THIRD DIVISION

(Supplemental )




PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

(Eastern Lines)


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6091) that






















EMPLOYES' STATEMENT OF FACTS: The collective bargaining agreement between the parties covering these employes bears effective date of February 21, 1957, a copy of which is on file with the Board and by reference is made a part of submission. Rule 29 of the Agreement was amended by the adoption of the Non-Operating Employes' National Vacation Agreement of December 17, 1941 as amended.

The claim was handled on the property, in the usual manner, through the highest designated officer of the Carrier to handle such matters, and the dispute was not resolved.










OPINION OF BOARD: It has been stipulated by the parties, that the facts of this case are not materially distinguishable from the facts in Award No. 16085. For the reasons stated in said Award, the claim in the instant case will be sustained.

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












Dated at Chicago, Illinois, this 9th day of February 1968.

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CARRIER MEMBERS' DISSENT TO AWARDS 16085 and 16086,

DOCKETS C'L-16511, C'L-16676 (Referee Claude S. Woody)


The claimants were not "employes" nor was the AT&SF Rwy. Co. a "Carrier" as contemplated by the Railway Labor Act while performing the work of a freight forwarder.


At all times relevant to this dispute the claimants were engaged in accomplishing the freight handling work of National Carloading Corporation, a freight forwarder. Conclusive proof of this fact is found in the organization's verified complaint in the Injunction Action litigated in the U. S. District Court for Northern District of Illinois, Eastern Division, Case No. 65C1199, as follows:







This work was consistently treated as a unit belonging to NCC and its employes or successors, even to the extent of expressly stating that NCC employes would "follow their work." The fact AT&SF Rwy. Co. accepted this work from NCO via C&NW did not alter the fact that it was a freight forwarder's work and not subject to the jurisdiction of this Board. AT&SF Rwy. Co. was simply standing in the shoes of NCC until NCC again tools over its activities.


Merely because the AT&SF Rwy. Co. was a "carrier" for some purposes does not necessarily mean it is a "carrier" in all of its activities. This clearly


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was not a carrier function but that of a freight forwarder of which this Board does not have jurisdiction.




Awards 16085 and 16086 are in error on the merits. Award 15913 is distinguishable on the facts and furthermore it does not hold that 'earned' means 'payable.' Obviously, these words are not synonymous. Claimants had earned the right to a vacation but that right had not matured, and did not mature when NCC took over. This was a continuing employment arrangement as previously indicated whereby the employes and the work moved as a unit from NCC to C&NW to AT&SF Rwy. Co. to NCC.


The majority's narrow interpretation of Numerical Paragraph 6 of the tripartite agreement limiting the employes rights to seniority only, is clearly in conflict with Judge Perry's Order in Federal District Court Case 65C1199 mentioned above. Judge Perry enjoined NCC from withdrawing seniority rights from these employes and in addition, enjoined NCC from "Withdrawing or diminishing any rights of employes on the combined Santa Fe-National district seniority roster heretofore had, * ' ." Paragraph E. R.p., 98. All of claimants rights without regard to their nature or source including the unmatured right to a vacation, were clearly construed in the court case as following the claimants to NCC and were included in the Order.





                      R. A. DeRossett

                      C. H. 17anoogian

                      J. R. Mathieu

                      C. L. Melberg


LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT
TO AWARDS 16085 AND 16086, DOCKETS CL-16511 AND CL-16676
(Referee Claude S. Woody)

The dissent is but a reiteration of arguments made and rejected when the cases were under consideration. Those arguments were clearly and correctly answered in the Awards.


Furthermore, to argue that under the Railway Labor Act, Claimants were not "Employes" and the AT&SF Railway Company was not a "Carrier" while or because engaged in work of loading and unloading freight pursuant to the terms of the Railway Company Tariff, is, quite obviously, wholly inconsistent with reality.


                      D. E. Watkins

                      Labor Member

                      3-14-68


Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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