THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
NEW YORK CENTRAL RAILROAD
(Southern District)
OPINION OF BOARD: On June 8, 1965 the Carrier, pursuant to a plan of reorganization which included the establishment of a Demurrage Industrial Car Control Center at Moraine, Ohio, transferred the Claimant and his position to Moraine from Dayton, Ohio. At the time of this action there was in effect between the parties hereto an agreement referred to as the February 7, 1965 National Agreement. The Organization contends that the Carrier's action violated Article III, Section 1, of that Agreement which reads as follows:
"The organizations recognize the right of the carriers to make technological, operational and organizational changes, and in consideration of the protective benefits provided by this Agreement, the carrier shall have the right to transfer work and/or transfer employes throughout the system which do not require the crossing of craft lines. The organizations signatory hereto shall enter into such implementing agreements with the carrier as may be necessary to provide for the transfer and use of employes and the allocation or rearrangement of forces made necessary by the contemplated change. One of the purposes of such implementing Agreements shall be to provide a force adequate to meet the carrier's requirements."
It is the position of the Carrier that as the gravamen of the claim presented herein involve the application and interpretation of the February 7, 1965 National Agreement, the Dispute Committee created by that Agreement is the proper forum to hear this dispute.
There is sufficient precedent to substantiate the position of the Carrier. W e hold as we did in Award No. 14979 which involved the February 7, 1965 National Agreement, that "procedures established and accepted by the parties themselves for resolving disputes under the Job Stabilization Agreement should be respected."
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.
To dismiss a dispute over which we clearly had jurisdiction is not honoring the terms of the Railway Labor Act and the purposes for which this Board was created.
Under the terms of the Railway Labor Act, when we have a dispute " * * * growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions * * * " and have being for the purpose of providing for the " * * * prompt and orderly settlement of all disputes growing * * * out of the interpretation or application of agreements covering rates of pay, rules, or working conditions * * * " and fail or refuse to do so we simply are not meeting our responsibilities and obligations.
Moreover, when the Majority holds that "procedures established and accepted by the parties themselves for resolving disputes under the Job Stabilization Agreement should be respected," and proceeds to dismiss the claim then the Majority is clearly guilty of not only interpreting the parties "Job Stabilization Agreement" but "interpreting" it in a wrongful manner. For example, the parties agreed in the "Job Stabilization Agreement" that:
Note that their agreement is not mandatory; that their agreement makes it permissible for either party to use that method of resolving disputes arising under that agreement. In this award, and others, neither of the parties chose to submit the dispute to the committee established under the February 7, 1965 agreement. It appears that the language of Section 1, quoted above, leaves the parties free to chose for themselves whether or not to submit a dispute to that Committee and it would seem that the Majority here would have no business whatsoever passing judgment on that decision or, in effect, attempting to require them to follow that procedure rather than choosing to follow a procedure authorized under the Railway Labor Act. Clearly, the Majority has no right to make mandatory that which the parties have made permissive. Only if one of the parties chooses to refer a dispute to that Committee does that agreement provide for any compulsion, all of which clearly reveals that the parties thereto know how to write mandatory rules when they intend to and indicates that they surely would have fashioned Section 1 that way if that were their intent.
REPLY TO LABOR MEMBER'S DISSENT TO AWARD 16869,
DOCKET CL-17336 (Referee Robert A. Franden)