CHICAGO AND WESTERN INDIANA
RAILROAD COMPANY
We now ask the Chicago and Western Railroad Company to remove the thirty (30) demerit marks assessed against Messrs. Besley and Rhyne and their records cleared of all charges which relate to the instant dispute.
OPINION OF BOARD: On October 28, 1961, Ralph M. Besley and Samuel W. Rhyne, the Claimants herein, were laid-off through a reduction in force. On November 4, 1961 at 7:25 A.M. and 7:50 A.M. the Carrier called the Claimants instructing them to report for an eight hour assignment on November 4, 1961. The Claimants refused to respond stating the Carrier's call was in violation of the agreement in that the Carrier was required to give notice by mail and that the Claimants were allowed five days in which to report. The Carrier disciplined the Claimants for their refusal to respond to the orders of the Carrier by assessing 30 demerits against each of the Claimants.
The portion of the agreement upon which the Claimants rely to justify their refusal to comply with the order of the Carrier is Rule 11 (a):
Rule 11 (a) taken alone leaves doubt about the difference between responding to call and reporting to duty. However, Rule 11 (b) also applies to the circumstances of this docket.
Rule 11 (b) identifies work of less than 30 days as temporary work. The work for which the Claimants were called in this docket was for eight hours, therefore, of less than 30 days and accordingly, temporary work. Rule 11 (b) states that temporary work shall be "offered", utilized the term "respond to call", and we, accordingly, conclude that the work shall be offered by call. Rule 11 (a) provides that an employe must respond to call for service promptly. "Call" is not defined, but as Rule 11 (a) provides that an employe shall respond to call immediately and report to duty after being notified by mail, a call and notification by mail are two different things. We do not hold that a "call" is only a telephone call, but we do hold that a telephone call would be a "call" as used in Rule 11.
Accordingly, we do not find that the Carrier's telephone calls on November 4, 1961, were in violation of the agreement, but rather we find that the telephone calls were in conformity with the agreement.
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
(b) Temporary work of less than thirty (30) days duration will be offered to senior laid-off employe who is available but failure to respond to call for temporary work will not cause loss of seniority."
This will confirm our discussion and understandings reached in conference in my office on October 10, 1961, attended by you and Messrs. Ross, Rhue and Rhyne, representing the red caps employed by the Chicago and Western Indiana Railroad Company, and Messrs. Swislow, Mousteiko, and myself representing the Company.
On March 8, 1961, President Eugene E. Frazier of the United Transport Service Employes served on the Carrier, thirty day notice under the Railway Labor Act, as amended, of desire to revise and supplement all existing agreements in accordance with the employes' proposal set forth in 'Appendix A' attached to their notice dated March 8, 1961. 13627-5 887
The initial conference at which the employes' proposals were discussed was held on April 6, 1961. The Carrier's position on these proposals was outlined in a letter dated April 12, 1961, to Mr. Frazier by the undersigned. Briefly described, that position was:
Conference were resumed on change proposed in Rule 14, the last of which was held on October 10, 1961 with the following results:
Rule 14 will be revised to read as is shown in the attached draft of Memorandum of Agreement, which is subject to further consideration and acceptance by both parties.
All presently existing regularly established positions including Regular Relief Positions will be abolished on the date the Red Cap Baggage Center at Dearborn Station is established and placed in operation and the necessary new positions rebulletined with changed hours of assignment, rest days, rates of pay, and brief description of duties indicated thereon.
Seniority Roster will be published and extra board established in accordance with provisions of the Memorandum of Agreement to be entered into.
Your courtesy and co-operation in the settlement and disposition of all matters involved is appreciated.
If you will contact me after you have had an opportunity to review and consider the attached draft of Memorandum of Agreement, 13627-6 888
It is understood and agreed that in the application of Rule 7(c), the waiving of rights to a bulletined position is applicable only to red caps holding a regular position, but this provision does not permit a Red Cap to move to the extra board when a regular position is available which he can hold. When a regular position is advertised for bid and not filled by a regular man, an extra or furloughed rep cap whose seniority entitles him to such regular position must accept same and report for work thereon within five days after expiration of adver tisement bulletin, or forfeit his Red Cap seniority.
Rule No. 11-INCREASING FORCES-of the current working agreement is hereby cancelled in its entirety and the following rule substituted in lieu thereof effective - _ 1961.
Rule No. 11-REDUCTION AND/OR INCREASE IN FORCEFILLING TEMPORARY VACANCIES-EXTRA WORK
Work over and above that to be performed by regularly assigned positions is extra work.
The Company will endeavor to provide extra men with as much employment as is available for them under this agreement, but this endeavor will not be construed in any way as a guarantee of any number of hours per day, days per week or per month than specifically provided herein, nor shall any claim be filed or entertained on behalf of an extra man when not used to fill a vacancy or perform extra work when in the opinion of the company such work is not required.
Extra board employes will be called or notified to report for available work on a first-in first-out basis. They are required to accept all work for which they are called or notified. They will be compensated at straight time rate on basis of actual time required to remain on duty under orders of management with a minimum allowance of two hours, except when used to fill a vacancy on regular position created by absence of a regularly assigned employe, in which case they will be paid a minimum of eight hours."
"Rule No. 14-Hours of Assignment-of the current working agreement is hereby cancelled and the following rule is substituted in lieu thereof effective _ _ , 1961.
(a) Eight hours exclusive of meal period shall constitute a day's work.
(e) The hours of work for employes assigned to regular positions will not be reduced below eight (8) on any day in order to absorb extra time, in excess of eight hours, worked on any other day or in any 24-hour period.
This agreement is in full settlement of disputes growing out of notice served under date of March 8, 1961, by the United Transport Service Employes on the Chicago and Western Indiana Railroad Company of desire to revise and supplement existing agreements in accordance with employes' proposals set forth in `Appendix A' attached to said notice.
"This agreement is effective as provided herein and shall remain in force until changed in accordance with provisions of the Railway Labor Act, as amended.
The negotiations on the proposals continued; yet, on November 4, 1961, Claimants were called on the telephone, and work amounting to one eight-hour tour of duty was offered them, but they refused such offer. Thereafter, they were disciplined to the extent of being assessed thirty (30) demerits.
They objected to and appealed from this unjust discipline, and their case was deadlocked by the Third Division and brought before the Referee for adjudication.
It is clear from the above, which was all in the record and known to the Referee, that Claimants had every right to accept or reject offers of work of the nature here involved. They also had every right to expect that their rights would be upheld by this Board. Instead, Award 13627, was rendered, thus ending Claimants' right of appeal. All that can now be done is to dissent in hopes that others charged with the responsibility of interpreting Agreements, which necessarily spell out and inhibit the rights of both parties thereto, will not be further led towards the idea that these Agreements are meaningless.
Without Agreement support the question of whether or not Claimants would make themselves available for such work on short notice was entirely up to Claimants. Carrier could not force them to drop what they were doing and immediately respond to work when all the Carrier had to offer them was one eight-hour tour. To have such a source of manpower at its disposal would require agreement similar to that which Carrier was seeking.
After having had the full set of facts and the complete record in his possession for over four days, the Referee wanted to know if the Claimants herein were fired. In fact, he "insisted" on a definite answer! How, or why, that would sway his decision is unknown. It does, however, indicate to the writer that "maybe he would do something for Claimants if they had been fired." In other words, the Referee seems disposed to sit with this Board and mete out his own brand of justice which, insofar as the record reveals and the Employes are concerned, amounts to injustice.
In short, this Referee's reasoning, made clear in his oral remarks as well as his Awards, are based not on the rules of any agreement but, rather, on his own feelings. (See dissent to Award 11882 and note in particular the reference thereto with regard to the uninhibited exercise of "such awesome powers" as is reposed in this Board).
Award 13627 is based upon the Referee's obvious confusion concerning his obligations and duties and the rights of the parties under a collectively bargained agreement. The Award is entirely in error. It is based solely on the Referee's own personal "laissez faire" philosophy of non-interference with Management's "divine right to manage", unless, of course, on those rare occasions when, in the Referee's opinion, there is very good reason to alter management's actions. The Award is erroneous in every respect and should be shunned by all who take their duties and obligations to interpret Agreements seriously.
Claimants were clearly acting within their rights as spelled out in the Agreement. Carrier had no agreement support whatsoever for its actions. 13627-ii 893
CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT
TO AWARD 13627, DOCKET CL-13575
This opinion was also expressed by the Petitioner in progressing the claim and is squarely contradicted by the language of existing Rule 11, paragraph (b) which places an obligation on the Carrier to offer temporary work to the senior laid-off employe who is available, and that employe "must respond to call for service promptly" (Rule 11 paragraph [a]). Here, the Claimants were contacted and were available, but arbitrarily refused the call.
We might point out in passing, that even in those cases where the responsibility to answer a call promptly was not spelled out in the contract, we have recognized this as a claimant's correlative responsibility when the Carrier has the obligation to offer him the work. In Award No. 2 of Special Board of Adjustment 538 (Robertson), we said:
Furthermore, while we decided it unnecessary to reach the question, in view of our finding that Carrier acted in conformity with the Agreement, even if it were a fact as Dissenter asserts, that Claimants' refusal to accept the call was founded upon a sound interpretation of the Agreement, the Claimants nevertheless were compelled to obey the orders of their superiors and file their grievance in an orderly manner. See Awards 4886, 8512, 8711, 11238, 11323, 12687, 13514, 12996 and many others too numerous to mention.