NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental )
Claude S. Woody, Referee
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
(1) Carrier violated the Clerks' Agreement when it refused to
allow vacations earned during the calendar year 1965 or pay therefor
for the following employes:
Name No. of Days Name No. of Days
Lakawitch, J. Jr. 10 Victory, J. 5
Specht, C. J. 10 Walsh, M. 5
Taylor, C. T. 10 Kubiak, R. 5
Rodriguez, R. 10 Flores, F. 5
Rodriguez, Seb. 10 Tatum, J. 5
Mijatovich, M. 10 Echemarria, E. 5
Mazurowski, J. 10 Hickey, J. 5
Burke, J. 10 Becker, Roy 5
Seibert, W. 10 Gilreath, E. 5
Reyes, R. 10 Portillo, Rogelio 5
Vastalo, C. 10 Sikorski, J. 5
Cegielski, F. 5 Sepulveda, Jos. 5
Pozniak, T. 5 Torres, Wm. 5
(2) Carrier shall now be required to allow vacation pay due the
claimants listed above.
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.
Your claim and position is in direct conflict with and contrary
to the position that was advanced concerning the so-called National
Carloading Agreement effective February 21, 1957 and Section 6 of
the Tri-Party Agreement of February 5, 1957, by:
(1) The Brotherhood of Railway Clerks in the complaint
in Civil Action the Brotherhood filed in the United
States District Court for the Northern Division of
Illinois against the Pacific Intermountain Express Co.,
Inc., and its subsidiaries, National Carloading Corporation, Pacific and Atlantic Shippers and Panda Terminals,
Inc., and
(2) You under oath in the United States District Court when
called to testify in connection with the above complaint.
Moreover, in advancing the claim and position you have in
the instant dispute you are attempting to impose on this Carrier
obligations and penalties that (1) should have been assumed by the
National Carloading Corporation under the terms of the aforementioned National Carloading Agreement effective February 21, 1957
and the Tri-Party Agreement of February 5, 1957, and (2) were not
imposed on the Chicago and North Western Railway Company when
the work of and the employes assigned to the handling of National
Carloading Corporation's business were transferred from the Chicago and North Western Railway Company to the Santa Fe.
Yours truly,
/s/ O. M. Ramsey"
(Exhibits not reproduced.)
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 parties waived oral hearing;
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 Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 9th day of February 1968.
16086 19
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:
5. Prior to July, 1944, employes of NCC engaged in the freight
handling operations of the freight forwarding business of NCC in
Chicago, Illinois. On and after July 3, 1944, such
freight handling operations were transferred by NCC to the Chicago and Northwestern
Railway Company, hereafter called 'C&NW.' C&NW agreed that all
NCC employes would `follow their work,' that they would retain
their NCC seniority when working for C&NW and that the terms and
conditions of
the collective
bargaining agreement then in effect
between NCC and BRC would apply to them and to all
employes
subsequently hired by C&NW for the handling of such freight forwarding work of NCO. Thereafter, NCC and C&NW agreed to and
did establish a
joint Chicago & Northwestern-National Carloading
seniority roster whereby employes engaged in freight handling of
NCC freight forwarding business by C&NW maintained seniority
rights with both Companies.
6. On or about February 5, 1957, Defendant NCC transferred
the freight handling operations of its freight forwarding business, in
Chicago, Illinois, from C&NW to the Atchison, Topeka and Santa
Fe Railway Company,
hereafter called `Santa Fe.' Such freight
handling has thereafter been accomplished at a facility owned by the
Santa Fe and located at 3750 West 47th Street, Chicago, Illinois,
herein sometimes referred to as `47th
Street
Corwith.'
7. On or about February 5, 1957, Defendant NCC and Plaintiff
entered into an agreement, to which the Santa Fe is also a party,
which provides, inter alia, that:
(a) The employes of C&NW who then engaged in the
handling of NCC's freight forwarding work
would be transferred to Santa Fe without loss of seniority."
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
16086 20
was not a carrier function but that of a freight forwarder of which this
Board does not have jurisdiction.
The majority committed error in this case by assuming 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.
The majority interpretation of the
agreement is
in error and we dissent.
W. M. Roberts
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.
16086 21