ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN,
PULLMAN SYSTEM
discontinued the Odem-Brownsville conductor run would have been performed by Conductors H. P. Odom and R. Q. Larrabee by virtue of the rule (Exhibit A, p. 10). The Company submits that Rule 38 (a) would have application only in the event it were first determined that the Company's action in discontinuing Pullman conductors on the Odem-Brownsville run were improper. The Company has shown, however, that its action was not improper. Therefore, Rule 38 (a) was not violated and Conductors Odom and Larrabee do not have a valid claim.
Finally, in the hearing, the Organization cited Rule 25, paragraph (c), which provides that in any district the right to perform all Pullman conductor's work arising therein as established by past practice and custom shall belong exclusively to the conductors having seniority in the district, subject to exceptions set forth in other rules. The Organization alleged that under this rule San Antonio conductors were entitled to continue the work of handling the Houston-Brownsville car between Odem and Brownsville. In reply, the Company wishes to point out that Rule 25(c) grants conductors the right to perform conductors' work in the manner established by past practice and custom only after it is determined that conductors' work is present. Moreover, Rule 25 (c) explicitly makes conductors' rights under that rule subject to these exceptions set forth in other rules. In the case at hand, Rule 64 (b) expressly granted the Company the right to operate porters-in-charge for the entire trip on the Houston-Brownsville car in question. When the Company discontinued the assignment of conductors to this car on May 10, 1958, therefore, no conductors' work was present and Rule 25 (c) had no application.
The Pullman Company has shown in its ex parts submission that on May 10, 1958, it discontinued operation of conductors on a single car run between Odem and Brownsville and that this action was in conformity with Rule 64 (b) of the working Agreement. The Company has also shown that the run discontinued on May 10, 1958, was not a "frozen" run covered by the Memorandum of Understanding regarding Conductor and Optional Assignments and that the Company did not violate this Memorandum. Finally, the Company has shown that it did not violate Rules 25, 38, 64 or any other rule of the working Agreement, as alleged.
The position of The Pullman Company in denying this claim should be upheld.
All data presented herein in support of the Company's position have heretofore been presented in substance to the employes or their representatives and made a part of this dispute.
The key rule involved in this case is Rule 64 of the current Agreement and the Memorandum of Understanding Regarding Conductors and Optional 10140-22 205
"Runs in Which Conductors Operate in Charge of but One
Car for a Portion of a Trip
The Memorandum of Understanding establishes the fact that the San Antonio to Mission run was a frozen run.
Appendix B. supra, indicates trains 15 and 16, operated on the run in August 1945, and that the San Antonio to Mission return run was a frozen conductor operated run . Furthermore, it was not denied that trains 15 and 16 are still operating on the remaining segment of that run - namely, the segment between Odem to Harlingen and extended to Brownsville.
That the Carrier has the right to shorten, lengthen or discontinue runs in keeping with contractual provisions, is unquestioned. Neither can it be disputed that if a frozen run is shortened-the remaining segment is still a frozen run.
There has been much discussion in this case whether conductors are assigned to lines or trains. The record and previous awards strongly support the position that Conductors are assigned to trains. In Award No. 2762 Referee Parker stated " . the parties understood conductor operations were made up of trains and that conductors were assigned to trains,-trains which were designated and identified not by the Pullman Company, but by the railroad over-which its cars operate." In Award 4007 -Mr. H. R. Lary, the Pullman Company's Supervisor of Industrial Relations stated: "While conductor operations are designated by line numbers for accounting purposes, conductors are in reality assigned to trains rather than to particular Lines." 10140-24 207
Accordingly, it is our determination that conductors are assigned to trains not lines.
On June 27, 1952, the frozen San Antonio to Mission run was shortened. The two segments between San Antonio and Odem and between Harlingen and Mission were discontinued-leaving only the segment between Odem and Harlingen. The Carrier subsequently extended the run from Harlingen to Brownsville, Texas.
The Company maintains that initially the frozen San Antonio to Mission run was known as line 3308; that line 3308 was discontinued on March 24, 1948 and replaced by line 3671 on that same date; that line 3671 was discontinued on June 27, 1952; and that line 3641 was not inaugurated until March 28, 1948 - and on another run.
It must be noted that lines 3308, 3671 and 3641 refer merely to the numbers of the Pullman Cars in the operation or run.
3641 was a Houston-Brownsville Pullman car that operated with trains 15 and 16 on the Odem to Brownsville run. It is significant that from Houston to Odem-Houston conductors handled Car 3641; but from Odem to Brownsville - San Antonio conductors handled Car 3641.
From the facts set forth above, it is obvious that the following questions must be answered:
For the answer to the first question, let us review the provisions of the "Memorandum of Understanding Regarding Conductors and Optional Assignments" set forth above. The word "run" or "runs" appears eleven times in that Memorandum while the word "line" is used only once and then in the following context ". . . between the new terminals if the line is shortened.
Now let us turn to the record and the interchange of remarks between Mr. H. P. Odom, Committeeman and Employe's Representative, and Mr. R. C. McCarthy, Field Representative, Employe and Labor Relations Departmentwhich is as follows:
If line numbers determined whether or not a run were frozen, the Carrier could, merely by changing the line number, "unfreeze" a run-which would most certainly be an effective way-albeit an improper one- of unilaterally terminating a bilaterial agreement.
Therefore, it seems that runs are frozen and not cars or lines. The question then of whether or not line 3641 was in existence at the time the 10140-25 20S
Memorandum of Understanding was executed has no position whatsoever in this discussion.
Now let us consider the second question-namely-"Is the Odem to Harlingen to Brownsville return run still a frozen run?"
When the Memorandum of Understanding was negotiated in 1945, train. 15 and 16 operated on the frozen run from San Antonio to Mission. In 1952 and in 1958-trains 15 and 16 still operated on the remaining segment of that run-namely, the Odem to Harlingen segment. "Even today", reportedly, "trains 15 and 16 are still operating on that run". Line 3641 was merely the designated number of a car assigned to trains 15 and 16.
On June 27, 1952, the Carrier "discontinued operation of the San Antonio-Mission car designated Line 3671, and maintains that "as a result, the `frozen' run ceased to exist". The Carrier, however, continued, reportedly for racial reasons, the conductor operation between Odem and Harlingen - and extended to Brownsville -from June 27, 1952 to May 10, 1958. On the latter date, the Carrier discontinued the services of conductors on the Odem to Brownsville return run for the reason of economy and replaced them with porters-in-charge.
If the Odem to Harlingen to Brownsville operation was no longer a frozen run, the Carrier's action in permitting it to continue to be a conductor operation for approximately six years-would seem to be an extremely generous gesture. However, when one examines the Operation of Conductor Form 93:126-offered in evidence-dated June 26, 1952 and effective June 27, 1952, another reason for the Carrier's action becomes readily apparent. Incidentally, Form 93:126 is the form that guides and controls the operation of conductors all over the United States.
On page 2 of that form-in answer to item 1-the following notation appears:
The Carrier maintains that the above statement was merely a clerical error and was prepared in error. However, the Board is disinclined to share that view. A form that bears the approval of Superintendent W. P. Mahaffey, the initials of an Assistant Vice President, and the stamp of the ManagerCar Service Employes" cannot-by any stretch of the imagination-be construed as a simple clerical document. It is, in our opinion, a document of the utmost importance and, therefore, it is measured and weighed accordingly.
The Carrier's contention regarding the racial question is not supported by the facts and is, accordingly, dismissed.
In view of the foregoing, the Board must conclude that the Odem to Harlingen to Brownsville return run is still a frozen run. Consequently, it is the decision of the Board that: 10140-26 209
FINDINGS: The Third Division of the Adjustment Board, 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 the Company violated the Agreement and the Memorandum of Understanding Regarding Conductors and Optional Assignments.
Award 10140 is in error, in the first place, in concluding that, if conductors are assigned to trains and not lines and inasmuch as line numbers may be changed unilaterally, runs are frozen and not cars or lines. The fallacy of this conclusion is, first, because train numbers also are subject to change unilaterally, and second, because herein there was no dispute between the parties concerning the Organization's admission as follows: 10140-2 7 210
The record irrefragably shows that, prior to June 27, 1952, neither the car of Line 3308 nor the car of any other line ever was a "one-car conductor operation" between Odem and Harlingen; on the contrary, the record shows that multiple car operation was previously in effect between these points.
Furthermore, the listing of line numbers on Appendix "B" is more significant than the listing of train numbers. Obviously, the line number is the key which identifies the "one-car conductor operation" on the trains listed which was frozen; in the instant case, it only could have referred to the "onecar conductor operation" of Line 3308. In any event, Award 10140 also is in error in assuming that the parties engaged in a vain and useless act in listing the line numbers (Awards 7658, 6723, 6311, 4322), and this Board is without authority to add thereto the "one-car conductor operation" of Line 3641 which admittedly was not in existence when the 1945 Agreement was negotiated.
Furthermore, if the run between San Antonio and Mission were frozen for the complete round trip between these points, which is denied, the separation between Appendix "A" and Appendix "B" would have been unnecessary and superfluous. Award 10140 is in error in assuming that the parties engaged in a vain and useless act in making this separation.
In addition, the Organization admitted that the Memorandum of Understanding does not apply to that portion of the run between Harlingen and Brownsville and that the alleged violation occurred only covering that portion of the run between Odem and Harlingen.
LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT
DOCKET PC 10820, AWARD 10140
Running true to form the habitual dissenters attempt to point out how wrong the Referee was in his findings and Award. The dissent is not only specious, but palpably erroneous in its contentions.
There is no merit to the contention that line numbers are the controlling factor. That contention is diametrically opposed to the position taken by Mr. H. R. Lary, Supervisor of Industrial Relations, The Pullman Company in Docket PC 2466-Award 2762, in which he stated: 10140-28 911
Mr. Lary reaffirmed his position in Docket PC 3963-Award 4007 that Conductors are assigned to specific trains-not lines.
Inasmuch as the dissenters were fully aware of the Carrier's position in both Dockets, supra, it follows that the argument with respect to "lines" as being the controlling factor, is patently erroneous.
It is fundamental that anyone who attempts to distort or misconstrue the agreed upon application of the terms of an Agreement for the purpose of misleading others in order to support an untenable position, as here, cannot be trusted under any circumstances.
The record does not support any of the contentions made in the dissent; therefore, they are valueless.
Rule 64 and the ":'Memorandum of Understanding Regarding Conductor and Optional Assignments" are clear and unambiguous and provide that so long as a "frozen" run-or any part thereof-remains in existence, a Conductor will be assigned to it. Because the run here in reference was shortened did not remove it from the "frozen" category, and was so recognized by the Carrier as evidenced by the "Operation of Conductors Form" dated June 26, 1952.
The conclusion of the majority in Award 10140 is correct. As the Board stated in Award 5079 - - - -
The Award is proper in accordance with the facts of record and the controlling Rules.
CARRIER MEMBERS' REPLY TO LABOR MEMBER'S ANSWER TO
CARRIER MEMBERS' DISSENT TO AWARD NO. 10140,
DOCKET NO. PC-10820
The Labor ':Member's Reply to Carrier Members' Dissent emphasizes the importance of line numbers. Since conductors are assigned to runs on trains 10140--29 212