NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
1. Carrier violated and continues to violate the rules of the Clerks' Agreement when, beginning March 27, 1961, it did, without conference, negotiation or agreement, arbitrarily and unilaterally remove work from St. Paul, Minnesota seniority district No. 29, and transfer same to Minneapolis, Minnesota seniority district No. 26, and place it at Minneapolis, Minnesota.
3. Carrier shall compensate employe H. Dunbar, occupant of Check Clerk position, and Employe P. Lynch, Sr. occupant of Lift Operator position, for all loss of earnings suffered through abolishment of those positions; also all other employes, who suffer loss of earnings through displacement or otherwise as a result of the Carrier's action in disregarding their seniority rights and removing their work to another seniority district, be compensated for any and all loss or adverse effect retroactive to the date on which the violation occurred. Claim to continue until the agreement has been complied with.
EMPLOYES' STATEMENT OF FACTS: The handling of LCL freight consigned to industries at St. Paul, Minnesota is work which has always been assigned to employes in Seniority District No. 29 at St. Paul, Minnesota.
During the past few years Carrier has removed the LCL work in small amounts from positions and employes in Seniority District No. 29 and transferred it to the Minneapolis Freight House and assigned it to positions and employes in Seniority District No. 26. Verbal complaints were made by the Local Committee of the Brotherhood in connection with the piece-meal removal
Submitted as Employes' Exhibit B is copy of the General Chairman's letter to Mr. S. W. Amour, Assistant to Vice President dated January 4, 1962.
CARRIER'S STATEMENT OF FACTS: The instant claim has not been properly handled by the Organization in accordance with the provisions of Article V of the Agreement of August 21, 1954 in that the instant claim was never presented in the first instance to Carrier's Agent at St. Paul, Minnesota, who is the Carrier Officer authorized to receive this claim in the first instance, therefore, the instant claim is barred.
Effective March 27, 1961 the Carrier rearranged its less carload freight merchandise schedules at St. Paul and Minneapolis, Minnesota to provide for more efficient, expeditious and satisfactory service for its patrons so as to continue on a competitive basis in the handling of LCL merchandise, said rearrangement being no different than hundreds of like rearrangements of LCL merchandise schedules the Carrier has, of necessity, made at various points on its property, inclusive of the Twin Cities area.
The "before and after" situation at both St. Paul and Minneapolis as well as the improperness and invalidity of the instant claim will be fully discussed in Carrier's Position.
There is attached hereto as Carrier's Exhibit A copy of letter written by Mr. S. W. Amour, Assistant to Vice President, to Mr. H. V. Gilligan, General Chairman, under date of November 1, 1961 and as Carrier's Exhibit B copy of letter written by Mr. Amour to Mr. Gilligan under date of May 4, 1962.
OPINION OF BOARD: Effective March 27, 1961, Carrier rearranged less carload freight merchandise schedules at St. Paul and Minneapolis, Minnesota. The Brotherhood maintains that Carrier arbitrarily and unilaterally removed work from St. Paul Seniority District 29 and transferred it to Minnesota Seniority District 26 in violation of the Clerks' Agreement. It contends that the work of handling LCL freight belongs to the employes in the Seniority District to which it is assigned and any transfer of work must be made through negotiation. It asserts that prior to March 27, 1961, LCL freight consigned to industries in St. Paul was unloaded by employes in Seniority District 29, but after that date all LCL merchandise was diverted to Minneapolis Freight House and handled by employes in Seniority District 26.
Carrier points out in its denial that prior to March 27, 1961, not only did employes in the St. Paul House, Seniority District 29, unload LCL freight for consignees in St. Paul, but employes in the Minneapolis Freight House, Seniority District 26, also unloaded LCL freight destined for St. Paul. After that date no LCL cars were billed to St. Paul, but instead all are billed to Minneapolis, and after unloading, the merchandise is either taken by Carrier's pick up and delivery contractor to the consignee at St. Paul, or picked up by the consignee at the freight house. This change, it maintains, cannot be considered a transfer of work from one district to another because employes in the Minneapolis House have always unloaded LCL freight for St. Paul. It eliminated duplicated work and did not require an increase in the forces at
Minneapolis. Moreover, Carrier emphasizes there was no change in Seniority Districts and that the Agreement does not restrict its right to rearrange its transportation service as it did.
The issue of transfer of work and arguments similar to those of the instant case were considered by this Referee in Award 13918. In that Award the Board reviewed Award 9193 and the decision of Federal District Court in West Virginia, Hanson v. Chesapeake & Ohio Railway Company, 263 Fed. Sup. 56 (1964) which set aside Award 9193. This Board in Award 13918 held, as in the Federal District Court decision, that since the Seniority Districts remained intact the diversion of work did not require negotiation with Brotherhood under the Agreement. We have not found any recent decision which has overturned this ruling. For these reasons we hold that the Agreement was not violated.
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
LABOR MEMBER'S DISSENT TO AWARD 14825,
DOCKET CL-13589
Award 14825, Docket CL-13589, is in error and cannot be accepted as a proper interpretation of the Agreement rules.
In Award 14825, the Referee did not honor the case law as contained in Awards of this Board or Award 9633 on the involved Carrier. Instead he relied on his earlier Award 13918 as well as the decision of the Federal District Court in West Virginia which arose as a result of an action to enforce Award 9193 of this Division. The Court case was dated December 8, 1964 and is: "Hanson v. Chesapeake and Ohio Railway Company" reported in 263 Fed. Sup. 56 (1964). The brief opinion of the Referee in Award 14825 with respect to the Court case was that the Federal District Court "set aside Award 9193," which is obviously true, however, many very significant things have occurred since October 1965 when Award 13918 was adopted and October 1966 when the instant claim was presented to the Referee.
* * * The Court of Appeals affirmed, agreeing with the interpretation put upon the contract by the District Court, and thereby rejected the Board's interpretation of the contract and its decision on the merits of the dispute. 336 F. 2d 543. We granted certiorari because the holding of the two courts below seemed, in several respects, to ran counter to the requirements of the Railway Labor Act as we have construed it. U.S. -
Section 3 First (i) of the Railway Labor Act provides that `disputes between an employe or group of employes and a Carrier or Carriers growing out of grievances or out of the interpretation or application of agreements' are to be handled by the Adjustment Board. In § 3 Congress has established an expert body to settle `minor' grievances like petitioner's which arise from day-to-day in the railroad industry. The Railroad Adjustment Board, composed equally of representatives of management and labor is peculiarly familiar with the thorny problems and the whole range of grievances that constantly exist in the railroad world. Its membership is in daily contact with workers and employers, and knows the industry's language, customs, and practices. See Slocum v. Delaware L&W R. Co., 339 U. S. 239, 243244. * * *. Paying strict attention only to the bare words of the contract and invoking old common-law rules for the interpretation of private employment contracts, the District Court found nothing in the agreement restricting the railroad's right to remove its employes for physical disability upon the good-faith finding of disability by its own physicians. Certainly it cannot be said that the Board's interpretation was wholly baseless and completely without reason. We hold that the District Court and the Court of Appeals as well went beyond their province in rejecting the Adjustment Board's interpretation of this railroad collective bargaining agreement. As hereafter pointed out Congress, in the Railway Labor Act, invested the Adjustment Board with the broad power to arbitrate grievances and plainly intended that interpretation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, acting on the Adjustment Board with their long experience and accepted expertise in this field.
Section 3 First (m) provides that Adjustment Board awards 'shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.' The award of the Board in this case, based on the central finding that petitioner was wrongfully removed from service is two-fold, consisting both of an order of reinstatement and the money award for lost earnings. Thus there arises the question of whether the District Court may open up the Board's finding on the merits that the railroad wrongfully removed petitioner from his job merely because one part of the Board's order contained a money award. We hold it cannot. This Court time and again has emphasized and re-emphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railway Adjustment Board. In Brotherhood of Railroad Trainmen et al. v. Chicago River & Indiana R. Co., 353 U. S. 31, the Court gave a Board decision the same finality that a decision of arbitrators would have. In Union Pacific R. Co. v. Price, 360 U. S. 601, the Court discussed the legislative history of the Act at length and pointed out that it 'was designed for effective and final decision of grievances which arise daily' and that its 'statutory scheme cannot realistically be squared with the contention that Congress did not propose to foreclose litigation in the courts over grievances submitted to and disposed of by the Board . . : 360 U. S., at 616. Also in Locomotive Engineers v. Louisville & Nashville R. Co., 373 U. S. 33, the Court said that prior decisions of this Court had made it clear that the Adjustment Board provisions were to be considered as 'compulsory arbitration in this limited field: p. 40, 'the complete and final means for settling minor disputes,' p. 39, and 'a mandatory, exclusive, and comprehensive system for resolving grievance disputes: P. 38.
The Railway Labor Act as construed in the foregoing and other opinions of this Court does not allow a federal district court to, review an Adjustment Board's determination of the merits of a grievance merely because a part of the Board's award, growing from its determination on the merits, is a money award. The basic grievance herethat is, the complaint that petitioner has been wrongfully removed from active service as an engineer because of health-has been finally, completely, and irrevocably settled by the Adjustment Board's decision. Consequently, the merits of the wrongful removal issue as decided by the Adjustment Board must be accepted by the District Court.
There remains the question of further proceedings in this case with respect to the money aspect of the Board's award. The Board did not determine the amount of back pay due petitioner on account of his wrongful removal from service. It merely sustained petitioner's claim for 'reinstatement with pay for all time lost from October 15, 1955.' Though the Board's finding on the merits of the wrongful discharge must be accepted by the District Court, it has power under the Act to determine the size of that money award. The distinction between court review of the merits of a grievance and the size of the money award was drawn in Locomotive Engineers v. Louisville &
which plainly shows that the law of the land was that the District Courts, e.g., the Gunther and the Hanson cases, exceeded their "province." This should have caused the Referee to shun his earlier reliance on the District Court case-and revert to the "case law" of this Board which overwhelmingly supported such action. For example, this Board has repeatedly held that positions or work may not arbitrarily be removed from the confines of one seniority district and placed in another, as was done here. Awards 99, 198, 199, 610, 612, 752, 753, 973, 1403, 1440, 1611, 1612, 1685, 1711, 1808, 1892, 2050 3964 4534 4653 4667 4674 4987, 5091, 5100, 5195, 5240, 5311, 5396, 5413, 5437, 5441, 5541, 5731, 5895, 5995, 6016, 6021, 6024, 6036, 6309, 6357, 6420, 6453, 6938, 7816, 9193, 10982, 11582, 13853, and many others.
Secondly: The Federal Law with respect to Awards of the Adjustment Board was amended by the following:
Section 2. (a) The second sentence of section 3, First, (m), of the Railway Labor Act is amended by striking out, 'except insofar as they shall contain a money award:
(b) Section 3, First, (o), of the Railway Labor Act is amended by adding at the end thereof the following new sentence: 'In the event any division determines that an award favorable to the petitioner should not be made in any dispute referred to it, the division shall make an order to the petitioner stating such determination.'
Thus making the law read, with respect to Section 3, First, (m), (o) and (p) as follows:
"(m) The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be
1. * * * The elimination of the handling at St. Paul did not transfer the work to Minneapolis
* * * A transfer of work or a change in the nature of the handling would have been reflected in the Minneapolis warehouse forces. * * *
'* * * I am unable to agree with your contention regarding an alleged transfer of work * * *' and closing arguments in rebuttal brief was ' * * * contrary to the employes' contention there was no transfer of work * * *' and 'we are not here involved with a transfer of work' and the ' * * * Carrier reiterates that there was no transfer of work. * * *'