NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19790
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis-San Francisco Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it used outside forces
to plow fire guards from Mile Pole C-567 to Mile Pole C-576 on December 2, 3,
7, 8, 9, 10, 11, 14, 17, 19, 22, 28 and 30, 1970 (System File A-8322/D-6373).
(2) The Carrier also violated Article IV of the National Agreement
of May 17, 1968 when it failed to give advance written notification to the General
Chairman of its intention to contract this work of plowing fire guards.
(3) Special Machine Engineer E. J. Lowery be allowed thirty and seventenths (30.7) hours of pay
because of the violation referred to in Part (1) hereof.
(4) The Carrier shall also pay the claimant six percent (6%) interest
per annum on the monetary allowance accruing from the initial claim date until paid.
OPINION OF BOARD: The Carrier disputes Organization's claim (1) that it violated
the Agreement when it used outside forces to plow fire guards
on certain specified days. Among other things, Carrier denies that the Organiza
tion has demonstrated that the work in question has been exclusively performed by
bargaining unit personnel to the exclusion of others. Because of the proof sur
rounding Claim Number (2) we find it unnecessary to reach a determination in that
regard. Although Claim (1) is denied, this Award should not be considered as a
resolution of the merits of that dispute.
In Claim (2) Organization alleges a violation of Article IV of the May
17, 1968 National Agreement, because of the Carrier's failure to give written
notification to the General Chairman of intention to contract out the work in
question.
The pertinent Article is as follows:
"In the event a carrier plans to contract out work
within the scope of the applicable schedule agreement, the carrier shall notify the General Chairman
of the organization involved in writing as far in
advance of the date of the contracting transaction
as is practicable and in any event not less than
15 days prior thereto.
I
Award Number 19899 Page 2
Docket Number hRd-19790
"If the General Chairman, or his representative,
requests a meeting to discuss matters relating to
the said contracting transaction, the designated
representative of the carrier shall promptly meet
with him for that purpose. Said carrier and organization representatives shall make a Zood faith
attempt to reach an understanding concerning said
contracting, but if no understanding is reached
the carrier may nevertheless proceed with said
contracting, and the organization may file and
progress claims in connection therewith.
"Nothing in this Article IV shall affect the existing rights of either party in connection with
to give advance notice and, if requested, to meet
with the General Chairman or his representative to
discuss and if possible reach an understanding in
connection therewith.
"Existing rules with respect to contracting out on
individual properties may be retained in their
entirety in lieu of this rule by an organization
giving written notice to the carrier involved at
any time within 90 days after the date of this
agreement."
The record clearly shows that the Carrier did not notify the General
Chairman of its plans to contract out the work in question; and the record also
establishes that the work was within the scope of the applicable agreement (whether
or not it was performed exclusively by the bargaining unit employees).
In a long series of Awards, commencing with Number 18305 (Dugan), this
Board has determined that the "contracting out" prohibitions of Article IV deal
with work which is within the scope of the Agreement, but that the Organization
is not required (in proving a violation of Article IV) to show that the work had
been performed exclusively.
We have reviewed the series of Awards and are satisfied that they are
well reasoned in that regard. Because of that, and because no persuasive argument
has been advanced which would compel the Board to re-examine the prior Awards concerning the quantum
The Organization requests 30.7 hours of pay at the straight time rate on
behalf of an identified Machine Engineer.
i
Award Number 19899 Page 3
Docket Number t"J-19790
The Carrier resists that request because the record demonstrates that
the Claimant suffered no pecuniary loss as a result of, or during, the time the
work in question was contracted out. Thus, the Carrier urges that the Board
reaffirm the doctrine that it will not award compensation in damages during a
period when Claimants were on duty and "under pay". In addition, although not
raised on the property in specific terms, Carrier Member stresses that Article
I7 does not, itself, confer any work rights, and consequently the employees
can not suffer a loss of work opportunity when Article IV is violated. In essence, then, it is urged
unless the Organization can establish a specific Scope Rule violation.
In order to dispose of the above contention, it is helpful, initially,
to consider the Board's treatment of the general question of awarding damages
when "full employment" has been demonstrated on the record.
This question has been considered by this Board on numerous occasions,
and one notes a general lack of a unified approach to the question. In 1967,
Referee Dorsey, in Award 15689 considered various aspects of the question, and
re-examined prior Awards of his own on the subject. In his treatment of the
question, he noted certain statutory amendments and Federal Court determinations.
He concluded that a loss of opportunities for earnings which result from the
contracting out of work may be a deprivation amounting to a tangible loss of
work and pay for which the Board is not precluded from granting compensation,
and held:
"In the light of the amendments of the Act and the
judicial development of the law, cited above, we hold
that when the Railroad Adjustment Board finds a violation of an agreement, it has jurisdiction to aw
compensation to Claimants during a period when they
were on duty and under pay."
The Award provoked a rather heated Dissent by the Carrier members, in
which they traced the Referee's prior treatment of the question. If it accomplished nothing else, at
further crystalized the fact that the issue had produced numerous conflicting
Awards and a wide variance of decisions rendered by many Referees who had served
the Board.
In any event, the rationale and ultimate conclusions of Award 15689
found favor with other Referees. For example, Referee Ives, in Award 16009 sustained a claim, citing
Court of Appeals, Fourth Circuit (discussed hereinafter). See also Award 15888
(!-.'eskett) and 1643D (Friedman). No purpose is served by a detailed listing of the
nu.-aerous Awards, prior to and since Award 15689 which have reached the same conclusion, nor should
to Awards which have reached contrary conclusions. Suffice it to say that in November of 1970 the ma
conclusions. To be sure, the above cited cases did not deal with Article IV violatio
Award Number 19899 Page 4
Docket Number :(W-19790
With the matter in that posture in November of 1970, Referee Dugan issu
the initial Award dealing with Article IV of the May 17, 1968 National Agreement
(;18305). Concerning the issue of compensation for the violation, the Referee
stated:
"In regard to damages, we adhere to the principle,
that damages shall be limited to Claimants' actual
monetary loss arising out of the Agreement violation
....
Since Claimants suffered no pecuniary loss
in this instance, we will deny paragraph 2 of the
Statement of Claim."
Yet Award 18305 did not attempt to distinguish a violation of Article IV
from other violations, as it related to the question of damages, nor did it state
or infer that the Board is without authority to award damages for an Article IV
violation, because that Article "does not confer any rights to work". The Referee
merely seemed to adhere to the line of cases which had previously denied damages
in any "full employment" situation, and in essence, he preferred the line of decisions which
There followed a series of Awards which adopted and affirmed Award 18305,
on the merits of the contracting out question, and in most part (with certain exceptions discussed b
sion of denying damages if "full employment" was demonstrated on the record. The
Referee herein has reviewed the treatment of the damage subject in each Article IV
case presented by the parties to the dispute (where no separate finding of a "Scope
violation was made), and has noted that in most part the damage denial was without
significant comment, and, of significance, no Referee stated or suggested that the
Board lacked authority to Award damages, or that the theory that Article IV "conferred no work right
In Awards 18306, 19153, and 19154 Referee Dugan reaffirmed his Award in
18305. In Award 18687, Referee Rimer stated:
"We are well aware of the line of awards which have granted
puni4lve damages to the injured party where no pecuniary loss was
in evidence; we are equally aware of the many awards which have
held that the Board is without authority to assess damages where the
Claimant suffered no loss. We will adhere to the latter principle
which we consider to be sound
...."
Thus, the Referee in Award 18687 clearly recognized the two lines of
authority which existed prior to Award 18305 as still offering him an option in
an Article IV dispute. While he chose to follow the line contrary to Award 15689,
nonetheless he rejected any concept that damages could be awarded only if a specific Scope violat
Award Number 19899 Page 5
Docket Number MW-19790
In Award 18714, Referee Devine did not discuss the "full employment"
concept other than to cite Awards 18305 and, (significantly), 18687. The same
Referee followed that line of reasoning in Awards 18716, 18860 and 19334.
In Award 18773, Referee Edgett denied damages, but stated:
"It would be an improper use of this Board's adjudicatory
function to declare, in this case, that in no other case could it
provide a remedy for Carrier's failure to give the notice required
by Article IV. Questions should be determined by the Board on a
case by case basis and not by broad general pronouncements. In
other words the Board should decide the case actually before it.
It should not attempt to lay down rules or propositions as to
possible or probable issues, for the guidance of parties not before it, on issues which may arise in
state of facts."
Clearly, the Referee recognized the Board's authority in this field.
In Award 19552 the same Referee dealing with a demonstrated scope
violation in a case which also dealt with a violation of Article TV when Claimants were fully employ
"This resulted in a clear loss of work opportunity to
claimants and for this loss the Board may, and should, provide
a remedy."
In Award
No.
18967, Referee Cull noted:
"There is building a respectable body of law and awards
dealing with lost opportunities for employment. The law is
still unsettled, however
"
(underscoring supplied)
While Referee Cull denied the money claim, his Award did not suggest
that the Board is precluded, in Article IV cases, from granting damages. In
fact he noted that had use of outside forces resulted in loss, an award of back
pay would have been made. The same Referee affirmed in Award 18968 and 19305.
In Award
No.
19056, Referee Franden noted that it was speculative if
bargaining would have had the result of obtaining the work for Claimants, and he
denied damages, but only after he stated:
"The question of damages is difficult. The Carrier's
violation deprived the Organization of the right to bargain."
Award Number 19899 Page 6
Docket Number IU-19790
Citing certain Awards discussed above, Referee O'Brien denied claims
for damages in Awards 19191, 19254, 19399, 19440 and 19600, without reference
to the Board's authority, as did Referee Cole (19327), Brent (19626 and 19627)
and Blackwell (19657).
In Award 19574 Referee Lieberman denied a claim for damages, but
stated:
"We are reluctant to treat blatant violations of contractual
rights by simple reprimand. Obviously, calculated violation of
the contract, such as in this case, cannot lead to a constructive
relationship between the parties, as contemplated by the Act."
However, exceptions to denials of monetary claims emerged. The Board
upheld money claims if the question of "full employment" had not been raised on
the property; Awards 19426 (Hayes) 19578 (Lieberman), 19724 (Lieberman) and
Claims for compensation were allowed when the question of "overtime" work was
present; 19155 (Dug an) and 19619 (Blackwell). One Award (19631-Brent) noted that
certain positions were abolished in chronological time coincident with the contracting out and held
"If the claimants actually suffered a monetary loss while
the contractor was on the property, their claim for pay at their
respective straight time rates for an equal proportionate share
of the total man hours they lost as a result of the contractor's
work should be allowed."
The Carrier's suggestion that a violation of Article IV may not result
in a loss of work opportunity certainly does not find authority in the cases cited
immediately above. If a violation does not allow for a damage award, under any
circumstance then it is of little significance whether the matter of damages was
raised on the property; whether there was "overtime" involved; or if positions
were abolished. Obviously, Referees Dugan, Blackwell, Brent, Hayes and Lieberman
did not adopt Carrier's contention in this regard.
But, a few Arbitrators granted compensation in Article IV violations
when there was no specific earning loss and the exceptions noted above were
absent. In Award 16 of Public Law Board No. 249, the Chairman of the Board sustained a claim to the
that method of compensation. Similarly, in early 1973, Referee Fayes, in Award
19635 sustained the claim of the Organization to the extent of granting one-half
(-'_) the amount of compensation paid to outside forces for the work in question.
Although the Award justified the granting of damages, (discussed hereinafter)
the rationale of an Award of one-half (;) of the amount paid to outside force!
was not explained.
Award Number 19899 Page 7
Docket Cumber ~iW-19790
Previously, in October of 1971, Referee Rosenbloom, in Award 18792
considered the question of damages concerning an Article IV violation when none
of the Claimants suffered pecuniary loss. He agreed with Claimants' assertion
that they had lost the opportunity to do the work in question and that the time
consumed in performing the work (which was contracted out) should be viewed as
a part of the totality of their work opportunities. Because a loss of job opportunity constituted a
damage,the Board held that if the Claimants should suffer a reduction of hours
(or be affected by a reduction in force) in the future, due to lack of work, at
that time a monetary loss would be incurred as a result of the violation there
under consideration. The Board concluded that Claimants therein were entitled
to monetary damages in the future if and when any of them were involuntarily less
than fully employed.
In Award 19635 (Hayes) noted above, the Board departed from prior
Awards which held that no damage award was permitted if no specific earning
loss could be shown, because it felt that to follow those Awards would, in
effect, invite the Carrier to violate, with impunity, the provisions of Article
IV and be subject only to a verbal wrist-slapping by this Division The Board
stated:
"Where the Carrier's wrongful act of contracting out
work without notification to the Employees in breach
of contract may have lead to an injury, and the facts
are in such a state that neither the Organization nor
the Carrier can conclusively prove that an injury did
or did not occur as the result of the breach, who should
suffer from the difficulty of proof? As one Arbitrator
put it, should it be the wholly innocent employees or the
employer whose breach of contract has created the possibility of injury? Past awards require the emp
endure the consequences of Carrier's breach but it would
seem wiser for the Board to chart a new course less
favorable to the initiator of the wrongful act."
(Underscoring supplied)
In addition, Referee Hayes felt that prior Awards may have resulted in
discouraging good faith compliances with contractual provisions. While this Board
does not necessarily "chart new courses", it does feel that a full exploration of
the question is in order, and for reasons specified below, we are compelled to
conclude that damages should not be automatically foreclosed merely because
Claimants were "fully employed" at the time of a violation of Article IV.
Carrier :Member of the Board has raised the doctrine of "stare decisis"
as a basis for a denial of an award of damages in this case. The Referee, herein,
recognizes, and concurs with, that doctrine. Surely a predictability of Awards
advances the orderly disposition of labor disputes and lends itself to an identifiable uniformity by
Award Number 19899 Page 8
Docket Number i1W-19790
But, the Article IV Awards fail to distinguish those violations from
Scope Rule violations, nor do they offer any basis for different treatment.
Accordingly it is appropriate to consider all cases dealing with damage awards,
including those which are consistant with 15689 (Dorsey). In that light, surely,
as stated by Referee Cull in Award 18967, "The law is still unsettled
.·.."
We
Blonder then if, in fact, "stare decisis" is properly before us, and, if so, what
line of determinations constitutes the "weight of authority".
Carrier suggests that only cases dealing with Article IV should be
viewed in considering "stare decisis" in this dispute. While this Referee disagrees with that conten
As we view the doctrine, one must initially identify a "weight of
authority" in terms of "numbers of Awards" and/or years of consistent interpretation and application
precedents which first postulate and then maintain a consistent interpretation.
See Award 12240 (Coburn) citing Award 11788 (Dorsey).
There has been no postulation of a basis for denial of damages in these
cases, and certainly no "years" of consistent interpretation. We have cited
Article IV cases, decided by 14 Referees. Three Referees have granted damages
when "full employment" was demonstrated, and one of the three also awarded damage:
when the issue wasn't raised on the property (Awards 18792, 19635, 19426 and Pu'
lic Law Board 4249). Yet when one views the other Awards one cannot discern a
solid line of opposition. One Referee denied damages in one case, noting a
"reluctance" (Award 19574) but he granted damages in two Awards when "full employment" was not raise
Another Referee denied damages in Awards 18733, but warned that the
question of damages should be determined on a case-by-case basis. Other Referees
noted "conflicting authorities" (18687); found the question "difficult" (19056);
found the law "unsettled" (18967), etc. Three Referees who failed to grant damagt
claims in certain cases, did so when "overtime" or "job abolishment" was in issue
(19155, 19619 and 19631). Under these circumstances, this Board does not conclud4
that its Award is precluded by the doctrine of "stare decisis."
After a thorough consideration of the various Awards, the Board continually returns to, and find
States Court of Appeals, Fourth Circuit, in Brotherhood of Railroad Signalmen of
America v. Southern Railway Company 380 F 2d 59 : 55
CCH
Labor Cases 11,941
(May 1, 1967); rehearing denied (June 9, 1967) 55
CCH
Labor Cases 12,302; cart
denied (November 13, 1967) 56
CCH
Labor cases 12,272.
In the case, the Court of Appeals considered a lower Court's refusal
enforce a National Railroad Adjustment Board award of damages; which refusal w.
grounded upon "full employment" at all relevant times. In reversing and remandir
the Fourth Circuit stated:
Award Number 19899 Page 9
Docket Number MW-19790
"This approach, however, completely ignores the loss of
opportunities for earnings resulting from the contracting out of work allocated by agreement to Brot
members - a deprivation amounting to a tangible loss
of work and pay for which the Board is not precluded
from granting compensation. Nothing in the record establishes the unavailability of signalmen to per
contracted out by the railroad. The vast number of factual
possibilities which arise in the field of labor relations,
and which must be considered by the Board in cases of this kind,
clearly reflects the wisdom of the Gunther Rule (Gunther v.
San Diego and Arizona Eastern Railroad, 382 US 257 (1965)
"Yet, if, whenever no direct lay-off of a union's members is
involved, the employer can unilaterally contract out work that
has been allocated by agreement to the union, under no greater
threat than liability for merely nominal damages, the collective
agreement would soon become a worthless scrap of paper. It requires but slight insight into the real
to realize that neither party would feel bound to abide by an
agreement that will not be effectively enforced in the courts."
We are not congnizant of any basic reason why the rationale of the
Fourth Circuit should be adopted and adhered to by Referees in one line of
cases, but ignored in cases dealing with demonstrated violations of Ar
ticle IV of the National Agreement, nor have the Article IV cases suggested
any cogent reason for such a distinction.
Article IV of the National Agreement results from the free collective
bargaining process. While it does not compel either party to agree, it does
require a Carrier to notify the Organization of plans to contract out work within
the scope of the applicable agreement. Thereafter, if requested, a meeting shall
be held and a good faith attempt made to reach an understanding concerning the
contracting out. _.
We have difficulty in hypothicating many instances more imperative to
loss of opportunities than a proposed contracting out of bargaining unit work -
which may well result in a severe deprivation amounting to a substantial tangible
loss of work and pay. Article IV is mandatory in concept. We wonder then if,
as noted by the Fourth Circuit it may become a "worthless scrap of paper" if it
Award Number 19899 Page 10
Docket Number Mw-19790
may be unilaterally ignored. Accordingly, we favor the rationale of the Fourth
Circuit as properly applied to violations of Article IV. For these stated reason
the Board holds that a claim for damages may be sustained for a violation of Article IV of the 1968
fully employed at all relevant times. This result does not compel Carrier to
agree to anything or to do anything other than what it previously agreed to i.e.
give notice and bargain in good faith. While it is urged by Carrier that damages
may be speculative, it is Carrier itself, by its failure to comply with its agree
ment, who places the matter in that posture - not the employees.
The Board has considered, but rejected, the approach to damages in
Public Law Board #249 - Docket ;#16 and Award 19635 (one of which speak of damage:
in terms of one-half
(k)
of the claim and the other, one-half (~) of the amount
paid to the outside contractor) for two reasons. Initially, neither Award states
a basis for its one-half (~) concept and secondly, it seems that a damage award
should deal more specifically with the detailed loss of opportunity in question.
Similarly, we reject the results of Award 18792 which dealt with payments "in
futuro". While that concept may have had a particular reference to the facts
there under consideration, as a general proposition, it could easily lead to
numerous unforseen speculations as applied to individual cases.
Rather, we feel, the Board should award damages, in each individual
case, in direct relationship to the loss of job opportunity - and a tangible loss
of pay - notwithstanding a "full employment" situation.
This is not to say that the Board should entertain speculative claims
which are not advanced and/or developed on the property. In the instant dispute,
the claim is far from speculative. In its initial protest to the Carrier, the
Organization described in detail the work which was contracted out, identified
the geographic area of the work and specified 13 dates, in December of 1970 when
the contracted out work was performed, including hours and minutes on the days
in question. Further, it stated the identity of the employee who was qualified
and available to perform the work and specified a dollar amount of the claim,
which was reasonably related to his straight time hours for the 30.7 hours of
contracted out work.
i
Award Number 19899 Page 11
Docket Number MW-19790
In its initial reply, the Carrier did not dispute the contracting out
(although there was some discussion as to which individual or agency did the
disputed work), but stated that the individual for whom the claim was made had
not been affected and he had "lost no time" as a result of the contracting out.
In its appeal, the Organization replied directly to the Carrier's
"loss of time" statement and specifically stated that the use of unauthorized
employees caused a "loss of job opportunities" for Claimant and cited decisions
of this Board concerning that question.
For reasons specified above, the Board is of the view that the Claimant
shall receive 30.7 hours of pay at his straight time rate.
The Board does not award interest in this case.
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.
A W A R D
Claim (1) is denied for reasons stated in the Opinion of the Board.
Claim (2) is sustained.
Claim (3) is sustained.
Claim (4) is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~ ' . ~R~GC~LQ
.
Executive Secretary
Dated at Chicago, Illinois, this 8th day of August 1973.
x`-'''aF.'fi -- - ' -
DISSENT OF CARRIER MEMBERS
m0
AWARD N0.
19399, DOCRrI' ~-t`f1-19790,
(1,E
FrREE
slr.~..~a
It has often been stated that "No at-:-ard is stronger than
the reasoning and authority behind it." (Awards
4516, 4770, 6303
among others). On this basis alone Ao:ard No.
19899
is a nullity.
It is not supported by the record, by the Agreement or precedent
awards of the Division. By reason of its author abandoning lc~gie,
the award is replete with contradictions, inconsistencies, and
ipsedixitism.
The record in the dispute contained no probative proof by
the Petitioner that the work in question has boa-. performed by
employes covered by the Agreement to the exclusion of all others on
a system-uz de basis. Therefore, there -was no violation of the Scope
Rule of the Agreement and the Referee correctly denied Part (1) of
the claim.
The Referee has, however, entirely misconstrued Article IV
of the 1·,.,y
17, 1968
Agreement, which is quoted in the Award. '1"he
Concurring Opinion of the Carrier Members to Award No.
18773,
setting
out the purpose and intent of that Article is by reference irco:-porated
herein. There is nothing in Article IV that restricts in any manner
the right of the Carrier to contract out we&.. To construe that
A:ticle as the Referee here does completely ignores the responsibility
of the Board to apply the followi:Z clear provision thereof:
"Nothing in this Article IV shall affect the existing
rights ox" either party in comiection with contracting
out. Its purpose is to require the carrier to give
advance notice and, if requested, to meet with the General
Chairman.or his representative to discuss and if possible
reach an understanding in connection therewqizh."
Furthermore, in its submission to this Board the Petitioner
clearly set forth the intent of Article IV as follows:
"The essence of Article IV is in the opportunity it
affords the employes to attempt to persuade the
Carrier to assign to them work that it had tentatively
decided to ci~.ntract to outside forces. It is that
opportunity uhich Article IV guarantees and which, in
this instance was denied."
Thus the Petitioner itself did not contend that Article IV
conferred any work rights. In Award No.
19056,
the.Board held:
"The question of damages is difficult. The Carrier's
violation deprived the Organization of the right to
bargain. Whether the bargaining would have had the
result of obtaining the work for the claimants is
pure speculation. Awards
18305
(Dugan),
18306
(Dugan),
18687
(Rimer),
18773
(Edgett),
18714
(Devine), and
18716
(Devine), found violations identical to that
found herein but awarded no damages in the absence
of a finding of pecuniary loss. Award
18792
(Rosenbloom) damages should be but deferred them
until some future time when actual earnings loss
could be shown"
In Award
19626
the Board held:
"This Board finds that nothing in Article IV changes
the right of the parties to sub-contract out."
The present referee has gone to great lengths to discuss the
loss of work opportunity rationale when no monetary loss was shown.
Without.concediag_the-propriety of such -a proposition in interpreting
Agreements that do not provide for payment under such circumstances,
it is axiomatic that before such a doctrine can have any possible
application, the employes must first prove a right to the work complained
of. The previous awards of the Division, cited by the Referee on Page
3
of the Award
(15689
and others) all found a violation of scope roles or
other specific rights to work rules. This was also the situation in the
case involved in the United States Court of Appeals, Fourth Circuit,
in Brotherhood of Railroad Signalmen of America vs. Southern Railwa
Company,
3~0
F 2nd
59.
It is unfortunate that the Referee's interest in the decisions
of the Federal courts concerning the allowance of damages to railway
employees did not lead him to a review of the latest significant decision.
In Bangor and Aroostook Railroad Company, et al. v. Brotherhood of
Locomotive Firemen and Enginemen, 1 3~ U.S. app. D. C.
90, 99,
the United
States Court of Appeals for the District of Columbia held that railway
employees whb could not have done the work involved in the claim because
they were fully employed at the time the work had to be done could not
be allowed a penalty, and they were not entitled to any damages because
the persons who actually lost and were damaged were the people who would
have been hired, an indeterminable class.
- 2 - DISSENT
OF CARRIER M4BERS TO
- AWARD
19899 DOCKET M41-19790-
In the present disru±e, ho,_~ever, the Referee finc'.s no
violation of the Scope Psle by his denial of Part (1) of the claim.
and hirbes the entire :::-se on al l_~t;ed violation, of Article ?V.
Tlle prior awards of the Division invclv:ng Article TV does
(the
r~"~.fPTee says 33, decided by fourteen referees,i which ~tre cit--~U
in '.Vmni
19°99,
ail spew for thfarselves with regard to allowing
Icon°t^~ry dama;e^s where
n0
loss was
sho,s71.
Thenty-.six deried damages
A:~n
no loss was shoran end the issue was raised on the property.
Three allowed damages -.;here the loss issue was not raised on the
property, on the proposition that issues not raised on the property
may not be considered by the Board. One allowed half pay, and two
allowed overtime when the claimants were off duty and thus suffered
a loss. With such a show9.n, the doctrine of stare decisis is clearly
applicable. While the referee recognizes and says that he concurs
;with that doctrine he then immediately discards it and proceeds to
attempt to pick apart the prior awards, in some instances by mi.srepresentation and in other cases b
awards out of context.
His reference to the first award dealing with Article IV
(18305
- Dugan) is a classical example of misrepresentation. He
states that in that award:
The Referee mercy seemed to adhere
to the line of canes 1;nich toad previously denied
damages in any 'fall employment' situation, and
in essence, lie preferred the line of decisions
which ran contrary to award
15589,
cited above."
This statement is practically a verbatum recital of the
argument the Labor Mc:-ber has made to Referees in every Article IV
case subsequent to Award
18305.
The capable Referees have all
rejected it because it is obvious speculation. It is speculation
as to what was in Referee Dugan's mind. A careful reading of that
Award 18305 will disclose that it says nothing whatever about 'full
employment'. The award contains only one finding that has any
tendency to show why the claimants ther-ein sustained no loss, and
that is the
finding that
the ieork was not reserved exclusively to
them by their agreement with the carrier. Clearly, to say that
Award
18305
denies damages on any ground other than the mere fact
that the involved work was nut exclusively reserved to the clai-nants
by their agreement is simply to add som^thing to the award that does
not appear therein.
- 3 - D
ISST·^NIT OF CARRIER MEMERS T(
AWARD
1_9899,
DOCKET hr·4-1791
As a,~ °_aa:r7.^-.ri t-= ic:::r::_
:e _ _. . ~c
qaote.:.:1:.
:ientencp end 'y'art of
_l:J''.n"r
f=or:: Ai:~='·j. I'1:::7r'(ie_t:r°_e C'ial).
.i.t
1S
Un't7~t`:!'ite
..1-_''.v
he
(1.1l
not :x^te, Or
v
-at.
1"110-6
read
that
hOYt4- i~° 'he Alvaf d
-hc1:.1n 1.
t .-~..
:_- Ld
1'm; .- t ..
i.:i. i::
1'f le9 11 _ T~C'T. _ _ . _.. _ . _ 1:2:13
T1
8c.
for
r
Of ear^iitr.-
t;2' uC::S
,.aE'
..'.,a:.~'
:eri:.ir,11
On i t
hiv
agreer,ent.
~'J`ILGi1Sl;;', !:-;).
'',.}ii' use of such
Out
s:i]c f!irccs
:ie_7%1ted
is 1·~:,5 '?..1 a:·:ard of bac,; pay
to co:epensate fof the loss
;,could
be :nyde. In
this
connection the contract pre:-ides undo::' Rule
34(d)
that employecs disc'n^rged in ·.^_' elation Of the agree
ment x:11 be 'reim:`;._ sed for ,. loss of cc:npensn.ticn' .
If back pay v:aa _:ae.rded i_er^insuch a person therefore
would be treat=d differently than the claimants :;ho
suffered no loss of pay.
"ThrLre is building a rrespectCole bc:ly cf law and
axerds dea.irg c.,i-th 1:>;t ~;pO_'tunitie:; for e.:;ploy
ment. The law is still ui:settleQ, however. The
historic role of this Board f:as been to resolve
disp?ites axisina out of t-greer^Fnts: There is
?-:^r_.~;_.·`~
in the Mg--!:ent - :c
.
__..^' pny
of the
noneta~· claims ei'hcr as to Claim (?~) and
(3).
;
Acc,~T:?
::_n:;t,
they rill be denied. (A;:=ard
18305
and
others
).The Re-'eree liker:i.se chose to quote two 'sentences of ":ward
19O5o
(Fra.nden), omittir_g cnti-'e1y the reasoning of the Referee in that
case t1-:r-t "·,.Ilether the bargairing would have had the result of obtaining
the work for the claimants is pure sp eculation".
As stated by Referee Garrison in Memorandum to accompany
early Award 15&), which is frequently relied upon by Petitioners in
attempting to persuade referees to follow prior awards:
"In the case of this Beard the composition of the
referees is not stable; one goes and another comes.
If referee A reverses referee B upon the same set of
facts, the same rtie, and the so-me precented data, he
is simply substituting his orm personal. judgment for
that of B. If he ;foes so, the i=dentical question,
- 4 - DISSr,"~liT 0F Ch-TR%ER '.T:·iBRT,S '
. A
!MRD 19309,
_OcYTET i1-7-197a
"arising bet;·een other parties, will inevitably
be presented to referee C, who will then have to
choose between the opinions of B and A. His chci.ce
:.:ill not dete:mi.ne the ratter, for the q_n~sticn will
"lair. cc~:nc
itp
before D, and t:~i:s ',;::e rn~_t;ter m.^_y
never epi.
And i:. .sward 4jG9 (°T·hiting) it was held:
"One of the basic purposes for which this Board was
established was to secure uniformi.-'ty of interpretation of the rules governing the relationships o
Carriers and the Organizations of Employes. To now
add further fuel to the pre-existing conflict in our
decisions upon this Subject would only invite further
litigation upon the subject and would be contrary to
one of the basic reasons for the existence of this
Board."
The Referee herein has ignored these basic principles and
rendered -n Award that is a maverick in itself, not supported by the
record, by the rules involved, or precedent Trards of the Divisions.
T.'n
-,.E ~.n.~,^_~jnnt
1_i",._,.t 1t
57111
not b'e followed
n..-,
teit re~
f -
:. . 1`.:y
c ~,ee_er ~ ,c~ ,
but uut of as abundance of precaution we must register our most
vi~crous dissent there ;e.
._ a
!-~
' Yc W
~~
W
T'c·. i ~~ f: E · c
·~'Z``y
- 5 - DISSENT
OF CAR
:IER PZ.iBFRS TO
- AWARD 19299, roC= r5r-19790