DOCI,rT ;10. 141 --- Dccision by .."efers^ Eernstein
American Railway Supervisors Association )
American Train Dispatchers' Association )
Brotherhood of Locomotive Engineers )
Brotherhood of Locomotive Firemen & En.inemen )
Brotlier~ood of :La inrenance of Spay EMDloyea )
Brotherhood of railroad S?gnalr-en )
Brotherhood of Railway and Steamship Clerks, )
Frei,ht Handlers, Express and Station Employees
)
Brotherhood 1
1ail"jay Carmen of America
Brother~ood of Sleeping Car Porters )
International Association of `iachinists )
International 3-ot1·erhccd of Boilerm_:;ers, iron ) Parties to the Dispute
Ship Builders, B1acl:s-iths, Forgers and Helpers )
International Broth erhocd of Electrical Workers )
International Brotherhood of Firemen and Oiler; )
Railroad Yarj'xasters of America )
Sheet'1:etal Workers' Into-nacional Association )
Switchmen'; Union of North America )
Transportation Communication Employees Union )
,n~ and
Southern Railway .System.. and )
Central of Georgia Railway Company )
QUESTION:
"(1) Whether the various arrangements described in the 'Statement of Facts'
set forth below constitute 'coordinations' with in the manning of Section 2(a) of
the Agreement of "lay, 1936, Washington, D.C.?
"(2) If the answer to Question No. 1 is in the affirmative, are the carriers
involved excused from complying with the terms of the Agreement of May, 1936, kashington, D. C., by-reason of the action taken by the Interstate Commerce Commission
in Finance Dock*t \o. 21400, 317 ICC 557, in which it imposed certain conditions
for the protection of employees?
"(3) If the answer to Question No. 2 is in the negative, may the carriers involved place the said coordinations into effect prior to the tire agree-ants comprehended by Sections & and 5 of tl:e Washington Agreemant have been reached following the posting of ninety (90) day notices and the holding of conferences as prescribed in Sectian 4 and 5 of the Washington Agreement?"
FI;;DI\GS
In late 1962 the Interstate Co--·e roe Cc-.mission approved the Southern Rail::.=y
System's acquisition of control of the Central Georgia Railway (and a subsidiary,
Savannah and
Atlanta
i.ail~jay Comp ~ny! by purc'aase of Central 's stock. Finance Docket No. 21:.00, 317 ICC 557. AlthcuLh that cider ..as to be effective in jaluary 196?,
- 222 -
the Southern did not act upon it but soujht rc-c,.7~si%era=ion ar:d clarification by
the Ce^mission of various aspect=_ of the conaitic1s i:r:cosed for the prececticn
of employees. After reccnsid_raticn, t-a Ccr:rissicn issued a further "report" in
which it grant%d so:a_ and deni-d ect;ers cf the So.,thern ; _=quests--none rertinent to this dispute. !hit order, datca !unc 10, 1963, was is_uad on June 14. On
June 17 the u~;olition of jobs which is ch: subjccc of the claims in this proceeding began.
The major questions presented are:
` " "
(1) Were the job changes cemplaincd cf tl:e resint o~ coerdi_na_tiors within
the m=aping of Section 2 of ch= t"ashin= _,. Agree7:ent? .
(2) De Section= 5(2)(f? and 5(11)) of t'nt· Interstate Con-erce Act, and the
employee protective conditions issued :ars,,ant to the ferr:er, extinguish the applicability of the Washington Agteet:ent, tc which bcrh Carriers are signatories,
so that (3) the Carriers war°_ relic-ve~ of their obli;atiens to give notice to the
Organizations of the intended ali==ed corrdin_ticn and t: negotiate imple!nentina
agree-eats before the coordinations could be put into effect?
The Carriers appeared sp=ecially b-fDre t'-~e Committee and the Referee solely
to contest the Coc:.Mittee's vjrisdicti=n. Initially c`ey made no factual
presenta
tion otber than that relating to vaxicus star=s of the ICC and At 'the
Refe's invitaticn tn rn cuttsr - ~at; apn t,i
e
ree the Southern co.-_.. .~at ;cl.s
'1
related c;s~ e_
direct=d to the Cc.l,ittae s iurisdictier? as a n_:ter of law and the propriety of
the remedies contained _.. _.._ proposed opinion and decisizn; at my request, it is
also com^ented upon some factual issues. A- n= tine did the Carriers abandon their
contention that the Cem;nictee lach:d iurisdtctien nor do I regard their acceptance
of my invitation as a sub-.fission to tl-.e Cc=itt__ s jurisdiction.
(a) The CIai-ed Cocrdin.-ticni - "Default ·ud,-c-nes" are alien to the arbitra-
tion process. As I noted earlier in tbis pr^cee_line, whether or not the adverse
party appears, the Claimant must make a factual slowing and demonstrate affirma
tively that it is entitled to the relic-` soug~:t. Innu:n:rable exhibits established
that most of the chano s in op~raticns protested sere were- the result of trans
ferring Central worIl. to Southern installations with the consequent abolition of the
Central jobs.--fhe proof is ccntained in exhibit after =exhibit reproducing the
Southern's and Central's own announcer=nt=_. So, for example, E-,plcvee Exhibit `1o.
3-d, a Southern-Central bulletin, declares tl-a:: "Effective today L1un°_ 17, 196
the yard and terminal ope:-=ticas
of
Central
of Georgia at Chattanooga, Tennessee,
are consolidated -ith those of Scuthzrn "ail~%ay an= will constitute one common 5en
. "consolidated"
iority district., Other exhibits ef Ii::= n.=tune also announce such operations or "transferred" work (e , Employee Exhibit ac. 3-0). A few notices
on the same date, or soon thereafter,.o-7,ic such explanations for the abolitions.
llo'.72ver, slven the' timing and abolitions
7r
Iir:e num:ers of lobs, xJ~ich apparently' -
had been necessary for Central`; eper:Lt-.cns up t.o that
:ices,
the inference is rea
sonably clear that in ell of the situati^ns alleged to he coordination (except chose
discc=scd in detail in the_ succcedinl- -:ass ees) the Central of Georgia work was
trans~cr:cd to ,.-d coordinated with
ti:^
Soct;~.crn`~
. A
pri.-e facie showing Was mate
and t':e S-autr:e,n eontes'_cd only t::~= _:ll:e.-ing specific instances:
- 221 -
1
At the March 1966 executive session of the Co-^,.itt_e, Carrier representa-
tives challcnted specific iteos
cc
alle~cd cccrdi-_ti=n, viz,, paragraphs num
bered (2), (7), (S), (9), (10), (11), and (12; of the Orzan:zacicn Subiss!on
at pages 6 and 7 and those described
it
Or~.avization Exhibits
3-x,
3-y, and 3-z,
but did not ad d:: ca prcef, the Organizations apparently tcck the po>iticn that
the challenge; ca^e too late to b-= entertained, T5s Southern reiterated ti-.esa
challenL,es in a letter to tre dated M_rch :0, T'.-.ereaftsr I inform=5 the parties
that I did not wish to dispose cf tl·e matter on proced-ril _ro~nds, i.e., either
that t^' specifo.-e too theL tile Organizations
h..e Carrier:ic chalh_nse=
..w^'~
late o.
had failed to adduce proof once the matters were pct i^ issue, hence in a series
of letters and teler'len= conve'=sations I rtq':este3 D=tll
sii-5
to submit statements
to enable me to ___ch a resolution of the ccnt2sccd claixs. I sue-ested a stipulated statement cf fact but chat did ecc M_carialzze, I also suested chat the
parties Tight agree to defer resolution of such c° ec:e c,~ntssccd
issues
as they
could agree upon last it beta^°_ necessary to h^ld a h=arias=; which I was reluctant
to do in the face of the many detands upon the tire of the parties in connection
with this case. The pr:rties were unable to agree. llcw-ver, I have found their
allegations, sta"t=m-znts, and arou7ents adc,uate for the decision of sane of the
items-in controversy, The Carriers also urgd that I not resclv_ any of the factual issues but confine.. myself t7 a dCtiiicn cr, t!'= question of jariidiction,
leaving the factual isS_~es (if the Cor.mitce?'s jurlsdiccion T:as sustained ~y the
courts) for a hearinsubsequent to a final court di=positive of that issue: But
I felt unable to do this, as I explain-ad, beca,.:se ~;among other things) in an earlier case brought by a carrier, I decided both the challe-ga to the Cormittee's
jurisdiction and the dispute as tell. l?ere the Orga^izacicns seen equally -=ntitied to a resolution of the major issues already before the Corn:ittee to the extent that they car, be resolved. As to the items in controversy I find:
Organization Exhi~-it3 :-.`:, 3-y· and 3-z,
Organization Exhioit 3-x is the Central of Georgia bulletin, dated January 21,
1964 (about six ,:,onths after most of thchang--.s :fIF=cted as part of the coordination), abolishing one Blacksmith, six Electricians, eight Macininist, five Sheet
Metal and seven Locomotive Supply, En;ine ;iasher and Laborci. pcsiticns at Central's
Columbus Georgia Shop. Exhibit 3-y, Central of 1zorgia bulletin, dated January 30,
1964, re-established six
of
the aboli.s~ed positions.
The evidence submitted shcws chat the positions abolished performed the per
iodic locomotive inspections req·lired by the !CC and 1131ht and hea"y running re
pairs on locomotives, after the January 21, 196= abollticns and the January 30
partial restoration inspection work no lo-,22r
c;.;
performed at tie shop, except
for a few s,aitc;i en.~inas; a^.d the rcp.a:c ~aorl: consisted of light running repairs on
fewer loce.-,ocivas The Southern e:<pl.a:n= t':at this reduced activity results from
.,
the purchase o: now locomotives, thr_ retiree.^t of old cues and upgrading of
" 1 i h tit ^ 4°_
c
^^r
others. lento, it argues, no su s utio for t. services ~or. ly performed at
this shop was ncessary and that the .=diced force was adeq~ata to the slight
amount of repair wor:c still ,aquired. Ec:,1cy?c ~:ld~ncc indicat__ that this may
.
not wholly account _-. the c;.anZas .,.
.2rW_
__ti·ity ac Cc=__-=us J:,.acco·,..^.te3
for, hc~:cver, arc t'le mont;,ly, qu_.rtcriy, _::~: ann_-il; and annual locomotive inspect?Cn; ...ic': ..c
u'
accountec'. for 13 to 2^\..-.~p:ct:o-.> a -.-nt", at Col':-bus up to
mid-Jun-,, 19'·3 `Let no
>l1Cw:n,- t%i5
;:,~_~ th~.t t~,e J=,nuary 19J= ch;
t-Cs
involved
- 224
^
transferring Central inspection. c:::.. to £catr.ern f_cilities nor was an affirrative
showin,-,r
m.3c'C
t4at identifiable r':pai:
%:Cri:
cr iLcilitir: fcr!.'iCl'IIY loC~:tC3 at GCn-
_ Fr.
tTal1s Columbus ShCp was trait.,
.`YGn CC
SCII=::ern f?.C1 it1C?. On this record 1
find that the jobs listed in Exhibit ?-:: were nor abolished as ?art of a ccordinaticn.
Exhibit 3-z is Central of Gecr-.ia bulletin d:.ced January 21, 1954 furloughing
nineteen Car Department employees en;,--.fed in car repair ':orl:. The reccrd contains
ample proof that althoug'll, as the Carr,= _r; assert, car repair Work wls reduced by
sellins off many old cars, Central c: Gcorg_al:^^.ck
cr this cat.-,Tory remained to be
done and :was t!:crcaftcr performed =t Southern .`,.ci:icies. Hence, I find that tre'
furlou'.^.s cover=d by this bulletin acre
a
resale of coordination activity bet~:cen
the two Carriers.
Orpanizat!.cn A.11e,~
-,__cns i9) r1^land (11?.
The Southern argues that a great deal o: the Tain;::nance work involved in
these items was eliminated solely as a :matte- of eccnzrnzing on Central of
taGeorgia's
operaticn.s and that the job >be' l d to any consclidation of the
.iticas c:=re unrei::
two Carriers' activities. 3ut the 0r,,nn_z,,ticns allege that worl: performed by several hundred employees in the buildin-'s formerly rr:aintained by the Central of Georgia employees who lost their jobs l;o, tr.nsfer_-ed to
tae Southern in what must be
regarded as coordination ef the tz:'o Car:icr:1 acrivicins and, as a result, a lar=e
portion or the forccr miaintenance
4'Orl:-
_ivo:ved 1.:; tbCLa allegations bCC^me ui.n.eCessary. On the record made it is not plssible to rcsolve these issues Satisfactorily. The ~r~anir.?t:o: s ,.made a prim facie case which was chellenc-es by the Carrier
only after the regular Cot-.mittee procedure n.1d led to centativs finair.gs. Had the
matters been put in issue' on the property, ._ di.-'2cren r and more cc:.prehansi-e Organization showin-. might have been made. On the o_hcr 'and, once the Carrier cast
doubt upon so,-.a Of the allegations, a prt.pcr resclur=:)_n seems to require the submission of uncontested statements of fact or a full in;uiry. In several other cases
where factual issues arose during the c:nsiderari=n of the case, the parties submitted further infcr.atic^, either orally cr in writing or in sore combination, to
the Coccltcee and Peferec. Rco-·evcr, that prccndur_ has not worked in this case because the parti-s are in silstantial dis;5r·_cr,.=mitt over the facts. I have decided
that a hearing-att this juncture of the case -~:c·:ld ba undesirable.
The parties would bs unavailabls for a hearing for a considerable time; such
a hearing miaal't prove fr,_:itless if th. GCmmirreC's lurionicrion were not sustained;
and, it is common to' l_eave for further proc^=4in5s issues w;lich might be resolved
by the parties in the lig`it of t^e a ;',a-es resolved or
where
factual macters are involved.
Orc!anizatic-.
Alic_a~ticn
(L2,I-
The Orsanizarions 'rave not do^:,nstrate,' tl-~;t the a~)clicion of the. three Cooks,
jobs '.:as caused Sy
coordintion.
r
Ors,;.': -a_,:on_A_1_1=='i_--__ r7! ar
Ca
rrir_- -1-- -..
-,I
t -?-. - ~c~:.=r _-"___f :-ec=
tAlthouL;h at tl'c :_1rch
1D6h
^_e_:.'1;
i,=ccl-r t.J"~-ittCC f"Crnbers and tlI_:_aftcl'
th= Scutll,~rn
C-I1CCrldcd tl:.:-
th=S·.; ·oc='_irr,!nc=5 dl.G
.^.C'.
constitute cooc.'1.na_.._!S, .ts
later ar~u~=nt was chat th^_ cmployc_> cffccecd c<ere not n1·i=rsely affected and
thereby x-icre sot elin-ible for benefits- ..ts rnest recent cor,::'inications to me
give ,_nru7eraola e::a·mplns of indi';idu,~l; amen; t`cse nt'mad in Carrier bulletins,
whichcn their face _:;c~a t;:at the Centraai of Ce:rgi_ .fork involved was the subject of coordin2t.cn, vhc>e tomp~.nsut:.OR .,l2~=d)Y ~j;s not tI?ercby impaired.
These changes alone mn;cas ':vat a shet;in; of vi~'!aticr: cf Sections 4 and 5 of the
Washin3tcn APteo^-nt.
The Carrier contends that the Orcaniza':icns withteld irformaticn as to many
individunls involv_d
L.^.
the chall0'z,,d
;a='B C.hiC~
w,^.·51Q
SI'!O·.i
lack of entitlem_-t
to coc.~aa:;tion -Dc,causa thoir post -cooci,inacioa ec:npe-;_ticn cq:_a11ed or exce23ed the_r pr_-ce.·.'~_ns_atien ==rnings. Buc _hc 0_aniza:icns cannot prcper:y be
thus accused b_causc the issue of ina'_v:d_a' e..-.ti.tl_~·e^t -,.'as injected into =h=sse
proc2edin7=_ long after such an
its=:-2
usully lac_ld ;age baen raised in a Section
13 proceeding. '.ioreoo'er, in this indu=tr-, it is cemnon tc go to arbitraticn on
the principal issues in c=ntloversy _r.(1 t: 1=,-a'Ie the detailed application of the
rulings to later handling by the paxri._s. -rith reco._rse to further arbitracion if
the parties cannot a.ar=a on hew the _acistons ara to be applied.
In its latest ccmnunicatien> th_ Southarn object: to the decision (as it was
presented in draf_ form,'. on the grcund t'.^.-t _em:: c.` tee individuals in the other
situat.·'_ons nor contested by it as ccnscitutin,·. coordinations did not suffer compensation loss, or were di-schargad
:C?'
tao~e
b_forC
Or after the events in dis-ute,
or died Or res,_-~ncd tieleaiter or settlel& til,sir clairls
;1'.1·3
siEned releases, Before
this set Of contentions vas made, Dr-anization and Carcier Committee members agreed
that the issue ef tile effecciveness of rele_;es 1;as -sot =fore us. Nothing in the
decision directs c_m7·_nsatinn ;I.erc i: vouid rice
hal'r
been due in the absence of
the coordinatiors which bre~:Ched rfe ~3;.i^lnst(:n A%rcmcni. Disci2.:rise for cause or
total disability, for example, w.ou'd end rh= ri-!:t to rice ccnpensation. ltccoever,
some retina mcnts under the circumstances of the=_ cases tiny have begin less than
wholly voluntary. The parties ha,,2 arple c,.>ns to r-=solve any s·-cb dispute; that
they canner settle by r,egociarion
it
-accordance with the practice in this industry
and the procedures
established
under ·.l:is A.~reem,2nt. Tnerefor=_, it is not necessary to decide these Seuchern cenrcrtions ac --his stage of the dispute. A11 or
many of tl·cm may ;cash out by agreenc;;t o..~c.2 the mzzjor issues are settled; if not,
this Committee =n pas= upon them wren t~ev are ---=rented in t'.-e regular fashion.
Except for the situations described in G'._,lc·,ce Exhibit :-x, and icons (2),
(9), (10), (11) and (12), all of the alls-_d coordination= are hsld to be coordi
nations t?ithin tha mcaninof S-:ctircn
-4
o:
01,2
A,7ree.mcnt. The question
then arises whether the Agreerent i; npplicable.
- 226 -
(b) The aro 1~ cu h? 1! ~.;f=~-c
._ 7 ~_,~i-_~.,-,~.-.°=e_-^=r._t _
Acting under Section 5(2) of the I; :c _-s ·_ace C-~. _: c.: Act,l./ tle ICC approved the
Southern s acquisition of control ,._ Cencrai c-: cc-.dic:on cnat certain
employee
protective conditions, in substance :hc ';cw Orle:,ni CGnditit-.s, be afforded af
fected eaployaes. These conditions apply t!;e ''0.:1_c:;:a Conditionsa which although
patterned « tee =he ~dashington Pore=pent, diffcr from it in several major respects
- the guarantee to emplcyces deprivaa of c,mp:oy---_nc is IGO% of test poriod aver
age earnings rather than 50'; and tL,o ~.!axin.um duration of protection is four years
rather thar. five - and a few minor cn'_s; morco;c-r, where the IJashington ngreamen~
would yield core "compensation," _n e.-plcyte is entitled to receive it. This pat
tern derives fro... tl:e \e Orleans L-~
_'.;~=__
_ Term_nal C:s_=_ 282 ICC 2'1. In
its first decision in that case ·,257 !CC 76?; the cc-4_ission imposed prct_ctive
conditions uhich would ha-,,e expired four years fram the eff2ct:v: date cf its order;
interpreting Section 5(2)")
.i5
1mpesing such C`:ritl':n as a maximum. Ho-'_,ar, the
construction
of
the terminal ·..a.; to
~a~:C ^c3t
ef that peri'Jd, thereby rendering the
"protection" practically mcaninglcss. Il,e Suprc7e Court held that the four year
period specified in Secrion (5,51 ,21 ~ _ nc_. (f) w;,
,. _ a
ma::i.-um b_t a minimun and renand
ed the case to the Commission. In cu-n tl- Com-issicn ;died the
Washington
Agree
ment-compensation terms to chose of c~: Cklarc-'.a Conciticns so as to extend the
protection for a loner period. So: ;4hen the
Ccr7imissicn
has imposed the N,,=a Orleans
CUnditior,3 up to the tin°_ of this cafe it has included ,`1:E !)ashinCC7n Agreerrent
specifically, making express rj:ncion, hc:jever, of only #he !monetary protections.
At issue is whether the non-mtnetary procedural aspects of the Washington Agreement must be observed wlIen railroads affect coordinations after their ccrpcrate affiliation is authorized by tt:e IC'_ and the Co:-missi^,n arescribas conditions for the
protection of employees .Section 4 of t~,~ 'l?shington A,ar?9 -,n;lt reqUlres
adrdn.C2
notice of an intended coordination and Section 5 of the Azrc^emcnt req:iires an agreement ben.een carrier and union befcrcc a cccrdinstion may be put into effect. Dockets
Numbered 70 aed 57.
1/ It provides:
As a condition cf its approval,
under this
paragraph (2) of any transac-
tion involving
a
carrier or carriets by railroad s"bjecc to the prevision=_ of
this pare the Corc:nission shall requi-c a f~.ir and _quicable arrangement to
protect the interests of ttc railroad c-nloyaea affected. In its order of ap
proval the Cormissicn shall include terns ant: cenditicns providing during the
period of four.years from the effective date of such order such transaction
will not result in e^ployees
o.
the carrier or carriers by railroad affected
by such order being in a woes;: position c;ith respect to their e^.pioy:ent, ex
cept that the protection afforded to any c7ployee pursuant to this sentence
shall not be required to continue for a longer period, following the effective
date of such order, than the period dur_n:; wnict. such e^pioyce we= _ in the
ac or car___.
:,em
ploy o spr
t, r_
effpcti,~e date of suc'n order.
~ .. ..a..__.
__., ___ .._ _
t~
Non7ithstnndingY'ny'other pr on:is ions,
of
t',is chapter and chapters 3 and 12
0'
this title, an a3rec-=nt pertaininZ to tvo pratccticn of the interosci oz.
employees :-,y ^=rca_ter bc e::~crod into ,y
dry
carrier or carriers by railro_=
and the culy authorized reprcsc:·catiro or raprescntativcs of its or their em
ployees. '
- 227
°1
The I7nshinSton Agree'tcnt case into being in May 1.936; Section 5(2;)(f) dates
from 01epte!n'_cr 1940. The history and purpose of each -=:t be understood in order
to determine their interr=is tier-.
As noted in Docket :.o. 106, in the railroad ind·Jitry the recoaniticn a^d Scope
provisions of rules a3reemcnts con-.only are re.-ardnd as defining jurisdiction and
Job "owr,e-zhip" which prohibit. the transfer of t·crk from employees under one agree
ment to cm,loyces - even in to sa-a craft - under another rules agreement. As a
result, combinin.- the cork of employees cf t-c carriers or shifting wcr' from the
employees of one carrier to those of another, the most common means of effectuating
coordinations, could net be arc^-.plashed ~.:itheut incurrin;; penalty payments to those
employees w: :o lost the work. As the savings to be ac'nicvei by reducing e-.ploy-.ant
by the co.^b inatloR
end
rationali?atiCP of war: Cf tt,%-^,
or
more carriers is a major
purpose cf railroad ,-..erg::rs and acquisitions, a r.:eaas to overcc-_ the barrier impose,.
by the rules aSrcame^ts was
necessary.
'Ire S7ashin,7tcn Agr.oe:-2e:serves t·,at purpose
- it permits such combinations and transfers of work under specified conditions -
including notices ef intended cc ordination, negctiat=d implementing arranzements,
guarantees for e:;.plcyces whose carninv.5 or are adversely affected and
other-benefits. The Agreement - althougt: concluded under tl:a threat of legislation
unwelcom= to both railroad mamacmenc and or=anized la=·cr - was a voluntary private
collective agreement entered into by the major railroad; and railroad labor or;ani
zations to enable the carriers to achieve mergers and to cushion their impact upon
employees. Since 1936 many railroads have arced-_d to ch- Agreement so that its scope
among carriers note is almost universal, nltho.:oh some few unions representing rail
road employees are not signatories.
Section 5(2)(fi, enacted in 1940, directs the Tnterstate Ccmmerce Commis_ion to
impose conditions for the protection of employees in :merger and other cases. In
intent and practice these conditions are ouch like those of rage Uashincton Agreement
The labor oroanizaticns declared at the re,;rinss cn ch-= measure that trey so::ght to
achieve similar employee protections en railroads whir'.^. t^an did not subscribe to th:
Washington Aoreer-:=nt. Other provisions ,._ the 19= Act relieved the carriers of the
threat of mandatory mergers hanging over their ?:ends from earlier Transportation
Acts. In the pericd preceding enactment in 19:p
there was
no recalcitrance by railroad labor croanizatiens which arSua:ly req,~ired a^.y limitaticn upon their rules
agreements and tale job ownership they often were taken to imply; no one contended
that the ;?ashij;&ton .agreement was inad2qL.-2 to its tasks. Vcthing in the 1.oi-ldtive history of Sections 5(2j(f) or 5(il) was presented which e::en remct:ly chews
an intention by Congress, or anyone °l:e, to abrogate the rules arrangements, ineluding tr~eir merger--barring effect and the l'aar.in,ton Agre°scnt's machinery for
overcoming them. Indeed, as noted hel:~:, the legisla-ion ;pec_fically recognizes
the desirability and validity of such privet= arrange:::'1ts.
Quite clearly Section 5(11) operates to relieve carriers in-rolved in a mar.ger
approved by the ICC of any requir=:'7=-r.t f~,: State agency approval, the antitrust la::and other '=dcr-al, State or m'1licipal
11`.7
L1tF-o.i^ii t1:e claim 1- made that this
section -c.ac~es so far as to ev~=rco^_ crc%iii :.s
--
= of tr.e Rai1,a;v L-alAct as arpli=
to the 17as~1n-t0^. A~rce^ent, th^_ co.^.,'^_::t
and
pattern -i th° Section su_~°-St ot:lerwrse. All of tn·= .·=fercncei are to
CJ!r:l::t_,
7nticr'Jsr and State and local _e.,Ul='
tory lea; - there ii ::o hilt
t1n1:
l,-7·JJY-...l~l~e..~.n:
rtl,'-riJ.^.i
;:re 1~1'O1:'e~. ~·Jt1.7i
in the 1CS:511tivet.i~t~r'J was b,oc^,1-t
'Gr-..
_rd to _'U-.C-'it .that a ~·holeial= c'an~- _-.
_ 223
_.
the pros=dares of tile Railway L;bor- Act for cccifyin_ rules agrccsents - assuredly
a fundar.-_ntal and .r=crtan= chnn;,o - was intended. Any such c:dcavor would have
meant a major leZisiative battle on the pine; b,.t .-,_ such thi.^.g occurred. It
staggers the imagination that so radical a chan~c ..as in fact r·.eant and mad-- without anyone noticing at the time. - ::or was such an effect necessary as to mergers beca-_:e the ?:ashin.,ton !.greemcnt provided the macnanism to accomplish them.
(The Karrington ~~mend::;ent was an unsuccessful -ttcmpt to get mote than the Agreement Znvc e,-.,p1oyccs; its rejection by Ccn-res> does net r:r_an that where their
national .a-ree:nent applied they were to get kss,) A; noted many years ago by
Referee G,:Jden in the opinion in Docket 2'·c. 27:
The Transportation Act
of
194C, of
;.-rich
Section 5(2)(f) of the interstate Cor·_-.,erce Act is a part, was cne::.;d -ir_h f_11 i;ncwledgc and thorough
familiarity with the tea^s of the '.!a s:n=lgtcn ,%,,reemant. -here is no discerr·,ib.c manifestation of any Ccare>;ioa1: design to a,7:asculace it entirely
or otherwise to th:7art or sub;ue its rccency. Actuaily, its legislative
history reveals an affirmative willin=.rtes= b;: Congress to permit the protective features embodied in the T'ashinlton e;?recrnent to continue unimpaired
-alonPide of those i7~posed by the statute ;n the Interstate Commerce Commission . . . .
Implicit in the proneuncecenc made tc Section 5(2)(f' to the effect
that, notwithstanding the relief L.ffcz"-d in that pr:vision and certain
other sections, the Carriers and the a,;thorizcd represen·atives of their
employees could, ne\'°r thel~_ss, t', ereafter enter into contractual arrangements for the protection of employee in rer·_sts adversely affected by Carrier transactions, ie the recocni=i.-i that ai'_ I-xisting prior understandings, arrived at by the saes print?pals.
denti=ng
with ch= identical subject, and similarly designed t^ serve the vsry ;am°_ eutpose, are also
sanctioned.
In that case the Carriers arbued that Section 5i2)(f) vitiated the Washington
Agreement. The Referee rejected the contention, also noting that Carriers had not
given any indication of withdrawing from th-e Washington Agreement.
In Docket `:n. 61 I rejected a si-:.ilar contention by the Organization that an
outstanding Cew.:ission order imposing the N.w Orleans conditions (which included
the arbitration provisions of th?
O::la~,cn1
Conditions;, issued pursuant to Section
5(2)(f), preclud=d application of the Wa;hinzton Agreeccnt's procedure. I noted
that the earlier ruling was made in chc fa~.c of IN coniitions much like the Oklahoma Conditions. The differences bet·:e_.n those arbitration previsions and those
in the ICC order in the Southern -C=ntral cass provide no reason for a different
conclusion here, '
2/ Note 2 '-n nrotherhcod of L.c.cc^ori-~= Engir:sars
v.
Chica=o and ;",:d. Ry.Co
(CAS, 1963) 314 F.2d 420, 432 is not
persuasive
on this point. Such compari
sons may b°_ indicative but are hardly disucsiti-e of Congressional intent.
- 229 -
Carriers also ar"ed that-C~;'=t
;v^,
6~ Qifiers f<cr,- tr_9 vas? bCc='J=a in
the for.-.,_r
t'C
~'C't.·iSS~Cn
??:~L_SSl',' i~.'i:J.'^_6 C."!C
N°-W
Grle)V,5 Conditicn5 which
import the W7i!lir'3ton ACG:°eC·.;n::. Dc:kat
.1c.
27 =~,b' r,
ii nCt
1:C_
tC such
d
d15-
tinc'ticr.. In L'oc?:·ct No. 6=· ::-.e Capri°_r _. g,:sc that arplic:t~ility of the W.;sh
inFcon f,-_-e^__r.=nc
'_.:a:
under the auc..`:o·.1.t5· ef Dcclccc :;=.
=7
;deci;:ing tl.ar Section
5(2)(f) and the A3:_:.^ent cce::is:) and fat ti.,c ICC-.T~pos.3 c=d_ti:ns included
the :1sshin.,ton :.=rc-me at, 2i:: decision =:a; base.. uacn the former ground.
The
interplay
cf the WishJ7,7-on anti
understood.
T::e :.C_-c<<cent ,;_.s desi;,ncc t: feci1itr.t.^. -.--_er;,
consolidations,
and t..re iika but on 3eateo :cnditior5 ~.^_.'.L·;= implnme-Lng aorica'C'nt, benefits
to t`iosc
advcxsrrly
rffccted;' The i',ail:..~y La^cr
Acl-
prc·isnts either carriers or
unions f7Jm naki nS Cnilat·eral Chin=e5 in t'`:Ci= e~Tc_a
pr:~%·i~C?li~
the AorCCment
also has limic; upon the ternin_tion of its appiice.bil_ty, !?cncc wacn a ,:,=rger
etc. is ondorta;<.en b=fcrc the rc;uirad atop: t: er.d the Agreement are ta;;en this
Agree,7cnc binds _h: union to ^ernit th°_ job ccnbinatioas required by the merger
and requires the ccrriers invcl'.·ad to `_lio;; its pr ;c^d,:rea and accord its benefits: the recoo;icien given t.hc ;aaseinz:to., ^.r.Lee.-_;:c in tho last sentenc= of
Section 5(2)(fj in~:icat:s ;hat Conare>5 _-,ardcd such a private contractual arrangement a5 narm.o^ious %ith the ICCad ~%iti: S_c
,_cnpow-r
t0
Impose ?t!olcy:e protective cc ndi
tions-
a '"
read recos^ition and
. That provi;ion shoul., _~ t,7_cn 5-~.11) . ..
enceura-e^-;nc ti?zreby accor~cj the :,=roe-enr_argL'.e=- t'-_ it is not overridden
by Section 5(21!f) nor is the prcteccicn accorded to the Agrr-emant by Section. 6
of the Rail«ay Labor Act vitiated.
After the Section 13 Col~.rittce'5 hCC'rin=-
and cxzcuI:i',3 sessions tree Sbu'h?rn
submitted a namorandum citing. :or the first tics,
sj
_ut!-.o:iri;s which arguably
would lead cc a different conclusion- 4:hile 13ng·..=; in all c° them indicates the
broad scope of Section 5!,11), the differ= cent~x=sand :5sues of the cited cases
and this set of cases lnvclvin.- the ScUCh-;rn and f~,ntrai cf reortia must b? taken
into account Te::as .. United State=, ?°2 U.S, 52), 533-34 (1^314) acd Schwabacher
v. United Scates, 3?s U.S. 182. 200, 201 (19:.') arc hardly cppcsit°_. Kent v. CAB,
(2d Cir. 1953) 20=. F2d 263, is put for',.r;ra for the prcpc>iticn tLat fe6cral. agency
power in carri_r merger cases extends to ova:rid_n= private collective a-°_es:encs.
The court there dc-alt with the CAB's nz~-zcr =·:1,>_c:: it liken=d to t^at of the ICC; it
also comparrd.1)it CAL's power to override a ccll::cti'.·s agrecmant dealing ~jith the
normal subjects of such ccrtrac=s vit'~ t,-.c way in which collective agree-:=_nts take
precedence over i.-dividual co-tracts of 'omploym=nt under the National Lator Relations Acc--an example of how a court may bl':r innumerable diffarzanca3 which are
apparent and important to thcza
familiar
·:ic- t,-La r:anq paculiaritic5 o°_ labor relations and agreemc;:ts in diffcrenc l`ielas
(:o
say nctnin= o.` the many dif_ercnces
in the a?plicable scatuce=) zr.d parlay =her: into possloly unwarranted propositions.
AfaonS the ^_,:.y dif=craneai i.^. the Slt'::.C~n.· dii:'_°_5=d in that case and this
group
of -ascs is t::ac the last se-ltanee ;,f S·=c:io. 5(2)(f) erpl_cirly provides for the
concur rent c::iste:-.:e, and thcrcby cneratije efiecc, of private aree7c^t=- previdin=
emplo~-cc pr.ctccc-on ,.rd !CC-_r.poocc, con~itio.^.s.
_3/ T h..^.ve _.:c_,:d and cc-aider:d :.11 'ale t-atc·iaj and ~r~u _.ts Zubitted by tic
partiC5,--.o ..'.CCC·r
..C·.7 l_at~, in C,', _ C
Cf.:-dingy
iC'C
^f :"
:75
5:1~:::,it:Cd. C'erta_
rmatcr_l d··^_ not r=CU:...
C=:n'T_C!^:.C:'.,."C, C.g.,
_Cp'_e5`
rSf
1CCCCr~
from the
CO-.'ILSSiur
is
c(.C'`, .:5:.:.'_-1 L__=~'-.' CIT_.".,
t
:,_ ~C-ni__~in c:, air. _., ...'d
othCC
cc,-.;i:~_". o_: _cl"1= ·,. .^,;_::i:; _~ _l:c:; r(;,. ;rtes.. ,·a.i; of
the , :s;;i-_':on
:,~,:--~. ,
S%i l _ ,:ot
1I:~.r'.,.=d
JC t·'C ~·. .;.i, . ,,5
_~dr:`:5 . Il;-LL
pr::J.:C1'~^_
~a -_
Brotherhood of Loco^.c ti re Enine^rs ~;. C`~ica
~rc and lr.;d. &y. Co., (3th Cir.
1963), 314 F.2d 421-, dealt with a railroad r.er=cr sit_,ri,n in :which the parties
agreed ' a somewhat modified version a th^_ '%acl,:- 'ng
n
t?,
cement provided
i~t
or,~,
_r
" a fair and equitable arr>no_ment for the protection of in forests of such employees
as provided in Section 5(2)(f) . . .' and th.e Cam,i:sicn adopted the agreed upo-t
arrangements in its order approving the purchase of one c_rrier's facilities and
rights by anotl:^_r looking to the coordination of son,; :acilities. The acquirin_
carrier Save the required Seccion ( notice and soc,-ht to reociate an implementing
agreer_ant. The carrier sought arbitration 0ien r.eroti>tions =_tallcd in t;:e face
of a union contention- that the coo-dinaticr. constituted changes in rules which
could Only ':: cccet,?lished unca_r t',e prcccd_rcs prescribed by tae Railway 13bor act
for such
Ch_=~C5.
In this
contexc
the cc·jrt `:01d that Seccion 5(2)(f: displ_ce'2
the requiremencs of the rnilway 1clcr Act, Q~ita apatt from the dubious reliance
upon lent v.
GA3
for t~:at conclusion, th~ ca so does not present any conflict ber.aen
Section 5(2)(f) and tie WAsh-:ngtcn ~.Crr-_rent. Indeed it :gas a modified version of
the Agreement concluded by the parties thit vas being enforced undo=-- Section. 5(2)
(f); no challence to the last =sent=nce of Socciz~n 5(2)(f), validating private em
ployee protective agreemorcs, was i,Ivol-r·:d. (17.B.: The Court's caution that "·7e
limit our decision to the, peculiar factual situation of the present case." 316 F.2d
at 434.) Ihese cases, thin, do not lead to the conclusion that Section 5(2)(f; dis
places the Washingtcn Agreement.
The Section 13 Committee has )rocessr:d many cases involving the New Or-leans
`~ and other conditions and innumerable ir7pler7enting agreem211ts under the- Washington
Agreement have been concluded desp:.te the prior issuance of ICC orders imposing
various protective conditions. This pervasive and ccn=_istent conduct is =t odds
with the C_.r__rs' csserticn that the Vashin7ten g-·e-manrt i.s a nullity.
Congress did everrid°_ the Railway Labor Act when the dispute over
firemen and
crew consist did not respond to innumerabl^ e.^.:r=ency boards and a presidential
commission and threatened a national tie-up of rail transp.rtation. Only then did
the President p-ope>e and Con~r_ess reluctantly pro=-i3= that a public agency (other
than the Commission as originally proposed by the Pr°_sidantl impose term; of employment. It approaches the absurd to entertain the notion that essentially the same
thing happened sub silentio in the 19x0 enactm_nt of Sections 5(2)(f) and 5(11)
where no such crisis had existed, no bargainin., scalemate had occurred, and no
stoppage im?cr.~d.
The background and purpose of the !dcshin;ton Agreement and Section 5(2)(f)
differ.
The first is a voluntary naticral collective bara:ning agreement which
stems from the peculiar nature of railroad rules
agree-cants--it is
the key which
unlocks the rules preventin, transfer and consolidation of work. Section 5(2)(f)
is a statutory rerliiremcit which com=a into pla4 when carriers seek governmental
permission to men-a facilities. It is the price imposed by governr,-=nt for such
permission in the interest of balnnci^g employee interests with those of carriers
e
0
and the public. ~/ In seekin,S that r~r:^,issi^n carrie-s 3: not seek relief from
another private a3rcemcnt; th.2y accept
Zl.a ~O~'".',l~iian~3
terms for the tram of
goverum-4nt permi'iiOn to t-'CC
CC
rtain 5tel.s. i'~'_1':. typically employCC Or-anizations Lntcrvr_ne, they do so cc avert actio,s ·-L%icn tn,,y bcliev_ gill :.hrink
emplcy:::cnt op, ortunitios and to rt:,::im.ize t!·c p-otscL cn_ afforded cmployccs. Tic
protc--ci1'C conditions granted --ften aT0 s,tp,~rior inn r.^any rcspccto to those in
the hasl:i^.,,^,tcn A6ree.-::nt balanced off in scr.,: dc:,re.- ry ;;m;:what more restrictive det:.ils. Eecauae of this they usually l%.ve fee., accepted, even if more
favorable ecnditicns !.;ere sought fret; the ~o;:mis>i.;. or rhc courts. 'No Co-misSign actioil indicate.i as at temp t to abrC.-atc tllie Wy=kin?tern A;r^oment, altl~cu~n
soma of its conditions adopt the Washi:~5toc A-,lc=non: with :.:inor modifications.
I doubt shat the Comaissior: cculd cv=lrid·= t!:e Wa_blr,Stcn Agrer.;:nt if it wanted
to; it can order hither benefi~s and if7ros-= them up::: the carri.crs as the price
of approving (v'h-at they seek; but a
!:':·.'C
;.0.^.tpellin5 '>^C-in= Of CCngression:_1 intention is required to obliterate a nat.i:nwide cola°ctiva a3ceemant net objected
to by either mana.crtcnt or lab=r - cr, inde:d wry c_ov~rnmental a3ency - and supersede it with Zevernmantally irposcd Conditions. ~L:r- than taco decade; of conduct
by railroad managcmcrnt and unions and by ;hc Co~vaissicn belie such a result. As
the Commission noted in its announce-ant of F=ctuary 17, 1964, (,320 I.C.C. 377) in
this case: it did not intend to sup plan= tha V>shin_gtcn Agreement and, indeed, its
protective orders have bon patterned after teat agrtcrt:ent, The Southern argues
that the ICC (:iespito what it said in its 196/= statement) !,giant its arbitration
provisions to displace those provided
by
Section 13 of the Agreement and offered
the following quotation from the Ccm7iissicrn ;31? xCC 566):
TIc
po..; bility also exists that a carrier
lvill
refuse to accept arbitration procedures under para-raph 5 and require empley.jes to invoke the
provisions of section 13 of th·-! ?Iashin^tc:: Aoreem2nt, which involves a permanent ccmmittce whose decision= r7~ay rue subiect to protracted delay after a
claim is rade. In our opinion, fairness -rd equity require adoption with
some modification, as hereinafter Set forth, of the condition urged by the
association With respect to urbiLtrarion; c·hich will make mandatory the submission to binding arbitration of disputes not settled by a.greement between
the carrier and the employee.
This lam,--ua3e seems to say that the Section 13 Committea arbitrament is available
but might be too slow, herce the Commission tans providing an arbitration provision
thought to betuperier. "his is quite different from saying that the Section 13
Comm ittea procedure was to be supersed=z! cicrej·~·-:r, it hardly seems likely that
the Co,^..mis=ion could ha·;e concerned itself rich Section 1? if it did not believe
that the remainder of the Washinston ;,fir=emcnt applied, for otherwise tl-,e Section
13
Committee
would have no authority tc act,
4/ "Nor do we perceive -any basis for =saying that there is a denial of due process
by a regulation otherwise
permissible. w
inicl: axt=nas to the carrier a privi-
ego
relieving, ._
f tn= cost
E·-F;· -·C
^_ __ p _ _..._.. a cf its carrier duties, on ccnditien that t`.c saltin.gs be applied
in
cart^to cssrt.p:nsate the loss to employees
OCcasion2d by -i~·- eNCrciic
o1 .!1G
prl',111^~:.~< United States v. LOwdan, 3103
U.S. 225, 240
(1739) spcaklng of tl,e ~r^dcc^ssor provisior, Section 5(4)(b).
The Court eqca~:ed Suction
5(1-)(b;
-th t;:= then pending ^i11s which brow;ht
forth Scct_cn
5(2);f).
Given C11= prCirerrCd
pJsiCiOn
of
cJ11iaCCi'1C
sat-611j.^g i, ;1gCiORW1dG agreement whiC:, pt0'iid-s for nez,otiation of e,l^ieY.'7c:nt
~-^:C.ts
;,f nnrnnrs, (and pro'
vidc,.s ir.s sw: 1aC:lincry for averC:i.,? dtad1cc%i
(J~C .tC:1_= i.0.
70%: it seems
Cntircly V:'.1i,aly tat the ·Pashin=tc:·. Ar.:-En..
~5.. C_:!. 1Sio.t. 'IV
CCn"Less without .specific mcnt~ion of the ?act. This r_CnclL.s!tn i: all the srrenger for the
fact chat the no:ic_ and impl=,-.L-nLinZ <:c:ecr..o·lt provisi-ns ha;·e proved vcrkable
again and _Cain in coordinations becirccn carriers 1.-n~rc iCC proteccive conditions
had been issue.
Carrier 7'.c-.1Sers ur_e that two co.~r t pre-_cdin=s concerning this controversy
have led the par ties bac:;
Lo
th- ICC and chat its c2vision s~-ould be awaiced. In
companion Cases, 5/ the Court
of
A,pca?s fc. _hc r4--;':h Circuit declined to rule
preferring to have the issue determined rral::ninariiy by con !CC pursuant to the
earlier re:,~aad~ogf another case by t1la Supr.=cCcu-t. 1:,e Suprcmc Co.lrt of the
United States '-, remanded the other c a e to tae district court with instructions
to have it remanded to the
CO=1i55iCn
viith instru=;iczs "t0 amend its reports and
order as necessary to deal with appell;a a z uai-c'sJ request that Sections 4,
5, and 9 be included as protective ccr3_cicns- specifically 4ndicarino why each of
these provisions is r-idler omitted or include". Se: United Sates
v.
Chicago, l-l.
St. P. & vac. R. Co., 294 U.S. 499, 511." (The- cited c.a;e c:_.s decided in 1935,
before the 11aShinguon ACrec'tent, and
dD°_s
not d-a1 with it; ii: does deal with the
requisites of an aapcllrte record vhcva az-ency _cti.-:n is contested.) Fotn courts
indicated t;_ey .sought clarification
of
what the ..ICC !-,·: ruled and why, While the
ICC ., vieL: of the impact of Sections 5(2'i:) and s!1-. ..nd~,~_bcedly wauld be influential with the courts, there is no ccirtaintv tl;-J-,te Com-ssion
Will
reach that
issue. The
GO___'_ __~__
Seems t0
.Cdai;!:-.~ l.'...~..iSSlc..
to .:plain ~llethcr its
r
COnditlOils in-lulled certain parts of
Llle
:yLue')(`-!;.t-. Or nos and , to
C::D
la _n the inclusion or ~m-ssior:; tile issue bc=ore chi= Co-:-_·_tee .-ay act be dealt c:i~h by the
Commission.. the special history and a:<purience -.f this Cemrittee and the history
of dealinss ;:y S1=.^.at~ri-6 to the Washin,ton A=:=-·ant (soi'C of whom played leading roles i_^. the enactment of the 1940 prU'ii:iO;L) upon wMcll this decision rests
would seem to impart importance to the ·-'isncs irion _: L':e issls=_ of the interrelationship of the t,grcc!nent and Sccticn 5(2)(f) in t,is arocaeding The Carriers
raised the is:ue;__the Committee is obli3cd to cischar- its functions as best it
can.
Southern's letter of -July 12, 1966 sub-~iited a copy e: motioa
papers in Gary
v. Midland Valley R.R. Co., Civ. No. :995, (D.C.%.D. C;cla) c='nicl-. include a memorandum by the attorney for some of t'.~.e Cr3;nizat_ons ccn_ra_,ting the ':ew Orleans
and Souti:er-_:'..ntral cond?_tions a.nd dot?jr~,.:y t'::c: _..:ei~rity, fry.^.. tt·e o-,ployces
viewpoint, of tllc latter to the fcrr:r. Hoc:c·~Fr, ever, if that analysis is accurate, it does net reach the issue befrcre _;e C^m_ttat - w;~cch2r the . ash_n-Loa
Agreement is vital and pplicab1C d~;piC.~. Sect=. 5(2)(.`) of the A:t and Commission
orders issued pursue.-.t to it. I die.' net coo=t:~c the ICC conditions in my draft
S/ Swjtctren's Union
v.
Central of ~ccr;,-:.. ^. Co , :·1 P?d 213 ~17~5); Brotherhood of :'., i1·:^ Cic-:!a v. Sr.uc::c~'. ... C3. , 34.1 F?a 217 (1:65; .
u/
rail~.:ay ~c':ol' E:c-cutivcs' AtsocL;ticr, -. !'nit^d States jn u-S- 199 (19i·i).
opinion r<or in this final cpinicn. Tli:s --pinion is ;claressed to the interaction
of the Act, Co,^nission orders and the Agrecmcnt. If the Cc~mission decides that
its orders comprehended the notice and impl=menring agreement previsions of the
Washington .4-,reeMent and if that decision is sustained, that would be cna basis
upon which the Agrecmcnt is applicable, Thst is net the 3asis of this ruling.
Rather, the ruling that the Washington A,ra_mcnt epplies is tl;at the bacl·.grcund,
purpose, and lam.-ua.e of Section 5(2)(f) all r-iintain its ·operati:·c force, as do
the precedents and conduct of this Ccmmit:ee.
For all of these reasons; 7 conclude that the Washington Agrcerzant was not
abrogated nor modified by Secticns 5(2)(f) or 5(11) or the ICC-crders in Finance
Docket
No.
21400. fhcrefcre, the Carriers viol_ted the Washington Agreement by
putting cocrdinations into effect r!ithout observing :b=_ important requirer_ents:of
Sections
G
and 5. They therefore must (1) compensate eaployees for any loss of
regular compensation or fringe benefits and (2) must give the requisite notices
and negotiate tlhe required implementing agreements. Until that is done employees
are entitled to full compensation and fringe benefits as if the jobs had not been
abolished. Docket No. 106.
When implementing agreements are achieved ?Ja.Ahin,,2=en Agreement benefits will
extend through September 15, 1963 (five years from 90 days after June 17, 1963 -
the point in time when the Carriers, had they fulfilled their cbligaticns, might
have been abla to expect that an implementing agreement should have been achieved).
Indeed, that presumption favors the Carriers. Y_ac:ever, until they do negotiate
such an agreement (.or this Committee writes one in the F%·ent of a deadlock) the
Carriers can hardly expect to pay the less than total compensation this Agreement
allows to those who observe it. The effect of ccordin=ticn upon any individual
employees is to be determined as of the date such effect occurred. However, such
an individual will be entitled to the equivalent of undiminished earnings until
an implementing agreement is achieved, 21 after which the allowances payable under
the Agreelent shall go into effect. They are to be computed en the basis of the
date of actual effect.
As to.the portion of the decision ordering the Carriers to give the Section 4
notices and negotiate Section 5 implementing agreements, Carriers argue that such
an order (1) e5,eeds the referee's authority, (2) gees beyond the questions posed,
and (3) is unrealistic in view of the many changes made since the coordinations
were in fact begun in June 1963. As to (1) and (2), the discussion in Docket 1'o.
106 is pertinent. As to (3), the notices and implemRnting agreeccents, of --ours=_,
must take into acccunt intervening events. But this is quite different from saying that where the parties have contract-=d to agree ::ton implementation, a fait
accompli by the Carriers deprives the Organizations of their contractual rights:
The Organizations may persuade the Carrier= that other arrangements than these unilaterally made arc desirable; in case of deadlock; the Committee may be persuaded
or prescribe: so^e ether arrangement. Ihat the Carrier-.' actions and resulting employee relocations, releases, resignations .and the
lilt-,
may r_eke im?ler..entir.s
agreer~nts more difficult to arrange may be
a
fact o= life, but it is no excuse ror
scrapping into pal parts of the Agr·-e.-cat. The Agreement mast be observed,
7/ The Carriers
dill,
of course, be giuen cr_dit for any wage or benefic payments
cmployceb had r_ceivcd.
a ~ -
DEC ISICN:
The Carriers effected coordinations as partieul-razed in the Findings on and
after June 17, 1963 in violation of Scccicns G and 5 cf the tea>hington Ag·rce^ent.
They are directed to pay full back pay ;i.=., based upon the avefaza compensation
earned in the 12 .-months precedin;3 thu date of the changes and including all fringe
benefits), including all subsequent increaecs in wa,es and fringe benefits, less
actual wages and/or benefits received, to all employees affected by those unauthorized changes as if the coordination ?:ad not ca'cca place until Section 4 notices
are served and Section 5 imple:-.entin; azreements are achieved. The Carriers are
ordered to serve the notices req.ired by Section 4 and to negotiate the implementing agreements required by Secticn 5 of the
Washington
A~recment. The protective
conditions under the aashington Agr~er.:=nt shall be in force through September 15,
1963.
-------------------------------
DOCie.T r0. 142 --- Decision by Refer^e Bernstein
Brotherhood of Railroad Trainmen )
and ) Parties to the Dispute
Southern Railvay System and )
Central of Georgia Railway Co. )
QUESTIO'N'S
"(a) The transfer of Southern railway yard work at Hamburg i:ard, Augusta,
Georgia, to the Central of Georgia Yard at Augusta, Georgia, and the transfer of
Southern Railway yard work at Columbus, Georgia, to the Central of Georgia at
Columbus, Georgia, constitute coordinations of separate railroad facilities and
are subject to the terms and conditions of the
Agreement of
lay,
1936, Washington, D. C.
of
(b) The Carriers violated the terms and conditions of the tlashingtori Agreement when the)Kfailed to furnish a Section 4 notice
or
the intended coordinations
and failed and refused to apply the terrs and conditions of the Agreement for the
protection of the employees affected by the coordinations.
"(c) The Carriers violated the terms and conditions of the I.lashingten Agreement when they coord_nated the Southern work with the. Central ;:orb without agreement as contemplated end required by Section 5.
"(d) The Carriers shall now be required to restore the status quo and apply
all the terms and conditions o_` the Ace^.ent to the coordinaticns involved and
shall
c:a';c
.:;pole all _-ploys=s cf::cted thcrebj _> if said coordinations had not
taken place
pending
compliance wit! Sections 4 and 5 of the .Agreement."
- 235 -
FI:^
JI'sGS~
This is a ccmpanion case to Docket No. 141 and it; description of events
prior to July, 1963 .apply here. The differentiacing factors here arc: (1) the
Organization here is not a party to that case; (2; its members cyere not affected
until July 27, 1963; and (3) the alleged coordinations complained of concerned
transfers of work from Southern to Central.
The factual recital provided by the Organization de-enstrates that Southern
jobs were purportedly abolished and their work transferred to and combined with
Central operations soon after the ICC i=ssued its "clsrifyin7" report. The Carriers' letter of August 16, 1963 affirmacively asserts that Southern Yardmen's
r
~wor1: at `Columbus and :lugustl was
transferred
to and consclidaced with Central's
,,
and . . . were adversely affected ti=rcby." Hence I conclude that a coordition
took place and Secticzs 4 and 5 of the Nashington Agreement were violated if the
Washington Agreement applies.
the Organization was not a party to the court proceedings described in Docket
No. 141 in which I decided this Committee was net relieved nor deprived of the
authority to decide the controversy despice pendency of related issues before the
ICC; a
forticri, there is no question that the applicability of the Washington
Agreement is ripe for decision in this case. For the reasons stated in Docket :Io.
141, it is concluded that the Washington Agreement does apply to the claims and
occurrences in this case.
The remedy must follo·.7 the pattern adopted in Docket No. 141 for the reasons
set forth there.
DECISIO
N;
The Carriers effected coordinations on and after July 27, 1963 in violation
of Sections 4 and 5 of the Washington Agreement. They are directed to pay full
back pay (i.e., based upon the averaCe cc,pensation earned in the 12 months preceding the dates of the changes and including all fringe benefits and improvements
in pay and fringes since that time, less accual wages and/or benefits received) to
all employees-effected by those unauthorized changes until Section 4 notices are
served and a Section 5 implementing agrcemenc is achieved. The protective conditions under the Washington Agreement shall be in force through O,:tober 26, 1968.
The Carriers are further
directed to serve the required notices and negotiate
the required agreement.
- 236 -
Docket No, 144
SECTION 13 CU'.1'.tITTE1
ACREli.'·IE,M1T OF MAY 21, 193b, WASHINGTON, Il. C.
(r1ASiiIh'GTJN JOB
PROTECTION AGREEMENT)
PA RTILS The Atchinson, Topeka and Santa Fe Railway Company
~`Tti'-'
(destorn Lines)
oIST'UTIi: (formerly Gulf, Colorado and Santa Fe Railway Company)
St. Louis Southwestern Railway Company
and
Trcnspo: tation-Cc=un ication Employ ces Union
(formerly Tho Order of Railroad Telographors)
~lU1:STI0`1 1. When a coordination is made at a station where,
Al` 55;f t priot thereto, the fore: r::quircd by one Carric. is
1; i;.^,.,
ore tclclro:h service employe zrd one cloriccl scrvico
empioyc, and force requi_od by the other Carrier is ono Col=,·aph
service c7ployo, does The Order of Railred Telegraphers have the
right to d3taad that so long as two or
Morb
employes
a=a
required
following theooad_natiiion, such e2ployos :,vat be subject to the
scope of
the
M_cg
o;1herS' AZrcer:nt, notwithstanding the fact that
only .one c ;ploy a will be required to porforn work covered by the
scope of the TCIoITnpher5' Avree^wnt
and
the outer employe
!Jill
be
required to pcrforn only clerical trod: covered by the scope of the
Clerks' A3ro=nS
2. If the answer to Question No. 1 is negative, does
the assunount of force proposed by the Carriers constitute proper
selection of fc.rcos insofar as employes represented by The Order
of Ra:iiroi& TeleZraphers are affected?
1IXDINGS; kjoticc to consolidate Carrier's separate staticn and
"~""`"" agency forces at nc:rugor, Texas was prcper:y given
to Loployos' representatives
1;1
accordance with tile provisions of
Section : o` the Washin,ton ,Job Protection A,reement of "ay, 1936.
Erpioyns were advised in confornace teat the Larriers interded to
"retain
r.3;
initial station forco o: cne agent-tclc"ra; er ass::-e.'.
to work scvcn days per wcok and one clerical employo assi;ned to
vorh six days per wccn". Gulf, Colorado and Santa Fc Anii-a.
Co!-.;Jany hr_d cn agent-tq1cjr: paev (j. J. Bledsoe) wbo worked seven
days a cook and ,, clcrn (~, L. AcLendon) who worked sir days a .Joe!:.
St,
Lewis
.:~:.'t~1:JCSt~ll
R:litJ:y
Co_11?any had only one; S9cnt-te:leZraPhe
(i.. heDli.ttle)' who worhed
`:t::
n;
S
a wech. Carriers proposed tatt
LletissU3
O.`td NeLcnann be retained. Lmployes proposed Oat i:;'nt-
telearapners ailedsoe and IIacllttle ^^_ retained. Since this issue
was first submitted to Sactiss% 13 Ccon:ttce, the erptuylent s=tuatlon at McGregor station has chnaed. but the primary lssuPOefore
the Co mittee, as framed in Question No. 1, remains.
It is a well established practice
i7
the railroad industry that clerical work is performed b; employes covered by the
Welranaers' At;rccc..cnt '.;ho arc classified a5 Aswtlts, Agent-Tel..
graphers and Telegrapher-Clerks. Neither the scope rule of W
Telegraphers' rigreom'ant nor the scope
role
of the Clerks' Agrco. :nt
provide for exclusivity of clerical work. By y Bustc, acti
-;' ,,,
[7i~'
Cc
~2nu
tTadil:-On clerical work has b0%n done: by11ents, A.^z:nt-TcIe; `~nrs
and TeIo'rapner-CSC;Zs. Thorn is no
d·^.7:1^i
tAnt AZeat-T,eIC;rap^Crs
0mployedby the two CQOrdinat:an; carriers performed clerical work.
The allegaticn that the work "porforr=d by tha A?entTelegrapne r for the S;.. LStis work which y n=y properly be performed
by a clerical orplcya and was
ma
y°ly performed by the St. LS! cent
W?;;raphoor because he was the only employ; aa55il;ned t0 work
C.r
the
St.tS: station" i:. i: _atarin1. The tc.^.t i: that h:: did clerical
work ani that he vowhad under tho
Telc33r
:phcrsl' a^rtzonont. That
navira' Loon conelusiv/aly establis%vd, !Lea is entitled to continue to
perform that work ?.s long
4s
there is need for 11.. Carriers may not
arbitrarily tra:sfor that vorI:
LO
nn cvpl0ya covcrcd by the Clssols'
i
t1L;reamont and plc^.c;. the A;"·at^Tc10SraPhGr ii: ,:_ loss fav0V010
Crl
ployment poFitjo:. Award No. S of Specil Board of Adjustro. nt `1o.
1741, quoted by the Urriers, is not coai:rary t0 this principle.
Section 5 of the a,^rce^ont of 'Fay, 1936, qznhin "n,
ll. C. ,7rovldss that "any assi;nnont of a^p loyas made necessary by
a coordination shOl be mode ,r tire bLsis of L.n 7ccmont WVecn
t'?v carriers en''. tht orl<niza...n~ of'the erplcyas affectev". No
a·,'reer cat das reacnwd with tilt .i'oprop her
Vi'
`;%i::atlon. Tho.z is
.r., eviac"ce in the reeerc Vat,=lthe clbrps' Ornani=atien: nP7 -qvcd:
01
wisapprovcd cf
tna
pesiticn
o=
the Carriers or
tae
Tele;
-a,heT
. .·001W; LCrl. i'.l the
absence & the lzter si10'w':n", date?"'ninatin`
..lnc jue.
tl^L.
before this Cov~,'Cwe must be re~Olvee.~ .:1;
L7,^r~r
~Ir: rC5;'CM,IjAe?;is-i:_On5 Of
thL
Carriers ;lad the Telegra.
_:>.
;. eat of ,.. ^..I_;,, m;de nceetraY ,y , o
70nltl
.2:t, _.j rt of
t
i:_00e cnl_KninY usdc.
-c"In i _.
Cal
Mrgtc-n ,. P:otecOc.
"2_-pr:t.
It h:_ h_en ·:t".
_:i_ .'Lo
goateTol^grap_-i~ nod Kno clcrirrai work at
..
.,._:
st6tion be
fn_a
the ou.linaci:'. , (2) . ,n .'..=
._71'. _ ..
sout;st· :(' repigcl cl;. :~F-,ells-.·Li , r ;ph;.. 'iitn a
"tr1C,".1 f-" .'.
and
(J)
that the'. clt;rica^.l empioyn would be in c preferred
'l;W:
over tire Agent-TrleLrapher.Under all of th^se circuistanc.v, it
is concluded that the Enployes' position is ;pore te*nablc and
should prevail.
A,qARD . .
For the reascns stated in tha Findivns, and upon tho
conditions existinc; in this case, the answer to Question Yo. 1 is
11
'ySll
i;xecutod at 1vasl:inhtcn, D. C. this=°~ j ay of April, 1969.
,e
Dr. -zu Iroinac~:,
:<c;ierc:.
Docket No. 145
SECTION 13 CU1h4ITTIa:
AGRi?E·IENT OF .'LAY Z19 1'J36, 4rASifIItfTUVP J. C. ,_.
JOB P907ECTION AMEMINT)
P1110ILS Southern Pacific Company
-'%) (Texan and Louisiana Lines)
itlI'"U'rL: St. Louis Southwestern Railway Lines
and
fransportntion-Consunieation Employees Union
(formcrly· Tho Wier of Railroad Telogrnphcrs)
QUL:S'1'IU\ 1, dhcn a coordnstien of services ond facilities at
i1'i~l Li-': a tctMnz! is =dc under the terms of tile A?r_,mcnt of
_ -- la/.
199366,
Washin_nG7a D. C., which involves a''tv ansfur
of toleurn
j)1:
ser"vicon Kc: n "nrd Office to .^.. join% zolalraarh office,
does The urC'or of Railroad ToiC;;
.');:..:'i3
have the right to rcquiro
that yard office We·r=Cal
Volk
too
zssionnnd to
unih' t:C."'
__:a
for.located in the yard office be trnnsfJ4'iwd with tha tc;;og?nPil sorvize
and be hand'.cd by tel..^.^.n,_-ap11 forces in the joint te._e;;cr.pa office?
,2.
DDC5
The Unda:: of Rail r and T elo^,
r:
,oho r s h,^.:·o tl:o
right to
require
an incyecso in wage rates Won a~ccordinal;oa is
nude?
3. If iho caswers to Questions 1
zad
2 are negative#
do^s the cssi_Sn2ant OS force p::
s5cd
by the M'riczs conntl.WT: n
proper scloctiOP of for= to poz'nil Carriers to proceed with the
coordination?
FINii:IVI;J:
A
"e00ydinntion" .s coatomplated by the A?iec^::.^.t
of
`."- days 12360 Vz;hing=en, D. C. crists. Proper' noliee
was given to the ropi.°Oscntatlves of intowasiod emplo;'eS :.,n
a
cCnfcrencos-ibrc told as provided in Section 4 of ;.hat Alree_tont.
.1t the tire notice was served at. Louis Southwc_atarn
liai
w:,
, Company "had ono C1..^.:~ i~°tel''.,^"21).`t~r o.`.1 Ouch Of
thrc i W
CZ9
In its Austin
St7oottt Y1&l o?f1Cc". ·At L1:0
JOuth,za P=ifc 0le^
Ft': office and inZ;l.oclv.r:g to'.·c: at Bcl^ ,Junc::l.o-t ot,c,._
Clirz°teneiMwtl
..:'5
employed
0:1
cock of
throe
:hiftvr.
Cariicryy D7u^
posed
t0 cOOY
dinavc·'all tale grzah 5crviCos at BvIt Junction and tH
positions in tll.^.t facility
could
bo go';c'Fncd by on Agreement bzwo:n
te JOuthorn Pacific and
tnC
TOluyraphors. CCrriursGlsO XOPOscd
i~
to atolish the clerk-tc1c;raYbc- ositions at the Austin So-cct Yard
office (Dallas Yard) anti trap. _. ,!c clerical work previvw7lj
done
by
;,Iteo
to 0erical employes ... 'Mlle: Yard. who would !;. __ re
picatnted by
the T c le6rap J;cr : ,
Carriers arluc tat the clerk.-teleyrapherF at the wallas
,d ~ ·' little
ccmounlcti
Yal lert.orr.~u t: on worh; an average c.' 1 hours 3.
wihutes on tae
first shift, 1 hour
OS minutes o.: seco&
shift,
and
1 hour JU minutes
O:1
third s"if
t" The
rest of their work tire das
.. r _·1r: tt
There
15 n0
question that
CO!'!`>u::<:d 111
pC'rfOr;.'.ci:Ge of
CiCT1Cd1 '
by
custom, praetrcs and tradition t:1e e1C:k-telcgraphQr;, at that
location,
becove
entitled to p: ._o:. clerical work as lo:.., ..s the
need continued. Carrier
r...:y
not. a:n.trarily abolish tl-!e :o;itian;
ant; truNsfor
tae
cloricollwo_ :c onctKcr locatcn of the co^rdinting M'rievs, to co porfornad by crplcycs not covered by t(!,`. Telc
braphors A3roumc%t.
h sir.:ilar issue is fully
discussed in
JlocLot 1.x;4. The findings and conclosions therein reached ere apnlic:hl
to thin eaaso and are affirmed.
Soctioa S of the Washington Job Protocticn h;rcamt°at
providon that ": ny assion-rant of _,p':cycL mad: noc^osunr y by : coordination :hall
bah
nod= On the
bz5is
of
an
zaZroen^ant betwe^n the
cariiot;
aRd
the o:nnnizationa of tha an?loyes aaffCCthd..." Only
the
t:a.Crri r. '. ~ ,:?11
is the su!.jeet of sue, It
.,~.._:a..et of 1_oyes; , .. c;,r:c::.=nt,
includes ti:o positions, the number of .^.i loges
aSSigual,
tin; leeuisr,
of the c»lgnnent, S;a:lorlty rights and tile organi"Lat:o:_ pvwseni:ln
·'s
such aanrifned employes.
Ratos of pay for the assigned enploycs is not r hargaining suhjoct required
undo;
said 3cction >. schoialo n^rccmcnts, or
Supplomont5 tharCtO, plOVlde
E07
ratOS Of p%y.
ThYSC
Ore
5rPliS;5?t0
the i,srecd "pan ns,:1g.a, positions. If n0
appliC0l=
rite eT1vS
the p:rti05 .,ay nG;;'Jtlat: within the pi01·isicas of the
lynil~LY
L;'JOr
Act
as nmcnJed.
This
Unmit:ee has u() power to fix rnL'cs Of · ,'.=%. ··': 1
l;'.5t. 0I: 1..',.C
determination hnfo:C
a.
Cnn'Jr-.
dlnotin! azrccp
ant 0CCOr.-_ C11CCtivC.
h^1)10'..a ci'. 0'ticle ,III (i) Cf than junta
21,
IM9
U. ·rc_munt t0 s'.
''p'ia,
its
_.^1t1;!1
1.~n:t ::!
..S ti
pay
P
:. prt~llr
f. -
(J , i
~' ^ l l .,nl;
= u
t
1
t
.. .. l a
W : f . . ,. .. 1
. . m
a
a.
W.
W · L .. .. ..
L ! y
a g:e:... , 1 . 1 :.
L
prC':inica r2adv 25 foil= .
"(d) ,any J', ..:in ProPcs&s MItNE to
inequity ', l,u ndjust;-en:s are hcrchy with
dra'qn and no such proposals will b.^ served
prior to Septic-;ber 1, 196C)...wit't tile exCoption Viwt if a c. i . for !l_lrty 11^ioto
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a`"::'T_~_
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T)13 p1C,''C-'
^!?t: 06
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wfI,QC
in-
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Q i~
cronscs, .cat.icn b::i:ox ts~ hti.~i<i::.~ 1),^.y, c -c,
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For Coo vc%cun- 1tr,,,;oe ^F9 :::1C! fir, it~:l~;u~ Cl1.^. Onm^3`0' %o
Qttw;tiCa 111'0. 1 in ('Z0:^11. 1')10 nnivor dc quo"tACn N3. Z 14U "No".
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Erocutod of f';iahinrtec19 D. C. thir,,~ 'z~/_~dny of April; ?.969
llit1'~2<i IlJZ1a1C:;p~ .:OeO`:.^O~
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