Southern Pacific Company (T&L L_;,es) )
 St. Louis South:;estcrn I:cilway )

The Order of Railroad Telegraphers )

 IUVOy·STIO".

 1. When a coordination of services and facilities at a terminal is made under the te:-ms of tl:c A,~rcemcn t of "ny, 1936. :Iashington, D.C., which involves a transfer of telegraph services from a yard office to a joint telegraph office, does The Orc~cr of railrcad Tcle-raphcrs havc rigot to require that yard office clerical wor:; row assisned to such tcle3raph force located in the yard office be transferred with the telegraph service and be handled by tele.-raph forces in the joint telegraph office?

 ~2. Does The Order of Railroad Tclegra?hers have right to require an increase in wage rare; when a coordination is made?

 3. If the answers to Questions 1 and 2 are negative, does the assignment of force proposed by the Carriers constitute a proper selection of forces to permit Carriers to proceed with the coordination.'

 DECISION;





Brotherhood of Locomotive Engineers )

Erie-Lackawanna Railroad Company )

 QUESTION:

 "Claim o_` ;·ew York Division En.;neer ?7. R. Van Sickle for the loss of earnings duri^g the :month of February 1:'·'64 account of being adversely affected as result of the mcrgcr of the Erie P,ailrcad Co~:,pany and the Delaware, Lackawanna and "ester-

 KI t7DI'.:;S

 This cant-ovcrsy is ;over-~cd ;.7 ;,n I:-?1;:-:entinc Agree .ent dated ccbruar; 7, 1961, which _., .,_ticle :;I',·, pursuant to ICC c'_nancc Docket ::o. 20707, adopts Sectian 6(c) of H:c :1a.--hinZto·; `.~;~e,~^.:t as -,cdT,'_Jicd by tb-= ;:ew Orleans Ccnditior.s.
 f The latter imports Section. !: of the 0,:1=_ncm3 Conritic.s. A11 three provisions
 add up to the saws taing.
 The Imolerrcn=ing As:-een=nt pre--li?nd for ·-; zl1ecation cf work bet7aeen former
 Erie and L.zckawan-a Ten on a pore=:;=ale of mileage basis. At the time of coordi
 nation, C1=ia.an=, formerly an Fria man, w:3 -. Firsran wc=king out of Port jervis.
 In Pay 1961 ha b=cs.:- an extra °ngirear on the--. ao)ck.ar district. Due to the merger,
 substantial amounts of traffic handled ?=for to t`- merger en c?-:e Scranton district
 of the former lacka-.?>n^.a :°_r=_ 3iverte~ -c the `.=r~T:er ?~=;: 'dork Divi;icP. This led






















' ~:a ,_
















The Unions agree ti=t Section 6;c) prc~ic=_= an ale==rt in determining worsened positions, but they ebJect to mak!nS the test r=:utta--_ls end subject to a showing that other elerants-infact c=us:d the drop in e_rnin_;. The Carriers object to employing Section 6,'c, in this fashion but =p:ro:e t:;= rejection of claims where a showing is made that test period earn in=s were a '.norwally high due to coordination. While I am cp-n to persoa>icn that a form=r r==ing of mina was mistaken, neither side has sheen me a mgr= sa=isfac~ory into=rr°ts=ion. Fence I adhere to the analysis employed in Deck=t 'do. 52. In _pply:ng ic, i ccncl~=Za that Claimant's diminished earrings ware nz)t the sdv=rs= resLlt =f the =oczcination but were due to enhances=nt of earnings caused by the tcordin==ion :which did net persist - a quite different thing.

 DECISIO\':

 Claimant W. P. Van Sickle is not entitled tc a di;nl=.cemLznt allowance because his reduced compensation in February 19=:. was sec a "result of the coordination" within the meaning of Section 6a, cf t re t?as^i-g_ ten .13r°_ement or as contemplated by Section L of the Oklahoma Conditions.

 i
              GRAND LOI)6F


BROTIILR1ICl0I) Of RAILWAY A\n STEAMSHIP CLERKS,

FREIGIrF IL\\OLI16, FXPVFSS :1\I) SIATION EMPLOYES


        UHOTHFRIIOOD OF HAILUAY CLI IKAS BL'ILDI\C.

            CIVINNATl. DHI0 i·:o: File 469-2-11

            C. L. DENNIS Subject: Washington Job Protection Agreement

            GRAND PNLSIDE\T Decisions - Section 13 Committee


                .tea. ,..

                Circular No.14-67


                                  January 26, 1967


      ALL RAILROAD GLEE??ERAL CHAIR?E'1

      IN THE UNITED STATES


      Dear Sirs and Brothers:


      With my August 4, 1966 Circular Ila. 62-66, I furnished you with the Findings and Decisions of Refer=a Merton C. Bernstein in the docket of Section 13 Committee cases he had under consideration. On December 16, 1966, the Carrier Eembers parties to the Section 13 Committee issued a-general dissent to Referee Bernstein's decisions. On January 9, 1967, Referee Bernstein responded to the Carrier Members' dissent. Copies of both are enclosed.


      The Carrier Members' dissent is extremely provocative and abusive. In my judgment, it generates more heat than light and contributes not to a better understanding of the Washington Agreerent a^,d Section 13 Ccnu:ittee decisions but just the reverse - confusion and chaos.


      Carrier's co°.ments with respect to the interworkings of labor agreements and Federal statute have never been upheld either in arbitration or courts of law. Their ccmzents with respect to Interstate Commerce Coa,missicn protective conditions affecting Washington Agreement protection fail to take into consideration that the I.C.C. itself has clearly stated on several occasions that it was never intended that conditions prescribed _:r,der Section S(2;(f) of the Transportation Act were to annul or nullify labor contracts such as the Washington Agreement.


      Map other comments could be made with respect to the Carrier Members' 33 page vituperative essay, but suffice it to state that the dissent should not in any manner influence the enforcement of the awards or the application of the agreement. Presently the Labor :-:embers of the Section 13 Committee are censiderin; the preparation of a response to the dissent. In the event we decide to publish a response, I will furnish you with a copy.


                                  Sincerely and fraternally,


                                  4~ - e x9nq -


                                  Grand President


      CC - Grand Of:lt:i?rs

      All ott.--r G,_-t,ral Char^vn (As information)

      Ropicn:--''L ^. __stric', ,1-V-_senta':ives

SECTION 13 CO:ClITTEE

AGRED ir:NT OF MAY, 1936, 41,~5!4I'1GTON, D. C.

(WASHINGTON JOB F"nOTECTION AGRE%~T.NT)


                General Dissent of Carrier '':embers

                to Referee Decisions --ated July 22, 1966

The Referee in this docket of cases has made awards which result in so distorting and mutilating the Washington Job Protection Agreement that the carrier representatives feel it is necessary to file a general dissent thereto. While dissents could very well be filed in connection with other mistakes the Referee made, we are limiting cur comments to some of the glaring errors in the reasoning upon which the Referee based his erroneous awards.
 The ?,:ashington Job Protection Agreement was executed over 30 years ago by practical railroad men, and in large measure has been interpreted and applied by the parties with only a limited area of dispute requiring decision by the Section 13 Committee. The Referee in this docket of cases has now seen fit to change in numerous basic respects the interpretations and applications followed by the parties over the years in the face of the obviously clear language used in the Agreement.
 As will be pointed out below, these awards in many instances ignore the clear and unambiguous language of the Agreement between the parties, disregard the surrounding curcumstances at the time the Agreement was madep and do violence to the intent and purpose of the Agreement. In other instances they disregard, distort and violate beyond recognition, the plain language of the Interstate Corrr.erce Act and the d-visions of the Federal Courts and the Interstate Commerce Commission which defined the impact of that Act upon the Agreement. In some of hi! decisions, the Referee has also exceeded the authority and jurisdiction of tnf Section 13 Committee and in others has ruled on questions not submitted to hir. _or decision, so that he is guilty of gross error perhaps resulting from an inability to understand railroad labor areert:ents or the statutes and decisions sutordinating them to the Interstate Commerce Act, and to make impartial determin;a.ic.-.:; wit',h:n the clear jr.tent of such a;-reex=nts, statutes and decision.:.
                            _2_

The shortcoming of the Referee in the decisions in this docket of cases can be illustrated in four categories, each of which are discussed below:

          I. Decisions Involving Section. 6 of the Agreement

Section 6 of the agreement provides benefits for "displaced" employees. This "displacement allowance" is to be equal to the difference between an enployeels compensation, month by month, following the date of his displacement, and his average monthly compensation for the twelve months preceding his displacement; an adjustment is made for any month in which he works more hours than his pre-displacement average. (Section 6(c)). To be eligible for such an allowance, an employee must meet four requirements set forth in Section 6(a). These four requirements are listed below, together with the manner in which the Referee has ignored or distorted them in his decisions in various cases in his assignment.
 1. An employee must be "continued in service." In Docket 127 the Referee brushed aside the first requirement. That case involved 10 employees who were not continued in service, but who lost 'their positions (wherefore they came under the provisions of Section 7) and were furloughed but "performed extra work as it became available." The Referee nevertheless ruled that they were "eligible for"Section 6 benefits."
 2. An employee must be "placed T ~~ in a worse position with respect to com^ensation and rules governing working conditions than he occupied at the tL:e ef such coerdination.'1 (Section 2(c) defines "time of coordination" as i.- date in the reriod _ollowirg a coordination "when that employee is first adversely a«ectcd -s a result of such coordination.") The second requirement - r showing :?,athe employee has been placed in a :gorse position with respect
 -3to compensation - necessitates merely a showing that the employee has been displaced to a job with a lower rate of pay or fewer hours, or both, or that while he has not L,-en displaced the earnings opporiunities of his own job have been reduced. If this situation exists it may readily be demonstrated, and as the Referee was informed the comon procedures for

 applying the ldashington Job Protection Agreement require a claimant employee
 _a to make such a stowing (see point 3 below). However, the Referee has ruled that no such simple shoeing is needed. In several dockets he has compared the employee's post-coordination compensation in a single month with his average monthly pre-coordination compensation, and used this comparison as the test of requirement No. 2. By that test any employee can establish eligibility, even if there has been no change in his job, his work, his hours, orhis rate of pay.
 For example, in Locket 131 the claimants post-coordination position was at least substantially identical with his pre-coordination position as to shift worked, rate of pay, number of hours worked, duties, and rules governing working conditions. Ho:tever, the referee ruled that the claimant is "entitled to a displacement allowance for any month in which his post-coordination earnings did fall below his test period average after September 1, 1962 because his work was chaGiied in an admitted coordination; the lowered earnings would constitute a worsened position in regard to compensation." No claim or showing had been made that claimant had been adversely affected, and no "test period" was or could have been clletermined. No claim or showing had been made that the clai^ant had been "placed in a worse position with respect to compensation
_a ^ra.· the occurrence of such a displacement can identify the "time of coordir.aticn" for the individual cmplcyee; that date ::hen he is first adversely affected, and ^ct the effective .-'.ate of a coordination, determines his "test period" under Section 6(C).
 -4or rules" than he had occupied earlier. The effect of the decision accordingly is that the Referee's test of worsening is the post-coordination compensation for any month compared faith the averane monthly pre-coordination compensation. Thus the Referee in effect holds that in every February, and every other

            month containing fewer working days or hours than the average number of working b days or hours in the Vrelve-month period preceding the coordination, claimant


_c was in "a worsened position in regard to compensation." The workings of the

 _ f7 month contains the sane number of working days or hours as the avera__>e nunber of working days or hours in a twelve-month period, under current generally applicable schedules. =or example, on the basis of five-day work :reek with eight holidays per year the average rcnth includes 168-2/3 work hours. An actual month of 20 work days amounts to 160 hours, 21 work days amount to 168 hours, 22 work days to 176 hours, 23 work days to 184 hours, etc. Thus, even without being affected in any way by a coordination or any other changes, an hourly or daily rated employee who continues working the same hours and days will find certain months in which his hou:s worked, and therefore his compe.isation, are less than their twelve-month average. In each of the remaining months the number of hours worked is greater than the average, and in those months the hourly or daily rated employee would ma:-:e up in earnings the deficit from the short months. But in these longer months, if a monthly-rated employee is under consideration the formula in Section 6(c) would require additional nay because more hours are worked for the same compensation. Thus if the formula in Section 6(c) is used as the test of "worsened position," even if there is no change in rate paid or hours worked a make-up allowance would be required for some employees every month; for hourly and daily rated employees in the shorter-than-average months and for monthly rated employees in the longer. Section 6(c) by its terms sets up the "displacement allowance" which is to be paid if the employee is eligible therefor; it is inappropriate for use as a test to determine whether the allowance is payable, and was not so intended.

 c The carrier 'embers made clear to the Referee that if it had been deter-.fined that an employee had been placed in a worse position with respect to compensation and he had otherwise ualified under Section 6(a), the displacement allowance payable under Section 6(c) would inevitably result in increasing his compensation during the protected period over his compensation during the test period, because Section 6(c) makes no provision for offsetting the long months against short ones; they stated that they did not take issue with this effect of the operation of Section 6(c) as a remedy for the employee wr.o had been found to be in worse position and otherwise e=iible for a displacencr:t allowance. They made clear that their objection r=n s^ecific211y to the uze of the Section 6(c) fornula as the test of worsened position with respect to cc-:=_nsation rather than solely (as the agreement providaS) as the remedy for such worsened position. They made clear that their objection ran to situations in which the terms of tile ';!ashington Job Protection A_rcemcnt had r.; tbeen modified by an irplementin, agreement; in Encket 62) ',~o which the Refer= has many tir:=s referred, the Referees ruling may have beer. defonsiblc in t!-.e s-i~,:a of certain modifications which in that case had been made cy 'he i::ple:-e:air:~ agreer_:~r:t.
                                5-

    calendar alone are such that this test is invalid, but for other reasons as well (details of which would unduly burden this statement) an employee may be in even a better position with respect to compensation and yet have impaired earnings in some months. In a number of cases in addition to Docket 131 the Referee has used the same erroneous approach to determine whether an employee had been "adversely affected" or "placed in a worse position with respect to cenpensation": Lockets 103, 715, 121, 137, and especially 138 (as to which see note (d) below).

    3. Such placement in a worse position must have been "as a result of such coordination." The Referee has observed the third requirement, but his distortion of the second requirement has resulted in a distortion of the third as well. In Locket 108 he refers to his "ruling (see Docket No. 103) that there must be a showing that the lowered earnings are due to the coordination." Perhaps more accurately, in Locket 121, referring to his earlier decision in Docket 62, he words it this way: t1unless the carrier makes an affirmative shoring that the diminished compensation stems from a cause other than the coordination." The Referee has thus set up his own comparison-of-compensation test not called for by the Agreement, and has imposed on t* railroads the burden of overcoming it. A number of cases before him clearly demonstrate that it is readily possible for a claimant to show, by such independent evidence as displacement from one job to another resulting from coordinaAcn, or loss of work pertinent to a position as result of a coordination, that he has been placed in a worse position as result of the coordination: see Docket 105, in which such a showing was made (or so


i
    the Referee ruled), and Locket 138 in which the parties had agreed that such

_d a showing should be made as part of a claim. Section 6(a) does not relieve an employee, seeking to establish eligibility for the protection afforded through Section. 6(c), to show (at least in a prima facie way) that his having been placed in a worse position with respect to compensation was as a result of the coordination., and there is no basis for making that factor an assumption in every case and imposing on the railroads the burden of disproving it.

          lt. An employee must be "unable in the normal exercise of his

seniority ri--hts" and without making "a change is residence" "to obtain a position producing connensation equal to or exceeding the compensation of the position held by him at the time of the particular coordination." The Referees treatment of the fourth requirement is doubly indefensible. In a single decision he appears to wipe it out of the agreement, but makes clear that if left in the agreement so far as he is concerned it is meaningless. (a) In Docket 121 claimants were assigned to positions following the coordination which carried the same rates and hours as their pre-coordination positions. No other work (overtime or the like) was in any way involved in those positions either before or after the coordination. Admittedly, following the coordination (but for reasons only tenuously related to it) they had less opportunity for work on higher-rated positions for which they were in line by virtue of seniority. The carrier members pointed to this fourth

 _d n Locket i3,C the Referee went to extraordinary lengths to negate this requirement. the claimant in that case had enjoyed an increase in his rate of nay and his corr.pcnsation, except of course for one or t:;o short months which contained fewer than the a:,era=a n=b=r of working !:ours. He lost no collateral job oppertanities and could not possibly have been held to have been "placed in a worse position ~·ith resrect to compensation." The Referee nevertheless held ti :at "in order ;,o deter:.ine -hethcr ho is adversely affected the employee continued in service r·sst know his test period earn inks," and as such earning_- had not b=een furnishcd it was r..A nece-sr.· for him to prove that he had beer. placed in a worse position with respect to cor.pansation as a result of the coordination.
        requirement - that to be eligible for a displacement allowance an employee must be "unable in the normal exercise of his seniority rights * * to obtain a position producing compensation equal to or exceeding the compensation of the position held by him at the time of the particular coordination.'' In his printed decision, the Referee refers to this as "a more subtle argument" and an "ingenious reading [which] seeks to overcome the basic guarantee set forth in Section 6." There was nothing subtle either about the ar;ument or -about the language of Section 6(a); the ingenuity lies on the part of the Referee in reading it out of that section - and in reading


        into the section a "basic guarantee" for those who do not meet its

        i~ requirements.

        Even more indefensible is the Referee's action in closing his eyes to this requirement in Docket 136, in which an employee after the coordination enjoyed a Job at-a higher rate of pay and full hours and work opportunities. (b) Having thus disparaged this fourth requirement, the Referee proceeds to-emasculate it by holding, in effect, that any and all compensation to an employee is "compensation of the position.' First he refers-to his holding in Docket 62, e,hich the carrier members made clear they accepted in the context of that docket; "compensation of the position'' is not necessarily limited to the product of the rate of ?ay of the oosition times its assigned hours, but may include pay for other work involved with the oosit!.on.


        Specifically tie there stated: -

"Certain jobs nor,ally involve overtime, e.g. for a sixth day's work when an unassigned erployee is not availat.le for usual and recurrent, or at least frequent overtime on given days. Such overtime at prer:ium pay is desired and considered a perquisite of the position." Plow the Referee goes further and holds that not only work which is "a perquisite of the position," but also work which is the fruit of an employee's seniority, nay be considered "compensation of the position":
 "In Docket .do. 62 the illustration (and it was only an illustration, not a liri,~ing holdin.g) was of overtime on the same position, 2.rt it is also commonplace for position holders to obtain extra work either in the same or a related classification (e.g. as here where Telegraphers also qualify as Dispatchers acrd work in both classifications)." The carrier members of the Section 13 Co^umittee pointed out that they did not regard the "illustration" in Docket 62 as "only an illustration, not 31i.T.iting holding"; it was the specific situation involved in that docket, and they made this clear to the Referee. The language above, quoted from Docket 121, that position holders"obtain extra work either in the same or a related classification," simply cannot be reconciled with the words "compensation of the position held by him" in Section 6(a). The Referee also ignored or distorted other provisions of Section 6 of the Agreement as follows: 1. Adverse effect resultin; from other causes. In several dockets the Referee ruled that in applying Section 6(c) that it is not proper to take account of conditions not related to the coordination which, after t`.e e:nloyee's eligibility for a displacement allowance h-.d been eStsbiished, served further to reduce his compensation. ~.~;:ile Scctior: 6 (c) does not make specific provision
 1 9

      for reduction of a displacement allowance to take account of such matters as subsequent sharp or temporary declines in traffic, Section 1 does so, and the decision of the Section 13 Committee in Docket 17 specifically sactioned it, a decision made without a referee. The effect of the decision in Docket 17 was explained to the Referee, not only orally but in writing, but he has pretended an inability to understand it. The Referees action in Dockets 125, 129 and 139 overruled the longstandino precedent in Docket 17 in this respect and distorted the intent of the parties to the Agreement.

      2. Protection not to exceed five years. Section 6(a) contains other language which was placed in issue before the Referee but disregarded in his decisions. The protected period as defined in Section 6(a) is "a period not exceeding five years following the effective date of such coordination." Docket 133 involved the words "not exceeding" in that phrase. The procedure followed in deciding that docket was extraordinary, to say the least. The Referee first indicated to the Committee he would decide in that case that the protected period was a certain period less than five years; later he reversed himself on the basis of a presentation made in an entirely different proceeding in which the carrier members of the Section 13 Committee had no part:4 The issue was reargued in an executive session of the Section 13 Co^mittee, and the barrier members explained their reasoning and their views as to the applicability of the "not exceeding" language, but the extent to w~ich the Referee closed his mind to his earlier views is reflected in the fact that his decision does not even disclose the basis of the carrier members) ar3ument. As a result, so far as holdings by this Referee are concerned tI-e wors "not exceeding" m·ght as well not be in the agreement.

A, - 10 -
      3. The extra and furlouzhed issue. A number of cases in this Referee's assignment involve what he has termed "the extra issue" - the matter of whether the protection of Sections 6 and 7 extends to employees working from extra lists or extra boards or furloughed lists. Although there had been some uncertainty as result of earlier decisions as to the application of Section 6 to extra employees, it was clear that it applied to only those employees who were "continued in service," the first of the four requirements listed above. The Referee has now interpreted "Section 6 to be available to all categories of extra and furloughed employees (there is no contention that they are not 'employees') when they otherwise establish eligibility under these provisions.' The Referee's discussion in Docket 108 preceding that ruling (the issue is not directly involved in that case) has done little to clarify the issue. The matter has been made worse by the Referee's ruling that test period comparisons may be used to determine whether an employee has been placed in a worse position with respect to compensation, discussed above in connection with the second reauirement of Section 6(a). The result of this ruling has been to extend to employees who had been extra or furloughed prior to a coordination (and for reasons not related to the coordination) -PArotection beyond any granted by or to be inferred from the Washington Job Protection Agreement. From this the carrier members vigorously dissent. This holding affects the decisions in Dockets 115, 127, 135, 137, 139 and 141, and is referred to in Docket 121.


                        II. Remedies Awarded

      The Referee has rendered decisions in a number of cases on matters which were not before him. In other cases he has awarded remedies which are

- 11 - not supported by any provisions of the T:lashington Job Protection Agreement. In some of these cases, the very fact of violation of the Washington Job Protection Agreement which he found to exist and to call for a remedy is traceable directly to the confusion caused by his earlier conflicting decisions and does not reflect any failure of a railroad to follow the understood provisions of the Washington Job Protection Agreement.
 1. Decision net responsive to question submitted. The decision in . Docket 127 is not responsive to the question presented but decides another question. The question presented was whether claimants should be paid Section 6 displacement allowances "in those protected period months in which they perform service-" implicitly it recognized applicability of Section 7 in other months. The decision is that claimants "are eligible for Section 6 benefits,'' which the Referee made clear meant that they came under all of the nrovisions of Section 6 end none of the provisions of Section 7. Complete lack of understandin` of the fundamental differences between Section 6 and Section 7 is reflected in this decision.
 2. Remedies eratuitouslv awarded. In Docket 122 the sole question presented was whether the railroad had violated the Washington Job Protection Agreement. The-question does not raise any issue calling for assessment of remedy if violation is found. Evidently a finding of violation was all that the petitioning party desired. Yet the Referee not only found a violztion, he went further and directed the railroad to make certain payments. The discussion below, in connection with Docket 106, of the inappropriateness of payments directed is applicable also to this case.
 In several cases the claim presented was that the Washington Job Protection Agreerent had been violated and that the railroad should now be

                    z

' - 12 -

      required to apply all of its terms to the coordination involved. (As noted

      above, Docket 122 presented only the first element - it did not ask for any

      remedy. Typically these cases involve question as to whether a specific

      situation in fact constituted a coordination within the meaning of the Washing

      ton Jo:-, Protection Agreement.) Illustrative of these cases are Dockets 106 and

      128. The Referee had Trade two prior decisions in cases which were essentially

      indistinguishable from each other and from this one, but those decisions were

      opposites. In reliance upon its views of the provisions of the Washington Job

      Protection Agreement, as confirmed by this referee in one of his earlier

      decisions, in these Dockets the railroad proceeded on the premise that there had

      been no coordinatioc.. But the Referee followed the other decision, and decided


- that there had been a coordination and that the Washington Job Protection

      Agreement had been violated.

      No monetary claim was before the Referee in Dockets 106 and 128 - only claims that the railroad be required to apply all the terms and conditions of the Washington Job Protection Agreement. Nevertheless the Referee has directed the railroads to pay back-pay to employees involved, on a basis which is totally without support in the I-'ashington,Arreement. This error is compounded by-$nwarranted reference to the question of violation of the "rules agreement" which far exceeds the bounds of reasonable dictum. Although admittedly not as!ced to determine whether there had been a rules violation, and in the face of a complete absence of any evidence in that connection, the Referee expresses considerable opinion in this respect. Apparently he is attempting to justify a basis for compensation which cannot be found in any provision of the lda;:hington A;reement.

_,1~ .. 13
    Some of the specific examples of misstatement and excess of authority by the Referee appear at pages 7, 8 and 9 of the Opinion in Docket 106.


                On page 7 he states:


        "A shift of work from em?loyes of one carrier to those of another carrier by outright transfar or combination without observance of the Washington Agreement procedures would violate not only the Washington Agreement but--"T~f "

    It is not necessarily true that such a transfer violates the 6:ashington Agreement and the statement may be characterized as a reckless generalization which, even if correct, does not prescribe compensation.

    Further at page 7 the broad statement is made to the effect that scope rules in this industry "commonly" have the effect of conferring "job ownership" in certain covered categories of work. No proper basis exists for

    -- such statement and again it appears the Referee is seeking some means to justify his decision on compensation.

    His reference at page 8 to the National Railroad Adjustment Board and what it probably would do with respect to rules violations is pure dicta, having nothing whatsoever to do with the Washington Agreement.

    The Referee offers his philosophy on the law as related to splitting a cause of action and stresses the right of tie claimants to engage in separate and distinct proceedings before two different forums as a result of the same action. With this we do not quarrel; however, we believe it should stop there. Not so the Referee. At page 8 he asserts:


    "Claimants seeking recorpense for alleged violation of the rules agrec::ent are apparently barred from a consideration of their claims on their merits only because the same set of events gave rise to a clair of violation of the !::ashington Agreement." He indicates further that the claimants should be afforded whatever remedy the ':;as:dngton Agre-meat can give; that their relief comes not from violations of a rules agree-icnt but must be based on violation of the Washington Agree,°cnt.


                                      .

                              14

    Then, he decides that claimants are entitled to the difference between their actual earnings from the Carrier and what they would have received if the coordination had not been put into effect until the procedures of the Washington Agreement are followed. He reasons the claimants are entitled to that relief because the Adjustment Hoard did not grant a compensation a·,ard in connection with a rules violation claim. -.L In effect the Referee is granting a remedy for a rules violation and not compensation provided by the :Washington Agreement.

    The Referee agrees that Sections 6 and 7 accord the compensatory benefits which the ~;;ashington Agreement provides, but insists that they are independent of a breach of that Agreement and that the carrier must pay separately and in sore other manner if the Agreement is breached. Regardless of what he might do if he were serving on sorr.e other tribunal, he has no authority to award such a remedy while he is serving under Section 13 of the Washington Agreement.

    The Referee also erred when he embellished the damages erroneously awarded by including "fringe benefits and improvements in pay and fringes." Clearly this approach exceeds the basic provision and intent of the Washington Agreement iith respect to protective payments which may accrue to individuals adverse-y affected by a bona fide coordination. If a compensatory award were


            r.c

    proper and justified, the most that should have been done here was to reconstruct ::hat would have occurred had notice of a coordination been served in January of 1962.


_e This :;a3 not a factor in Docket 128. ·?o case involving the situation there
 presented :.as ever been before the Adjustment Board. The Referee holds in
 Docket 128 that "the disposition cf this case is governed by Locket No. 68
 and Do c:: ::t :'o. 106." The claim in Docket 128 is substantially the same as
 the clam in Locket 63 (as well ~:s in Dcckat 106). :'evertheless, having in
 Docket 10%~ ~·;:=rded :-.,rages for ,:'hit he supposes to have been a violation of
 the rL_1es ~r~-:~n`, c~a as to ;:.~ch the Adjustment '-)ard pointc,'ly did
 not rule, ti:, i'.i~1':_awards ttl:G 5=,-e dam.··=cs 1n DOCi;Lt 128 4:iLhOUt m^.kiroZ
 any pry t::-,:>~ of re-eccilin- such zward -,rite his earlier action in Dock·-ot 68.
                          15"

Further e·:idence that the Referee exceeded his authority and clearly intended to levy punitive damages against the carrier rather than to award affected employees that to which they might be entitled under the 11ashinoton Agreer,e-.t is found in the section entitled "Affirmative Orders Directing Observance of Sections 4 and 5."
 We think the Referee is inconsistent in his attempt to justify his conclusion. Additionally, he has failed to cite a pro;;er basis in the Washington agreement to support the decision on compensation.
 3: Affirmative Orders Dzrec~inObservance of Sections 4 and 5. The-award made in Docket 106 is clearly excessive. The Referee says the carrier must make employees affected by the closing of the City Ticket Office whole by payment in full of back wages (including increases and fringe benefits; with deduction of other earnings "until Section 4 Notices are served and a Section 5 Implementing Agreement is achieved." Such a payment dating from January 1, 1962 until some future date when an Implementing Agreement may be reached with the Organization is ceyond all reason. It is contrary to accepted principles of compensation for breach of contract, and is incon-, sistent ..-ith the Leferee's decision that the protective period in this instance should run foSfive years to ilarch 31, 1967. Certainly t~:ere is no proper basis for requiring the carrier to pay anytring beyond a protective period. The 'r:ashington Agreement makes no provision for payment of benefits in excess of a five year period. To assess damages of full wages from January 1, 1962 until the carrier now serves the necessary notices and an implementing agreement is reached is far in excess of any recognized principles for damages.
 This Referee from his experience on this Cor~mittee is cert=inly a,,-rare of ti:e i!%prel:a'~111ty if not tie i-.,~Ossiblllty of as t::alG^._ntir.~ 3j~rc:~:':C'it
 .. 16 - being consummated. He indicates that likelihood by noting that eventually the Co=ittee could write such an agreement for the parties.
 Reasonably and logically, if a monetary award were proper and justified, the most compensation that could be allowed affected employees should to on the basis of a reconstruction of what would have happened under the Washington Agreement had it been applied. The positions of affected employes would have been maintained during the perioa of notice and the negotiation. of an i=^plementing agreement (not to exceed ninety days) and thereafter those employees would have received the benefits of Sections 6, 7, etc. of the Agreement in accordance with their compensation and service as of that time.
 The Referee himself states that if agreement procedures had beet followed, lesser amounts would have been payable to affected employees. If this be the case, then what is the basis for awarding more? He also holds that the aim here is compensation, not punishment. Again there is inconsistency, for more is prescribed than the Washington Agreement provides for affected employees. The Carrier is being punished not for its refusal, as the Referee indicates, to apply the Washington Agreement but because it did not become aware until after four years that a coordination had been effected. The Carrier did not "refuse" to apply the Washington Agreement. Failure to comply with -ttte terms of an Agreement, in circumstances wherein there is serious question as to its application, and particularly where the carrier is satisfied that the Agreement does not apply, cannot fairly be characterized as a deliberate refusal. Actually, the Referee himself was responsible for the situation in this res7ect for he had ruled one way in Docket No. 56 and the opposite in Docket ::e. 68, thus placing the Carrier in a position where it had to make a choice..
 Inasmuch as the Referce Held that disposition of Docket No. 128 was governei by Locket 1'o. 63 and L`.icket :!o. 106, these remarks apply equally to
      17 - the Findings and Decision in Docket i!o. 128. They apply also to paragraph 2 of the decision in Docket .do. 122, which as stated above was completely gratuitous. They also apply to Docket numbers 1110, 111, and 112. III. Implementing Agreements

      In three cases in which the parties had. reached implementing agreements (which under Section 13 the Referee is empowered to interpret) the Referee's determinations indicate that he has followed his own views as to how matters should be handled, rather than .z,'hat the agreements provided.

      Two of these cases have been commented on a'.)ove in connection with Segtion 6. Both of them involve the same agreement, which requires that when an employee is "displaced or deprived of employment" test period computations under Section 6 will be made. '

      In one of these cases (Docket 138) the claimant had been displaced within the meaning of the implementing agreement, wherefore a test period was determined and the railroad was obligated to furnish his test period earnings. It did not do so. As discussed above (Footnote d on page 6) the Referee used this failure to furnish information as the basis for excusing claimant from submitting his claim on the form provided, as the implementing agreement required, orgven in form which would include all relevant information ineluding the basis for his claim. The Claimant had s=cured a higher-rated position and made core money (except in one or two short months); he was not, by any stretch of the imagination, "placed as a result of such coordination in a worse position with respect to compensation." Tae six paragraphs of the


      Referee's discussion identified in his footnote 1 are completely irrelevant

      -w to any issue raised in that case.

- In the other case, Docket 131, the claimant had not been "displaced" within the meaning of that word in either the 4Jashinoton Job Protection Agreement, the implementing agreement or the schedule agreement. Accordingly no test period could. have been postulated, and no "test period averages" could have been computed. In excoriating the railroad for "withholdrinpJ test period information where it decides there is no eligibility for benefits" (an issue not involved in this case;, the Referee injected an issue which was never argued before the Committee. The statement on page 5 of his decision that the railroad's argument, which was that no test period earnings need be computed because claimant was not displaced, "proves too much because i, would remove from the protection of the agreement * ;e * those whose jobs are abolished" demonstrates that the Referee failed even to realize the provision of the implementing agreement under which the issue arose: the same provision required test period averages to be furnished when an employee was either displaced or "deprived of employ.-:ent."
 The remaining case in this category, in which the Referee followed his ovn views as to how matters slaould be handled rather than what the parties to implementing_agreements had themselves agreed upon, is Docket 115, in which the Referee held that because there had been a coordination in which the railroad had introduced "economies which reduced work opportunities" an employee had been adversely affected by the coordination. The implementing agreement in that .case had the purpose and intended effect of allocating among the employees on the respective portions of merged railroad such work opportunities as were available at any traffic level; it was entered into in contemplation of the only "economy" involved, uhich ::as the use by the merged railroad of the more
 19 favorable grade provided in a certain territory by c::e of the two former railroads. The parties themselves had devised the work allocation for.msla as the means for caring for this operating arrangement and thereby preserving to employees of the two former railroads their appropriate shares of work at whatever traffic level ensued. Ample evidence of a decline in traffic was before the Referee, and it was this decline in traffic which through the operation of the seniority system had resulted in the claimant being adversely affected. The Referees holding, in the face of the allocation provisions of the implementing agreement, that the coordination had placed the claimant in a worse position, goes far to destroy the value and effectiveness of implementing agreements and works to the detriment of employees as well as the railroads.

        IV. Juri3diction - Subordination To The interstate Commerce Act

In Dockets 1110, 111 and 142, the Referee, in addition to misinterpreting the Agreement with respect to the scope of its coverage and permissable remedies, has flagrantly misconstrued the law, as established by the Interstate Commerce Act and decisions of the Federal courts and the Interstate Commerce Commission, which (a) oust this Committee from jurisdiction and (b) relieve the. carriers of the legal restraints of the Agreement. Compounding these errors of substantive larr, he has denied the carriers fair opportunity to present the facts and has based his findin-s and conclusions upon allegations shoran to be false. His attempted usurpation of unlawful jurisdiction, his repeated abuses of his discretion, his capricious perversions of the Interstate Commerce Act and decisions of the F-decal courts and the Interstate Comfnerce Com.-ussion, as well as of the A.o=eement, and his arbitrary denial of a fair hearing have renderec.
 - 20 - his purported "awards" in these cases unenforceable as to the immediate parties and valueless as precedents. Of more general importance to the Industry, and ultimately to the organizations as well, the effectiveness of this Committee in resolving disputes will soon be destroyed, if its decisions are reached and its proceedings conducted in the manner of these

 three cases. -
 The cases arose out of coordinations incidental to an acquisition of control of one carrier by another, pursuant to authority of an Order of the Interstate Commerce ComrUssion, Section 5(ll) of the Interstate Commerce Act provides that such an Order of approval by the Commission is "exclusive and plenary" and that the parties are relieved from all legal restraints against compliance with the conditions set forth in such order. It was shoran that the courts have consistently held that these provisions overcome contractual as well as statutory obstacles to compliance, including obstacles found in employer-employee statutes and agreements_9 The Corrnission's order prescribed a specific code of conditions to govern the adverse affect of the transaction upon employees, including arbitration procedures for the. settlement of all disputes< At the request of the organizations, the Comission'sOrder provided that those arbitration procedures were to be "mandatory" - i.e., exclusive - and declared that this was done for the specific purpose of preventing resort to 59 13 of the Washington Agreement for

 Sea, e.r. Scl-_;rs'oac er v. United States, 314 U.S. 132, 200-201; Texas v. United
 Sta' :., _92 U.S. ,L"2,2, i33-33-.: i_i:c_n tv .Ci-.-i l::crop.-nutic sDoard ,20 4r .2 d20
 ,2~C1r .2) ;c~-'t .don .114 7'J :;;266 ;Ct~-.3rnGC ct of LCCO::^t).V e_n^_.^ecr sv.
 Oi; ,,., ~_n d - -;~r. ,g.;~;r ;·Co~.,nT~· 111~ dT~'Zry-113 07ir .7

                                                    )C~·: :C_'1 .377 ·U. S.'ji.


                    s i

                            _ zl _


settlement of disputes.h The Order was upheld by the Federal courts in all respects, except for a remand to the Commission to determine whether H4, 5, and 9 of the Agreement were to be included or excluded from the Commission's conditions. A dispute arose when the carriers consummated the transaction and completed the coordinations which had been proposed to the Commission, without first observing the requirements of H 4 or 5 of the Washington Agreement, neither of which was mentioned in the code of conditions. When the organizations resorted to this Committee for enforcement of those requirements, rather than the mandatory arbitration procedures which had been ordered by the Commission at the organizations' request, the carriers challenged the Committee's ,jurisdiction.
 In direct violation of the Commission's Order making its own arbitration procedures mandatory for the settlement of all disputes, and of the statutory provisicr:s and judicial decisions giving Interstate Commerce Commission Orders precedence over all conflicting legal obstacles and restraints, the Referee has upheld this Committee's jurisdiction and attempted to apply H 4 and 5 of the Agreement without awaiting determination by the Commission in compliance with the Supreme Court's Order. The tortuous mutilation of plain English and niswlicatlon of the law by which he has reached his conclusions attest to their lack of validity.

 h_ The Commission said: 'The possibility also exists that a carrier will refuse to accept arbitration procedures under Paragrarh 8 and require employees to invoke the prcvisions of Section 13 of the ',l ashington Agreement, which involves a permanent committee .:hose decisions may be subject to protracted delays if a claim is :-,ode. In uur opinion, fairness and equity require adoption . . . of the condition urged by the issues with respect to arbitration, which will make mandator; the subn'_;sion to binding arbitration of the disputes not settled by agreement between the carrier and the erployee." 317 1. C. C. 557, at 566.

                        y,

'"~ - z z -
 First, he has ruled that the Commission's Order does not mean what it plainly says, holding that the language making the Commission's procedures "mandatory" was merely an expression of opinion that those procedures are "superior," not a proscription of the substitute procedure of 913. Enforceable awards of this Coarittee cannot rest upon such complete distortion of plain English, irrespective of whether the distortion is deliberate or the result of carlessness or inability to understand.
 The main thrust of the Referee's ruling, however, is that the Commission is powerless to oust the .£113 Committee from jurisdiction, or to prescri-be conditions superseding the provisions of the Agreement, "if it wanted to." Throughout his report he has refused to accept the fact that the Interstate Commerce Act is the supreme law of the land governing the benefits and protections to be accorded employees affected by the unification transaction approved by the Interstate Commerce Commission, and that that Act gives Orders of the Interstate Commerce Commission respecting such matters the full force of the statute. He has attempted to overcome the plain language of §35(11) of the Act making the Commission's orders "exclusive and plenary" and relieving the parties of all conflicting legal obstacles to compliance with its conditions, by resorting to _Ueculation that if the language of that Section had been intended to mean what it clearly says, "it would have meant a major legislative battle" over its enactment in 1940, and that "it staggers the imagination that so radical a change eras in fact meant and made ,.,ithout anyone noticing at the time." His attempt is unsupportable in either law or fact. Statutory language, like 55(11), t·hich is clear and unambiguous on its face does not permit resort to extraneous ratters of speculation concerning a hidden contrary intent. Voreover, subjective speculation as to how much legislative opposition there would Nave been if the statute r.eant what it clc-arly says is not a reasonable
 - 23 - basis for-construing the statute contrary to its language. In addition to its legal invalidity, the Referee's entire factual premise for his speculation is false. The pertinent provisions of 95(11) did not make a "radical change," but on the contrary had been in effect in one sub-section or another of §5 since 1920 and were merely re-designated as sub-section (11) in the Transportation Act of 1940.
 Like others before him, the Referee has attempted to shrink the broad, unrestricted operation of §5(11) to "corporate anti-trust and state and local regulatory laws," an effort which has forced him to disregard, brush aside or mutilate the language of the statute, as well as express pronouncements of the Federal courts to the contrary. The specific holding in Brotherhood of Locomotive Engineers v. Chicago and North Western Railway Company, 314 F. 2d 424, 432, (based upon an analogous ruling in Texas v. United States, 292 U.S. 522, 534) that there was no express or implied exception from the operative provisions of §5(11) of the Railway Labor Act, he has attempted to brush aside as "not persuasive." The principle established in Texas v. United States, supra, and Schwabacher v . United States, supra, that §5(11) operates to relieve contractual as well as statutory restrictions, the Referee has attempted to dismiss as "A*dly apposite," apparently upon the erroneous assumption that 35(11) somehow silently distinguishes between private contracts between employer and employees on the one hand, and private contracts on the other, in so far as the exclusive and plenary power of the Interstate Commerce Commission is concerned. Such disregard for legal principles and specific rulings by the Supreme Court and other Federal courts cannot serve as the basis for a valid decision of this private Cccmittee.
 f" - 24
    In attempting to distinguish between Kent v. Civil Aeronautics Board, supra, and Brotherhood of Locomotive Engineers v. Chicago & North Western Riil:rsy Co.. supra, in which the courts of appeals expressly held the power of the Civil Aeronautics Board and the Interstate Commerce Commission, respectively, to override labor-management agreements, as part of their authority to regulate mergers, the Referee has resorted to double distortion of the last sentence of 5§5(2) (f) of the Interstate Cormerce Act, in addition to the mutilation of §5(11). First he has ruled that in specifically granting exemption to agreements entered into subsequent to the enactment of 995(2) (f), the sentence thereby granted equal exemption to the Washington Agreement, executed prior to such enactment. As any student of law, or even of English, should know, the effect was just the opposite. When Congress specifically confined its grant of exemption to subsequent agreements, it unquestionably intended a different rule for prior agreements. If it had intended the exemption to also apply to prior agreements, there would have been no occasion to mention subsequent agreements - it would have applied to all agreements. Moreover, under the Referees interpretation of the exemption as also applying to the Washington Agreement there would have been little if any reason for lke statute to authorize the Commission to prescribe any employee conditions, since substantially all railroads and substantially all employee organizations were parties to the Washington Agreement. In fact, the Referee's interpretation would unquestionably be unacceptable to the organizations themselves because its obvious effect would be that the Washington Agreement would take precedence over arty conditions the Commission might prescribe under 995(2) (f) in every case, and thereby always substitute the less generous compematory provisions of the Agreement for the more generous compensatory

                          _25-


provisions of 995(2) (f). Since the exemption of the last sentence of 55(2)(f) thus does not apply to the Washington Agreement, the Referees attempted distinction of the Kent case as not involving a statute exempting private agreements, is seen to be meaningless - these dockets likewise do not involve an exempted private agreement.
 The Referee has compounded his misunderstanding of the last sentence of the Section by misconstruing it as merely providing for "co-existence" between Commission Orders and 95(2)(f) agreements. His construction is legally erroneous and operationally impractical, particularly as related to the Washington Agreement, the provisions of which conflict with the Corissionts conditions in substantially every respect. The sentence grants an exemption., and its legality as well as its practical effect, long recognized by the Commission, is that agreements coming within its legal limitations supersede any conflicting set of conditions which the Commission may prescribe. In fact, where such agreements are grade prior to the CormissionIs decision, the Commission frequently refrains from prescribing conditions concerning the employees covered by such agreements. To say that the conditions prescribed

 by the Commission must "co-exist" with Agreements conflicting therewith would
 .s be to permit semantics to produce a nonsensical, chaotic, and self frustrating result. It cannot be presumed that the Congress intended such results. One or the other must take precedence. The only sensible reading of 50995(11) and 5(2) (f) is that the Co r.2issionls conditions shall be exclusive and plenary and take precedence over all other arrangements for the protection of interests of the employees affected by an approved unification, except where a specific agreement for such protection has been entered into by the carriers and employees subsequent to the enactment of 995(2) (f), in which case such Agreement shall

                      r.

- 26 - take precedence over and supersede the Commission's conditions. Thus, the Referees attempted distinction of Brotherhood of Locomotive Engineers on the ground that "no challenge to the last sentence of 95(2) (f) validating employee protective a.-reements was involved'f is meaningless - no such challenge was involved here either.
 The decision of the United States Court of Appeals in the latter case is clearly not only in point, but determinative here. The main problem before the court was whether, under 85(11), an Interstate Commerce Commission Order under '5(2) (f) governing adjustment of resulting labor disputes takes precedence over conflicting provisions in work rules and the Railway Labor Act, where the Commissionts order had adopted a stipulated set of conditions providing for compulsory arbitration. The Court held that the order takes such precedence, on the grounds of: (a) "the plain language of §5(11) conferring exclusive and plenary jurisdiction upon the Interstate Commerce Commission," ;with "no express or implied exception of the provisions of the Railway Labor Act from the operative provisions of 05(11)"g (b) the principles follo:red in the Kent case; (c) the Commissions past exercise.. with judicial approval, of its jurisdiction to settle labor disputes arising out of mergers by compulsory arbitration;i and (d) the fact that the Supreme Courts decisions in Brotherhood of Maintenance of W2y Employees v. United States, 366 U. S, 169, Rail-,.,ay Labor E_cecutivesl Association v. United States, 339 U. S. 142, , and U. S. v. Lo-.rden, 308 U. S. 225, "afford very substantial support for the view that Congress intended the Interstate Commerce Commission to have jurisdiction to prescribe the method for determining the solution of Labor problems arising directly out of approved mergers". The Referees ruling that the sentence of

 1 Arnold v. Louis-:illo P.~ L`-ish·rille R. R.(D.C. If. D. Tenn.) 180 F. Supp. (t29-435-
 4,3a Fr::i iir_~ i;__ c ::c^~'~. atern :.: Co. v. Bo,c::3n, 5 Cir. 312 F. 2d ?_A!:.
 - 27 - §5(2)(f) takes the instant cases outside the operation of the principles of that decision is untenable. The decision and the authorities cited therein clearly support the supremacy of the Commission's Order over the Washington Agreement, as to both the explicit provision ousting this Committee from jurisdiction and the implicit provisions superseding the remainder of the agreement.
 It is clear from his decision that the Referee has failed to understand the basic purpose of the Transportation Act, as expressed in §5 thereof. The Supreme Court of the United States has repeatedly declared that purpose to be to promote and facilitate railroad unifications which, like the transaction here involved are found, following public hearings, to .

 be consistent with the public interest. See County of Marin d. United States,
 l 356 U.S. 412, 416-17; Brotherhood of Maintenance of Way Employees v. United States, 366 U. S. 169, 173. Because of that basic failure and his failure to recognize the function of §5(11) in the statutory scheme for the accomplishment of that purpose, the Referee has mistakenly assumed that the Washington Agreement is the only "key which unlocks the rules preventing

 transfer and consolidation of work," and has failed to see that §5(11) is the
 s master "key," which expressly unlocks all legal restraints and obstacles to compliance with the conditions ordered by the Commission, whether found in other statutes, in the. work rules, or in the Washington Agreement itself.
 The foregoing errors have caused the Referee to misconceive the poorer of the Interstate Commerce Commission, to misconceive his jurisdiction in direct violation of the Commission's Order specifically proscribing that jurisdiction, and to fail to see that the Cormission's prescription of a corplete, self-contained code of conditions governing benefits for employees
 - 28 - affected py the approved transaction relieved the parties from compliance with the entire code of conditions in the Agreement, which conflicts with the Commission's code in every essential. Those misconceptions have, in turn, led him into other serious errors.
 As indicated, the Interstate Commerce Commission now has under consideration, on remand from the United States Supreme Court, the question whether 6§4, S, and/or 9 of the Washington Agreement shall be included in the Commission's conditions. The Referee has erroneously ignored two important effects of that remand which strongly militate against action of any kind by this Committee and particularly any attempt by the Committee to apply H4, 5, 13 or other provisions of the Washington Agreement. In the first place, it must be remembered that the United States District Court in Railway Labor Executives' Association v. United States, supra, upheld the Commission's Order which had made no express inclusion of any provision of the Washington Agreement until after the expiration of 4 years. The Supreme Court's express limitation of the appeal and the remand to X94, 5, and 9 of the Agreement implicitly negates the inclusion of any other provisions of that Agreement. The Referee's attempted application of §36, 7 and 13 of the Agreement thus squarely conflic s with the clear implications of the Federal Court decisions.
 Second, and of equal or greater importance, is the Referee's error in attempting to apply and enforce 534 and S of that Agreement, in the face of the Supreme Court's Order to the Commission to determine whether those specific Sections shall apply. In Svitch:ren's Union v. Central of Georgia Railway, 341 F. 2d 213, 217, involving suits by some of the same organizations against the sat^e carriers, alleging the same violations of §§4 and 5 of the Washington Agreement as in these dockets, the Court of Appeals for the Fifth
 - 29 - Circuit held that it would be inappropriate even for that high Federal Court to act upon the claims in the light of that remand. The Court said:

 "No final disposition can be made of the appeal of Switchmen's Union v. Central of Georgia & Southern Railway Co. because the basis of their attack in the trial court is the Washington Agreement. **** Since, therefore, the Order here litigated has been reranded to the Commission for further consideration it would be inappropriate for this Court to proceed further in the matter until full effect has been given to the Supreme Ccurt's mandate." Although noting that these cases had been brought to his attention and that the carriers had requested him likewise to defer action upon the organizations' requests for enforcement of those same sections until the Interstate Commerce Commission had acted, the Referee has arbitrarily refused that request, declaring that if the Cormission imposes the Sections, a second ground for his decision would be provided. The carrier members of the Committee submit that this private Committee, and the Referee acting in its name, owe the Order of the Supreme Court at least as much respect as does the United States Court of Appeals. Noreaver, the Referee's announced reason for refusing the carriers' request is as unsound as it is arrogant. Under his erroneous view that no order of the Commission can supersede the application of
 the Agreement, he has ignored the possibility that the Commission's Order may
 is
 exclude the application of §§4 and S. In such event, the Commission's Order
 obviously must prevail under §5(11) of the Act. Otherwise the statute and
 the Orders of the Supreme Court and the Interstate Commerce Commission would
 have been rendered futile by the Referee's decision. Implicit in the Supreme
 Court's remand of the case to the Cersission to decide whether §§4 and 5 of
 the Washington Agreement shall apply to adverse effects upon employees
 resulting from the approved transaction, was the recog:iition that under SS(11)

 _i An identical holding ,,as ^ade in B-oth,rheod o_° Railway Clerks v. Sou'hern iail::.~r Co., 311 .. 23, 217 decided ac t't,c .."e t=:r.e.
 - 30 - of the Act such decision by the Commission will be plenary and exclusive, and will govern whether those sections apply. The Referee's holding that the sections apply regardless of what the Commission may decide was a misguided attempt at usurpation of non-existent authority.
 The Referee cites, as precedents for his assumption of jurisdiction and attempt to apply the Agreement, his own decision in Docket No. 64 and an early decision of another Referee in Docket No. 27. Apart from the fact that neither of those cases involved a Commission order expressly relieving the Commission of jurisdiction - a difference which the Referee has failed to perceive - the various subsequent decisions of the Federal Courts holding the law to be contrary to the rule followed in those dockets destroy the validity' of the latter as precedents. '
 As the Referee has indicated, the carriers appeared specially to contest the Committee's jurisdiction, in the light of (a) the order of the Commission specifically removing such jurisdiction, (b) the statute and numerous Court decisions giving precedence to the Commission orders under 35 of the Act, and, subsequently, (c) the pendency before the Commission, at the direction of the Supreme Court, of the question whether H4 or 5 of the Agreement shall-4e applicable to the employees in question. As seen, they specifically requested the Committee to defer all determinations of fact until the questions of jurisdiction and of the applicability of §§4 and 5 of the Agreement had been settled. When the Referee announced his tentative purported decision on the merits, as well as on jurisdiction, the carriers, without abandoning their position on jurisdiction or on the applicability of those sections, alleged, and submitted proof in the form of representative examples, that the "evidence" upon which the organizations' claims were exclusively based inherently failed to support the inferences which the Referee had tentatively
 - 31 - proposed to make from it. The carriers offered to present the complete facts to show the factual invalidity of the claims submitted by the organizat9.ons, and specifically requested a hearing on the facts for that purpose. The Referee, notwithstanding his protestations that default judgments are alien to the arbitration process, arbitrarily restricted the areas in which the carriers might even make written objections to his tentative decision, and denied their request for a hearing, on the grounds that they had had opportunity to present the facts at the time of their initial contest of the jurisdiction.
 One of the many advantages of the arbitration process is that its informality and flexibility facilitate the ascertainment of all the pertinent facts, as compared with more formal procedures. Hut no procedural technicality must be permitted to prevent its getting at all the facts. To deprive any party of a requested opportunity to present material facts not theretofore made available to the Committee, on the hypertechnical procedural ground that it had failed to present such facts while making its bona fide contest of the jurisdiction on bases such as were here advanced, is to abuse the arbitration process and destroy its efficiency. In taking such action in these cases, the Referee has deprived the carriers of a fair hearing and the Committee of the"lacts necessary to fair decision on the merits, wholly apart from its lack of jurisdiction.
 One of the cases (Docket No. 140) involves still another instance where the Referee has disregarded the language of the Agreement, as well as the decision of the Interstate Commerce Cermission, in favor of what he thought they should have provided - namely, protection for employees of a carrier not involved in any "coordination," as defined in the Agreement.
                            - 32 -

-Three prior decisions (Docket Nos. 51, 47, and 59 - the 1st named by the same Referee) had held that the Agreement does not cover employees of a railroad from which work is withdrawn by a second railroad and transferred to a third railroad. In Docket No. 140, the Referee has now refused to follow those precedents, on the ground of decisions of two District Courts that Section 5(2)(f) applies under certain circumstances to employees of a nonparticipating railroad from which work is withdrawn.
 His decision cannot stand. Section 5(2)(f) covers all "results" of a merger transaction. The Agreement, on the other hand, expressly limits its coverage to "coordinations," which §2(a) defines as "joint action by two or more carriers whereby they unify retc.7 their separate railroad facilities or any of the operations or services previously performed by them through such separate facilities" (emphasis supplied). No such "coordination" took place. Moreover, the employees allegedly affected were not employees of a "carrier involved" within the definition of §6(a) of the Agreement or a "carrier participating in a . . . coordination" within the meaning of 37(x). The Referee also has overlooked entirely two other facts which were called to his attention, and which conclusively destroy his ruling. First, the Interstate Commerce Commission expressly held with respect to the transaction relating to these dockets that in circumstances precisely similar to those presented in this Docket, even §5(2)(f) did not cover such employees. Southern Railway Company - Control - Central of Georgia Railway Company, 317 I. C. C. 557, 567-568. Second, on judicial review that ruling was specifically upheld by the same Federal Court which had decided the earlier case relied upon by the Referee, on the ground that the same construction placed upon its prior decision by the present Referee was untenable. Railway Labor Executives'
 - 33 - Associatitn v. United States (D. C. E. D. Va. 1964) 226 F. Supp. 521, 525. The following language of the Court in disposing of that question was equally applicable in this docket:

 "/57 Frisco's Birmingham yard is manned by Frisco employees whose seniority rosters and interchangeable assignments are intermingled with other Frisco employees whose duties have nothing to do with the yard operation. Central's withdrawal from Frisco's Birmingham yard may have been an economical loss to Frisco and some of Frisco's employees may have been affected as a result thereof, but the withdrawal does not sufficiently touch the transaction here under discussion to warrant 5(2)(f) protection. Further, it could have been unilaterally accomplished at any time on six months' notice independent of Commission approval." The Referee's decisions in these dockets have mutilated the specific limitations in the Agreement, have recklessly abandoned precedent, have misapplied judicel decisions dealing with wholly different factual situations, and have disregarded the Cormission and judicial decisions which destroy, both legally and factually, the precedents upon which he has relied. His irresponsible handling of Docket Nos. 140, 141 and 142 threaten the efficacy of the Committee. They cannot stand.

        - - - - - - - - - - - - - - - - - - - - - - - - - - - -


        The Carrier Members of the Section 13 Committee for reasons of which


            6

the above discussion is illustrative hereby record their dissent to Awards

 103; 106; 108; 115, 121; 122; 125; 127; 128; 129; 131; 133; 135; 137; 138; 139;

 140; 141, and 142.

 December 16, 1966
 THE OHIO STATE UNIVERSITY

COLLEGE OF LAW'

1659 NORTH SSSCH STREET


          COLUMBUS, OHIO 43210


Mr. ?^T. S. aczill, Chairman
 Carrier '.-:embers
 Room 474, 517 'r;est kdams Street
 Chice.xo, Illinois 60606

 Mr. G. .E. Lelrhty, Chairman
 Employee ~:embars
 3860 Lindell Boulevard
 St. Louis, 1:issouri

 Gentlemen:

 January 9, 1967

 I have received the Carrier ::embers) General Dissent. I do not deem it appropriate to respond in any detail. The RQferee who handled the assl_<-nme:t before mine may properly have decided otherwise in v=e;: of the general brevity of his opinions. ::y lon^FC and detailed opinions, which seemed aJ_Jropriate to the len3th and complexity of ;,the parties' arguments and our outual discussions, I am content to have speak for theoseives. However, a few observations do seem appropriate.

 I will never understand by w^at warrant a party to a dispute re-zards biaself as free to -Wake abusive comments when the provocation to do so is treat he failed to be persuasive. The matter is all the more uni:.tellivible 17 this setti-.S, because the cases were ;s=^sta;t?.^.~ly considered and the ar;.uments of the parties were heard at treat lenSth and repeatedly, both orally and in ::ritin;z, so as to insure that the parties bad ample o: ortunlt;; .to =reset their views and that I had ample opportunity to understand t"eir positions fully. The Comoittee's procedure insured t'.^.at all members '-ad time not only to argue initially but also to address themselves to the.proposed decisions and awards.

 It should be noted t^at the Dissent`s descriptions of the decisions is .not always acc..rate and on occasion is incom_?1ete for exam?le t!:c inco;plete quota :ion out of ccon.ext of a passas-a fro= _^5ze 7 of Del-.Cet too.

 gnat most of what was presented in the
 at'.^.er :.o_·e ir.telliz;'cly and in eve.^. the exte°ced proceedi-3s. I understood

 sometimes failed to
            i


under$ta,_::e--e the con-.1u--_o::z a _ed to nflow nfrom these

 arzument°. ~.. all of t::e 33 ~a;J'es`of tte Dissent, i find only
Suffice 1t to say Dissent ','as :)raae:.te-d , greater deta_=, during quite well t'.^.a ar3uyew
 one ao--ment which indicates any lapse on my part (the first
 full paraSraph on page 18). 3ut.the point was a very minor
 one; the argument to which it was addressed was the Carrier
 attempt to read into the protective agreement use of the
 word "displacement" the meaning of the sable term in its
 rules a7reeionW. The conclusion that the rules a,ree,--.ont .
 provision is a0dressed to a problem different from that in
 volved in coordinations remains valid. ?or some reason,
 Carrier re;~resentatives did not point out the mistake when
 the draft decision was before t'.e Committee for common
 Perhaps it is pertinent to note that after I presented
 my tentative vie,;s to the Oommiittee, the very views descanted
 upon in Who Dissent, both OrZanizations and Carriers requested
 me to cake a rulin- in Doc:tet Number 119 which otherwise went
 beyond my authority as Referee. Also it should be made clear
 that far fromlicitin;: the Carriers' opportunities to be
 heard in tae Southern cases, I initiated the request for
 -comments and evidence to be submitted by the absent Carriers
 and provided v:ee7ts of tire for their submission and, indeed,
 made additional requests and afforded additional opportunities
 "for the Carriers to submit comments and evidence. On the
 basis o= so=a o: the evidence submitted in response to my
 invitation I ruled in favor of the Carriers on some issues.
 r 11here the record v.-as inadequate to make a determination at
 this ju:cture, particular issues were left open for further
 proceed-nSs (if the parties cannot settle them).
 The broad scale attack upon many of the decisions
 obscures t::e fact that Who razor issue contested within the
 Committee, :,-hick consumed a very, large part of our time and
 attention, was the "extra issue' to which the 33 page Dissent
 allocates not quite one pa-7e. This is not to Call into
 question the ~zenuiness of Carrier representatives' disap
 pointT,ent in not _orevailin;z on many of the other points dis
 cussed In_ the Dissent. 3ut it shows how post-award controversy
 may 'faUsto resemble the actual dispute and deliberations
 preceding the award. ,
 May I take this occasion to wish you .and your colleagues
 a happy new year.
 Sinoerely~yours,
 r!(N(s il ~' · ,^'r ~L--l~ _r 11
 Merton C. 2e:nstein

        cc: National :_ediation^. 3oard

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              rr r~r~. -;n r r _

      "T 10,

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                47 Ui7~J'i;r:'.:'EiiS,E),'i':;rSS Aj:%U SIl?i%0I!El 'z0iT5


    ... :. AfL-CEO-CLC C. L. DENNIS Intcrnat~onal~res~Jcnt


                                File 469-2-11


                          Subject: Washington Job Protection Agreement -

                          Awards - Section 13 Committee


                                Circular No. 49-69


                                July 7, 1969


    ALL RAILMLD GENERAL C1IAIMEN


    Dear Sirs and Brothers:


            on June 12 Referee Dolnick handed down decisions in the

    following dockets which he had h-aard on April 29 and 30:.


    Docket Submitted

    Lo. Parties by on

    149 b 150 Brotherhood of Railroad Trainmen Union 5-10-65

    VS.

    Erie Lackawanna Railroad Company

    155 Brotherhood of Locomotive*-Firelnen Union . 8-18-65

    and Enginemen

    VS.

    Erie Lackawanna Railroad Company

    157 _ The Railroad Yardmasters of America Union 1-6-67

    vs.

    Erie Lackawanna Railroad Company

    159 6 160 Railroad Yardmasters of America Union 3-14-67

    - VS.

    Erie Lackawanna Railroad Co.

    1.63 Switchman's Union of North America Union 9-14-67

    VS.

    Southern Pacific Co,1pny and Chicago,

    Rock Is la lid and Pacific Railway Co.

    1G5 Brotherhood o: Railroad Trainmen Union 3-5-68

    v;.

    St. Louis-San lranci~%co Railroad Co.


Gft:1t;D L0:):E/I;::JT!!'_i~ii0.^.0 CUIL.D1%G - 101; V"~E STREET. CINCINNATI, OHIO 4`.:207. · TEL: 513; 721-3150
 For your information and records, I am enclosing a copy of Referee Dolnic:k's decisions in these cases. You will note that the Carrier representatives wrote a dissent in connection with Docket No. 163.

                            Sincerely and fraternally,


                            International President


cc: Grand Lode Officers
    Regional t, District Representatives'

    Organizers