THIRD DIVISION
(Supplemental)
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS
Clearly the railroad had the right to make the change it did here and the change made was in conformance with the agreement and not in violation thereof, and the Carrier respectfully requests the claim be denied.
The damages requested in second paragraph of claim for alleged violation of agreement is to "make the employes of the positions existing at Sedalia, Missouri, prior to date of such violation, whole."
L. W. McCall, Elmer Paul, and G. W. Anderson were the employes assigned to the positions existing at Sedalia, Missouri, prior to date of alleged violation, namely November 30, 1956.
L. W. McCall resigned from the service December 1, 1956. He was paid in full for all services rendered. He has not been damaged and nothing could possibly be due him.
Elmer Paul took leave December 1, 1956, and resigned April 10, 1957. A man on leave is entitled to nothing and has not been injured. Paul is whole, has not been damaged, and is due nothing.
G. W. Anderson laid off sick December 1, 1956, took leave January 11, 1957, and resigned April 18, 1957. A man off sick and on leave is entitled to nothing under the agreement. He is whole, has not been damaged, and is due nothing.
All data submitted in support of the Carriers' position have been heretofore submitted to the employes or their duly accredited representatives.
The Carriers request ample time and opportunity to reply to any and all allegations contained in Employes' and Organization's submission and pleadings.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, deny each and every, all and singular, the allegations of the Organization and Employes in alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim, and grant said Railroad Companies, and each of them, such other relief to which they may be entitled.
OPINION OF BOARD: The parties involved in this dispute are parties to Agreement of May, 1936, Washington, D. C., referred to in the industry as the Washington Agreement. 11590-47 1027
On September 1, 1956, Missouri-Kansas-Texas Railroad Company, herein called Carrier, served notice on Telegraphers, Petitioner herein, and its employes represented by that Organization which reads, insofar as here material:
At the same time the Missouri Pacific Railroad Company, herein referred to as M-P, served a like notice on Telegraphers and M-P employes within the scope of that organization's agreement with M-P.
Telegraphers have separate collective bargaining agreements with Carrier and M-P.
In furtherance of effectuating compliance with the Washington Agreement the General Chairman representing Carrier's employes, the General Chairman representing the M-P employes and officials representing Carrier and M-P conferred in an attempt to work out the details of the "coordination." The Carriers informed the General Chairmen that they would be agreeable to placing in effect any distribution of the work between employes, covered by the separate collective bargaining agreements, as could be agreed upon by the General Chairman.
Notwithstanding that the General Chairmen failed to reach an agreement as to distribution of work affected by the "coordination," Carrier and M-P effectuated the "coordination" on December 1, 1956. As a consequence the work performed for Carrier, prior to that date, by two Telegrapher-Clerks and a swing position was transferred to employes of M-P and Carrier abolished the positions.
It is undisputed that the three positions abolished by Carrier on December 1, 1556, came within the scope rule of the existing collective bargaining agreement between Carrier and Petitioner herein. It is well established that when the agreement so provides-construing the agreement in vacua -the Carrier may not unilaterally abolish such positions and transfer the work to employes of another carrier, without breaching the agreement. See, for example, Awards Nos. 951, 1527 and 4698. If Carrier has a defense to such an action it must be founded in a superseding contract between it and the collective bargaining agent of the employes.
The Washington Agreement, to which the parties involved in this dispute are signatories, details a procedure, which if adhered to, supersedes the collective bargaining agreement and permits a carrier to transfer work to an- 11590-19 1_029
other carrier to effect a "coordination" as that term is defined in Section 2(a) of the Washington Agreement.
Petitioner contends that Carrier failed to comply with Section 5 of the Washington Agreement in that it made an assignment of employes which was not on the basis of an agreement between the carriers and the organizations of the employes affected by the "coordination." Therefore, Carrier having failed to comply with the Washington Agreement, the provisions of the collective bargaining agreement prevail and must be honored.
Carrier, admitting that the transfer of the work was made to M-P employes in the absence of agreement between the carriers and the organizations of the employes affected, contends that any dispute concerning compliance with Section 5 of the Washington Agreement can only be resolved by recourse to the arbitration procedure detailed in Section 13 of that Agreement.
It is uneontroverted that the action taken by Carrier in the abolishment of positions and transfer of the work to M-P employes was a "coordination" within the meaning of that term as defined in Section 2 (a) of the Washington Agreement. The issue narrows as to whether a carrier may derogate the existing collective bargaining contract in the absence of fully complying with the procedures and obligations attendant to a "coordination" imposed by the Washington Agreement.
As we read Section 5 of the Washington Agreement it imposes an absolute bar to carrier making an assignment of employes necessary to a "coordination" unless it is done on the basis of an agreement between the carriers and the organizations of the employes affected. If the parties fail, through negotiations, to reach the indispensable agreement, which is a condition precedent to any assignment of employes, the burden is upon the carrier to have the dispute resolved by submitting it for adjustment in accordance with Section 13. It is the Carrier who seeks the privilege of effecting a "coordination" with the protections afforded by the Washington Agreement. Therefore, it is the Carrier who must fully comply with the mandates of the Washington Agreement to establish it as a defense to what, otherwise, would be a violation of the collective bargaining agreement.
Where, as in this case, the carriers and organizations of the employes affected failed, through negotiations, to reach an agreement as to the assignment of employes made necessary by the proposed "coordination," Carrier was not free to arbitrarily assign employes, as it unilaterally chose, and realize compliance with the Washington Agreement. Carrier had a remedy under Section 13 of the Agreement. Until that remedy was exhausted and Decision issued, Carrier was not free to effectuate the "coordination." Such a Decision may have directed the carriers to make an assignment of employes entirely different than that which Carrier unilaterally and arbitrarily did.
Carrier having failed to comply with the Washington Agreement we find that Agreement is not a defense to Carrier's violation of the collective bargaining agreement. See and compare the following Decisions of referees appointed pursuant to Section 13 of the Washington Agreement: Docket No. 57, Docket No. 70 and Resubmitted Docket No. 70. 11590-50 1030
Carrier's allegations concerning the employer-employe relationship as between Carrier and Claimants, after December 1, 1956, and Claimant's availability for employment have been considered. These are factors that are addressed to computation of and compliance with a monetary award. The raising of such issues in the Submissions is premature.
We find that Carrier violated the collective bargaining agreement as alleged in the Claim. We will award to Claimants Elmer Paul and G. W. Anderson that amount of money which will make each of them, respectively, whole for such loss of wages as each may have suffered because of the violation in the period from December 1, 1956 to the date of this Award. This is to be computed on the basis of what each Claimant, respectively, would have earned, during the aforesaid period, absent the contract violation, less what he earned and less such amount received from Carrier purportedly in satisfaction of the requirements of the Washington Agreement.
Other than as set forth in the preceding paragraph we will deny the Claim.
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
Claim sustained in part and denied in part as prescribed in the Opinion, above.