving them less than 24 hours, and, therefore, were relieved of the necessity of reporting, so that their claims for a lost day's work on December 2 must be allowed."