- Suite 514 Beacon Building
Tulsa 1, Oklahoma
December 5, 1963
Mr. G. E. Leighty, Chairman
Section 13 Committee - Agreement May, 1936
Washington, D. C.
For Members representing participating
Organizations of Employes
c/o The Order of Railroad Telegraphers
3860 Lindell Boulevard
St. Louis 8, Missouri
Mr. W. S. Macgill, Chairman
-Section 13 Committee - Agreement May, 1936,
Washington, D. C.
For Members representing participating Carriers
c/o Bureau of Information Eastern Railways
Room 1050 - 342 Madison Avenue
New York 17, New York
Gentlemen:
I am furnishing each of you, herewith, two copies of my response to
dissents on file. Three copies are being furnished to the National Mediation
Board for the record. I do not know whether there will be any reproduction
or distribution through the offices of the National Mediation Board, but
each of you is at liberty to reproduce and make such distribution as will
serve some additional purpose, if any, in your opinion.
Very truly yours,
/s/ A. Langley Coffey
A. Langley Coffey
P. 0. Box 212
Encl. Sand Springs, Oklahoma
cc: E. C. Thompson
NOTE: Referee Coffey's response consists of 24 pages and neither adds to nor
detracts from these decisions. For these reasons the response is not
included in this document. However, copies are available upon request.
G. E. Leighty
-108-
. Agreement of May, 1936, lfaahington. D.C.
(1Yashington Job Protaction Agreunmnt)
Committee
Zstabliahod Under Section 19
Rofereoia Findings and Decialons
Dated Chicago, I11inoie, March 19,1963
(A. Langley Coffey. Referee)
DEC63
Dockets 70, 71, 73, 74,
73, 73, 79. 88, 89. . ., ;·
9o, 92, 95, 93, 99.
loo.
~:~ j'
REFEtZE RESIPONS
E x0 DISSENTS
- The learned Employee Ropresentntives of the Section 13 Committee
are on record with diasento in all but three cares where the decision
was against them. As a further display of the same vigor with which
they tried to protect me against the error they now see in the workings
of "legalistic mindal· and "mental gymaastico" that "can make white'
turn Into black", they add a general dissent.
I must continue to disagree with my most worthy and highly
respected colleaauos, for whom I leave a great deal of personal admiration. I can and will refrain, however, from being disagreeable.
RE-SUBMITTED DOCKCT
N0.70
The Committee, with aasiarance of another Referee, decided that
the proposed integration of switching service on the San Fernando
Branch.ky employee of Pacific aactric with road service performed
by Southern Pacific crows was a,coordination'' within the meaning of
Section 2(a) of the -Washington Tab Protection Agreement,
It
seemingly
made no difference to the %mployae Representatives
of the Committee that their axguxnent, on principle, for holding that
yard and road service could not be unified. consolidated, merged or
pooled in whole or part, duo to a difference to the service and a difference in rules schedules, had failed to convince the other Referee that
the separate services could not be "coordinated".
(Continued)
- 109 -
Re-Submitted D
o^ket No. 70 contid. - p. 2
The force of their argument before me was that the other
Referee erred in deciding that the Carriers' proposed integration
is a "coordination" within the moaning of Section 2(a) of the
Agreement, supra, for reaaono again assigned in the dissent.
In what I thought was a layman's language, i ruled:
"That decision is final and bidding on the
parties to thin dispute as provided in Section 13 of said Agreement."
Section ld clearly provides that the "decision of the Referee
shall be final and conclusive."
The record was road. From what I read therein, neither the
Employes, nor their Reprcoentatives, had any real interest in thq
"selection of forces from the employees of all the Carriers involved
on bases as appropriate for application in the particular case." I
urged upon the partisan members of the Committee that they agree
upon a plan if they could and allowed them time for doing so. They .
did not confer, but submitted separate papers for my attention and _
study. The Employee Representatives of the Committee offered
nothing new. They continued to argue instead:
(A) That Carriers' right to re-submit "bas no foundation
under any provision of the Washington Agreement";
(B) That Sections 4 and 5 of the Agreement of May, 1936,
Washington, D. G., do not vest authority in the Section 13 Committee
to prescribe the conditions of a particular "coordination" including
the compensation of employee required to perform the coordinated
service=
-IC) The Washington Agreement does not supersede Section 2,
Seventh, and Section 6 of the Railway Labor Act, as amended, since
,any plan of coordination would affect the seniority status and working
conditions ctf the employee affected.
I could not agree that Carriers$ re-submission was improper
when, upon "failing agreement the proper procedure is recourse to
the Section 13 Committee", as docided by the other Referee in
Docket No. 70.
Section 5 of the Washington Agreement expressly provides that
in event of failure to agree on the "assignment of employees made
neeeaoary by a coordination", then and in that event "the dispute may
(Continued)
- 110 -
Fte-Sua
anittod Docket No. 70 coat'd. - p.
be aubmittad by either party for adjustment in accordanco with
Section 13." The basic dispute was over failure of the parties to
agree on the asoi;nmant of employee. The incidence of their dispute over compensation employes retained in the service tad other
working conditions, that arm is controversy in connection with
chanaea brought
about in the "coordinated" operation, had been
covered by a Section 6 notice;
We were and are in accord that the Washington Agreement
does not take away any rights that the employes have under Section
2, Seventh and Section 6 of the Railway Labor Act, as amwsded, but
neither do wo see anything in said Washington Agreement that cou·
flictu with said Railway Labor Act. Additionally, there isn't anything In the Act for staying the application of the Washington Agroo.
meat until the parties to a dispute can reconcile their differences
in collective bargaining over rates of pay, rules and working conditions is the coordinated operation.
I do not dispute the contractual right of employes to follow
their work and participate in the "coordinated" operations, but this
doss not mean that some "employees of all the Carriers involved"
will not bo "deprived of employment as a result of said coordination:
I learn from reading the record, In the instant case, that a
critical impasse had been reached by failure of the Pacific Electric
freight crews on Pacific i:lectric San Fernando Branch to evidence
any real interest in following their work. So, is it now to be said
that Carriers' rights under the Agreement of May, 1936, Viashington,
D. C. can be defeated by inaction on the part of employee that chows
a lack of interest in following the worst and a clear refusal to agree
upon "assignment of employees made necessary by a coordination?" .
Carrier* were willing to agree but the Organisations of the employee
affected wore not and ao far as I know never have been and are not
now. Qarriors' expressed willingness for the Organizations to work
out the assignment of employes to their own satisfaction within the
bounds of said Washington Agreement
is the basis hrro for saying
that Carriers were willing to agree..
Those who speak of the Washington Job Protection Agreement
in reverent tonsa for its clarity and case of underatandin?, by men of
practical experiences thereunder failed to "cram down my throat" the
gagging morsel of thought that the kaowlsdgeabls and sophisticated
authors of paid Agreement inwnded foriit to
be "mutilated" in any
ouch way,
(Continued)
1 .
- 111 -
:Le-Sabratt--d D
nckot No. 70 cont'd. -p. 4
I decided that the partias should have another thirty days on
the property for ayrealng upon a proper basis for selection and
assignment of forces from participating Carriers, after contentions
that might have hold them apart had boon docidod by me, but, if
they continued to disajroo, the torms proposed by Carriers should
be made effective; and, any dispute over the incidence of the changes
to be later settled in accordance with the
Railway Labor Act, as
amended. In the meantime those "dnftaed employees affected by
coordination" (employes of all the Carriers involved) to have all
allowances to which entitled under the Washington Agreement.
The Carriers' proposed arrangement for selection and assign.
me:.. Of forces in this dispute might not have the Committee's sanction
in other and different circumstances, but mast be accepted here "as
appropriate for application to the
particular case." (emphasis added).
Only ono biased as between the parties could have decided the dispute
is any other way, in my studied opinion.
DOCKET NO. 90
This dissent, although proper under the broad notice that
"employee Members reserve the right to file dissents to aAy.ot the
decisions they so desire", was, nevertheless, unexpected.
The words found in the "Docialon" that "more cannot be required
c: :_._ Carriers", appear to have an offensive ring at this late date,
but vroro not mentioned as offensive at the time of adoption. Even now,
the words, used out of full context, as they are in the dissent, are
characterized in said dissent as a "bland observation", and I agree.
Obviouoly, though, more is intended. by the dissent than to quibble
over words.
The thrust of the dissent is that neither "the Section 13 Committee
or Rofereb Coffey have any vested authority to prescribe or direct the
terms or conditions of an implementing agreement under Section 5
other than the allocation of employees to participate in a coordinated
operation."
If the Section 13 Committoe, with or without a referee, is powerlees to dictate the terms of an implementing agreement other than as
atatod above, and I have no reason to say that It has that authority,
where, under the Washington Job Protection Agreement, do the
employees or their Organizations find the right to inject foreign
matters into deliberations involving the assignment of employees made
necessary by a re-arrangement or adjustment of forces in anticipation
of a coordination?
(Ccatlausd)
- I12 -
~JCi~3t
i:o. ?9 eoltr.J - p. 3
The riya;, is ray opinion, is non-existent and does not vast
anywhere or io say one un4er paid Washington Agreement.
to the instant dispute, the employees and their Craanizations
insfsta4, (sftor reaching an accord on the selection of forces, the
apaortiun:n®at ®f the work.
as
assignment of employees to that
work, as coamraplated by Sections 4 and S) that Carriers make the
concession. before putting the "coordination" into effect, that not
less than eight yard eneins assipments working seven days per
week for a period of three to five years, depending spoa agreement.
be retained in service,
I concurred in the vicars of the Carriers that this amounted to
as attarapted 1fab freeze" contrary to the,purpeses and intent of the
Vashinrton Jab Protection Agreamoat.
Recognizing. as I do, that. to connection with any anticipated
_ 19coordination". the parties thereto are free to bargain out any
differences, upon which tlwy can readily svree, without resort to
the :1aiiway Labor Act; and, seeing some practical advantags in
broadening the scope of say implementing agreement, beyond what
is required by Soctioas 4 arid 5 of said Washington Agreement, for
putting at rest all tr ooblesome questions that can be foreseen and
disposal of amicably is "ons package", I sought sot to impose upon
this freedom of choice, so long as not misused oar abuwd to defeat
the lawful objects and purposes fear first putting the "coordination"
into offact and without any restraint upon negotiations later to follow,
purou%ot to the serving of the Section 6 notice under the Railway
Labor Act, as amended. The doeis,iosl speaks for itself in all the
particulars heroin mentioned.
DCCYET
NO. 98-B
'b a
issues on, which tics Cenmaaittee, without a iteferee, dead
-04
are as stated is the Actor" Flediaga and Decision and as
repeated in. the dL$asst.
Those issues were fully beard, argued sad extensively briefed.
The evidence in the record clearly showed that, pursuant to
Section 4 notices, the pasties suet sod conferred, but could not
agree on the re.arranp,ement nod selection of forces or assignment
of employees made necessary in what Carriers alleged. and a
majority on the ComnaMso found, was s 04coordinatioa".
113
Docket :No. 93-
5 cont'd. - p. 6
Thz record further reflected that tLe Carriers' proposed
selection of forces from t5R on,ploysas of all the Carriers involved,
sand aesignmont of employees made necessary by a "coordination",
was appropriate for application in the particular case.
The Employe
htombare of the Conimittos did not seem to think
the
Committee had synthetic iaaues before it, or a biased I®farea
to "cram the works down the throat" of the employee, until they lost
the case.
"The 'Decision' of the Reforeo rendered March 19, 1963, in
Docket 98 amply speaks for itself" and I stand thereon despite any
feeling without proof to support, on the part of others whose impartiality has never been attsated or certified to. that said decision
reflects bias, prejudice and come sadistic tendencies.
DOCKET
NO. 73
tvith regrets I was unable to find a proper basis for sustaining
a "separation allowance under Section 9 of the 'Washington Agreement
of May, 1'736" without doing
what
I thought would be violence to an
agreement that all on the Committee, with or without a Referees are
duty bound to uphold in gasping
with
their individual judgments
properly exercised.
In the absence of claimant's chosen counsel, on whose advice
he obviously acted, a stirring and moving plea was made, on his
behalf, by the Zxrploye Members of the Committee, and the Vice
Chairman of the mploye Joint Conference Committee in particular.
On the basis thereof and with the concurrence of the Carrier Members
of the Committees the door wag left open for the "practically illiterate"
claimant to claim "any other protective benefits he may be able to
establish if there are others to which he can lay claim under said
agreeawat." This part of the decision was not arrived at out of
sympathy but due to some remaining uncertainty that ail of claimant's
rights had been foreclosed or extinguished on the basis of facts, of
record. The decision is just and conscionable. The Agreement just
does not support the claim at issus, however, from
what
I can find
therein.
DOCKET
NO. 92
Here is a dissent that ably demonstrates a remaining difference
of opinion on
the
merits. I congratulate the author.
(Continued) .
114 -
Docket No
. 97. ccn8'd. » p. 7
Some remote, tag-and :nor tc wnrj transferred from ono fully
coordinntod lporation to another. after pogitiono had been abolished
that owed their coutinuad exiotoaca to a vuanual operation and no
longer required at the ones "coardinatod" facility after it had been
converted to an auto:aatic opsrrtion.
I waft Plot able to
dGtaT,
miaz, ox the basis of the record, the
essential " .ar-t actin of two or more carriers whereby they unify,
consolidate, morga or
poe
or !n part in part their separate railroad
facilities or any of the opasationu or services pravloasly performed
by them through such unparate fzcilitieo." (smphasis supplied).
It coutinuoi to bs say vpiniou taut oho abolishment of three
regular and ono regular relief Operator .Levorman positions at MG
Tower was not the result of join; action of two or more Carriers for
effoctuatiny a "coordination", as the; torm is defined in Section Z(a)
of the Washington Job hrotoctiou A3reament.
DOCF
MT NO. 95
Thin case wan ably anal
a?Ullfuily
tried, argued and briefed. The
arguments in all cases on the agenda area matter of record. The
"Findingell and "Decisions" in ell docksto, the same as the "Dissents",
mutet be evaluated in terms o? the %hole record. despite any and all
7^osultina disuppolatmenta.
UaG
ION (tr. p. ZI)
"Now, the word position is something that we have got to decide
bore, just what it means with rospoct to the Washington Agreement".
ORGANIZATION tr~. p. 419
)
"$iu
whore we dicogr oe. and whore this dispute lies, is how are
the omployas asuiened to the Tologranhers' era board who were
alovsd down was place on the extra boards have these people been
affected by the coordination I That is our problem here."
CARd.1.ER (tr.
ep!R
44449M
8
"The Agveerxmnt under consideration is popularly known as the
Washin;ton Sob Protection Agroamant and this Carrier earnestly be·
liaves that if thie Committcae will canutrue the word 'position' as
msswing a job whorovo:. it to need Iu that sense in the Washington Job
Protection A greemaue, it WUI have no difficulty in svttcbing st proper
doterminafan of the question at iacua.
(Continued)
' , - 11S -
Docket No. 95 at'd. · 1~. 1!
"«'hatovor coufu5ion eaicts lies in the fact that the Organisation
hda attomptod to aubstituto rolstive place. a;tuption or standing as the
meaning of the torso 'poaitiou' whore that tyre is used in the sense of
a job. An
OMP1OYOS
relc.avo plaeu, situation or standing on a seniority
rostox is not sa job."
CA1111ER (:: , p
p' a 437, 438, 339)
"No tciugrsphor on the extra list has a position, job, with its
usual attributes of a roeular work pariod, duties, rate of
pay,
etc.
A tole araphor'a rank oa tha extra list is doterminod by his seniority
data on the roator and the seniority date remains constant irrespective
of the nuazbrnr of mcn on the extra list.
"Smith displaced no one on the extra list. H' merely placed
himself in
the slot to which his seniority entitled him. This is a
seniority ar4 not a rotary extra Uct and telegraphers thereon
are
called in seniority ardor to respond to service jobs covered by the
Telegraph©r 'o Agreement.
"Talographsrs on the extra list do got displace among themselves
except when working on jobs covered by the Agreement.
',Uador the ruloa of the Tclagrnphor's Agreement on this property
there to neither ua extra boa: d nor :.n sutra list consisting of an
accepted and eotablishnd camber of man or jobs. When a telegraphax's
job to abolichod or ha to diaplacpd in the exercise of seniority rights
and iacka s4fficiunt ooniority to obtain and retain another regular fob,
he reverts to the
extra list.
"ha may continue thereon indefinitely provided a period of ninety
consecutive days does not alaapeo botwoen his service on jots covered
by theldrosmant, and ouch a situation rarely
occurs."
ORG
Arr12ATICIN ttr.. pp's 420, 4210 4:)
"Now; on Novombor 13, 1961, our man Smith reverted to the
TelearapbersI extra board, and he is rrcelvina a displaeoment nllowauce. There were six
man aa"anod
to the Telegrapherst extra board
at that time, There was only one rnrus on the board senior to htra.
"That meant that when he reverted to the extra board there were
five eon below him on that board, junior to Mr. Smith.
(Coatinucid)
- 116 -
Docket No. 9!
' onrld: - p. '3
"NOW,
the rule govcrauaw the urea of satra board men on this
property is Rule 3(aj. which I
Yaill
quote.
'Temporary vacancies will be filled by the oldest
idle eatra omployo.is, provided an
o:ctra ernployes
cannot clalfn extra work 4t excess of
40
hours in
his work weak, Sf arothcr extra employee who
has had loss than 40 hours in his work week is
cvailahlo, except chat is :illin&
the assignmaut of
a regular employco ho may continue thereon,
asbfoct to other provinious of this paragraph 3,
with raspoct to
ro:oxaon of
.2a
assignment by
extra omploycoa. When as axtra amployae
takes the asaigurneat of n regular employee, he
aeaumas the
conditions of such assignment,
inc:ludlnrs the work week and root days thereof.
"That in a nutshell moans that extra employees on the Frisco
Railroad are uoed in accordance with their seniority.
Isla other words, those people have a position on the extra board,
the oldest raga, the tsext, the third anal so on down.
"As the work becomeu available
the senior idle extra employee
on that list is wood. ha has a preference for the work as it becomes
available.
"If, for example. in this case there were six men on the extra
board. If two w"ks work became available, the senior man became
eligible for thin wor!4 sad he would perform it. At the completion of
this assignment ho returns to the extra work board and there is no
other work.
""He again is first out on that extra board because he is the sealer
employee assigned to that hoard.
"Therefore, when Mr. Smith returned to the eatra board on
November 13, 1961, all five of thaso men junias to him were placed
down on that extra board just one more matt. Their job opportunity
was loosened to the extent not only of the loss of
one position
but the
increase
it:
the
Size
of tiaa extra board by ono man."
(Continued)
- 117 -
Docket No. 95 r it'd. - p. 10
"n s e this Conmi:tao is further earnestly urged to give special
attention to the foliowinb remarks of the
Counsel
for t'aia Organisation
at a recent hearing before Ercexgancy Board No. 148 (Carrier's
Exhibit 3 in tLA record);
612:1. SCHOENEt I am sorry. Dr. Daly. I don't got the
distinction you are mskiag between jobs and positions,
apparently.
'Ir. our terminology, we refer to the earn* thing as a
job and a position, and when -- it is when we try to be
formal and write it into agreements, we say 'positions
when we talk among ourmelves, we talk about fobs.
'Each of them has
certain attributes, and Mr. Leigbty
has testified to ouch as it has a rate of
pays
it has
defined hours per day, days per week, and at least
generally specified duties attached to the job. As Mr,
Leighty has testified, it 1s each such position or job is
identified in the wage scale, and when it is essential
that its attributes be describsd in the bulletin."`
ORGANIZATION (tr. r)p$o 451, 452, 453)
"MR. SCHOEDMIc t Yea, I have a few questions. I will precede
them by observinG that i am becoming thoroughly convinced that anything that I and my clients say somewhere is somehow recorded in
some gigantic electronic bvaia.
"Mr. Doaton, in the statement you filed with the Committee on
July.~b, you quoted Mr. Leighty frown the same hearing that you
today quoted me
from.
"Do you know what context the discussion was taken from?
"12.R, DEATONt A.
Well, there is in the record, on page 5 of
Carrier's Exhibit 8. where quite a few of you were discussing the
question. Mr. Trianon$ wag cross examining Mr. Leighty and he
said this.
"M8, SCHOv~NEt p. Now, when you have a vacancy or sickness
or other
absences, and a
roan is taken frost what is called the extra
board, does ha occupy a position? Is there such a thing as an extra
position?
(Continued)
- 118 -
'
Docket No. 95 nt'd. . p. 11
"A. Mr. Leighty said:
'On some rallroades and I am not completely familiar
with all of the operations of the New York Central System,
but wader the vacation agreomant the omploylaa officer of
each division is supposed to confer with the district chair.
man on each divioion and arrange for vacation schedules
for each employee who is entitled to a vacation that year.'
"Now then, to return to your question, Mr. Sehoens. One of
the mambo: a of the Board gave his definition of the term position
sad job. I think that was where your remarks followed.
"Q. In what context was this. what rise of the term position
eras under discussion?
"A. This was in the hearing in connection with the dispute on
the Now York Central.
"Q. What was in dispute?
"A. It was the so called job freeze notice. as I recall it.
"Q. What was that notice. what did it say?
"A. Well. I don't have it. I read it. Mr. Schoens. but I don't
have all of the transcript here before me.
"Q. Wells in order to judge the relevance of the conversation
that you quoted, isn't it necessary that we know is what context the
word position iv used?
"A. -Wells I have ··
"Q. But you don't know?
"A. The-record has several pages.
'1Q.
None of which reflect what the dispute was about?
"A. It is extracted from the hearings, yes.
"Q. Ycn, but the extracts don't reflect what proposal was under
discussion, do they?
(continued)
- 119
Doekot r?o. 95
"Lot rno ask you this, You said you :sad the record. Is
it in accordance with your recollection that the proposal that gave
rise to the diapao was the proposal that the oxi:ting rules be
amsndod to include a provision that no position should be abolished
or diacontiuuad oxcopt by agreement between the Carriers sad the
Organization?
'IA,
I think you are correct.
"Q. In other words, this conversation relating to what the
Orgunizatioa meant should not be abollohod or discontinued except
by mutual agroemsnt?
"A. That is what has generally been referred to as job frees*
notices.
- "G. I want to know if that was the context of the word 'position'.
I underotand your answer to be yes, is that correct?
"A. My answer was, the Emergency Board hearing was held as
a result of the notico the ORT served upon thu Carrier, and I think
you have substantial knowledge of what it was, yon have substantially
stated what it was."
CARRIER (tr. ppls 493, 444, 445, 446)
"The
Washington Job Protection Agreement has boon in effect
for more thun a quarter of a century, and although the parties to this
dispute have been involved in other coordiaatione, this is the first
time the Or Canisation has contended that extra list telegraphers were
adversely affected.
~On
August 25, 1959,
this
Carrier and the Kansas City Terminal
Company in Kansas
City served a
Section 4 notice to coordinate KCT
tower 4 and li riseo-Z9th Street interlocker, Kansas City.
11Cn September
20,
1959, the Frisco Company and the Santa Fe
served Section 4 notices to coordinate this separate station facility
at Pawnee, Oklahoma and Girard, Kansas.
"The implementing agreement on the Pawnee-Girard coordination
was entered into on October 14, 1959, with the ORT.
"The implementing agreement covering the KCT tower 4 and
Friaeo-29th Street iatsrloeker was entered into with the Telegraphers
on February 29, 1`150.
(Continued)
- 120 -
Docket No. 95
u'd. - p. 13
"On day 1, 1960, the Frisco and Cotton Belt served Section 4
notices for coordination of their separate station facilities at Harvard
and
Gideon. The implementing agreement was signed September 1,
1960.
"In none of those coordinations was there any contention voiced
by the Organization as they are advocating here today, and in connec.
tion with the Santa Fe -Pawnee-Girard coordination. I would litre to
read into the record one provision in the implementing agreement.
"This is Section 4 of the implementing agreement of Getoberl4,
19591
'Subsequent to t'ne effective date of the aforesaid
coordinations at Girard. Kansas and Pawnee.
Oklahoma agencies. as herein before provided,
this shall be determined by Frisco in connection
with the Pawnee. Oklahoma coordination, and
the Santa Fe in connection with the Girard.
Kansas coordination; the names and seniority
dates of the individuals displaced from a regular
_
assignment as a result of such coordinations.
And such displaced employees shall be handled
in accordance with the provisions of the
Agreement of May,. 1936. Washington. D. C.'
"The Arbyrd-Gideon coordination with the Cotton Belt, effective
September 1. 1960. According to ORT Exhibit A, introduced here
today, those awards and the dissent therefor are dated September 25,
1960.
"Now then, the notice to coordinate.
Leachville and Campbell
were served on August 1. 1941, Implementing agreement was signed
on Aagitst 24, 1961. sad the coordination became effective November
1, 1961.
"It is.apparent therefore that
the Organisation has seemingly
changed its views as to the meaning and intent of the Washington Job
Protection Agreement, and particularly Section 6 thereof. mines the
Arbyrd.Gideoa coordination."
ORGANIZATION (tr, pp'e 456, 457)
"Mr. Referee, for the record I
would like to clarify this agreement that 1Lr. Doaton refers to, Involving Girard# Kansas and Pawnes,
Oklahoma.
(Continued)
-121 -
Docket No. ;5
it'd. · p. 14
"Tie quoted a paragraph from that implementing agreement
which specifically referred to the application of the protective
benefits to a regularly assigned employee who is displaced.
"i anid earlier here that as part of my duties I supervise the
negotiations under the Washington Agreement.
"Wham this agreement was aegotiated involving Girard and
Pawnee, we had a relatively brand new General Chairman on this
property, and we had a brand new Vice F,resident.
"1 th" I will repeat to you. Mr. Referee, what I told the
committee. When this agreement reached my desk there was certain
action taken, tend I don't believe the Vice President still finds it very
comfortable to sit down.
"That is the only agreement, to my knowledge, that has a
specific reference to the Washington Agreement being applicable only
to regularly assigaed employees,
"That was a mistake, we have had to live with it and haven't
insisted in this agreement that the extra employees are entitled to
anything.
"i want to correct the record. that this isn't our position and
never has been. Other Carriers are paying the extra employeso
who have bean affected, but it is a very difficult thing. Mr. Referee,
to police the application of the Washington Agreement.
"It is a very complicated Agreement, and many of our people
overlook these benefits that some of our employees she entitled to
secaive.
~'l just wanted to correct the record. that this is not the
organization's position. as contained in this implementing agreement."
As an explanatory note. oltT Exhibit A refers to sustaining
awards in an ad hoc arbitration by Special Board of Adjustment No.
226 for interpreting language of paragraph I in the "Burlington
conditions" and the application of said "Burlington conditions" to
extra boards Telegraphers in employments with the MK&T R. R. Co..
stressed in 4 pages of argument by the Organization (tr. pp'e 4Z6.4tT,
428,429), with the same heavy emphasis again being placed thereon
in the dissent.
(Cc ntinned)
- 122 -'
Docket 'No. 95 ~ ·nt'd.
Docket No. 17, decided by the Committee. without a Referee,
is also drawn into contention by the dissent. With regard to said
docket, the only evidence of record on oral hearing, disclosed:
17. Order of Railroad Telegraphers v. The Denver and Rio Grande
l~lestorn R.
R. Co.
Claim of the General Committee of The Order of Railroad
Talegraphors on Denver & Rio Grande Western Railroad. that as a
result of the coordination of the carrier's separate railroad facilities
at Palmer Lake. Colorado, with the separate railroad facilities of
the Atchison, Topeka & Santa Fe Railway at name place, effective
July 15, 1933. the Denver & Rio Grande Ueatern Railroad employees
covered by the telegraphers' agreement, as listed below, have been
advoraoly affected in their earnings, and under the provisions of
the waahin Eton Agreement of
may,
1936. and particularly Section 6(a)
thereof, have due them for the period July 15, 1938, until April 30,
1940, approximately the amounts met opposite their respective names:
G. E. Schlaf $7.24
C. F. Swanson 327.73
J. H. Harvey 123.50
P. Ta. Lawis 327.23
S. M. 9lackwell 370.42
J. F. Strador 337.'28
C. J. W heat 230. 51
G. B. Pitney :364.1=
J. O. Smith 334.26
Fay Highfill 510.91
F. J. Thlramescb 422.18
E. T. Viebrock 17.38
Chas. Coombs 201.54
3.574.82
and
thor, oafter, subsequent to April 30, 1940, for the remainder of the
five year period mentioned in Section 6(a), the same employee shall be
paid semi-monthly the difference, if any, between their actual earnings
and the average soml·mombly earnings of the base year.
Submitted Ex
Parts by O.R.T., September 29, 1941.
DECISICN
t
That employee of
the D. & R.G. Vl.
represented by the Order of
Railroad Telographere
lost
two jobs at Palmer Lake as a result of the
coordination that occurred
at
that point, but on the basis of peculiar
facts of record all employee thereby affected, including those affected
by Mr. i-Iele'a exorcise of seniority on the
D. & R. G.
W . roster, will
be accorded protection tinder the "AGREEMENT OF MAY, 1936,
WASHINGTON. D.C."
Ncither the cloning of the agency at Howard nor the transfer of
the tolagraphor position at Walsenburg to
the Colorado
& Southern ryas
(Continued)
- 123 -
Doc:cet
No. 95 t'd. - p. 16
the result of, or related to, the Palmer Lake coordination, and they
will not enter into the compensation calculation as used by either .
party*
ISFEREE'S INFERENCES,
DEDUCTIONS, AND CONCLUSICNS
(Reasoning)
The dispute was submitted Ex parts for decision on the proposi.
ties:
"Are employoms assigned to an Extra Hoard
who
are affected
by
a 'coordination' entitled to the
protective benefits provided in the 'Agreement
of May, 1936, Washington, D. C.' specifically
a'displacement allowance' under Section 67"
- section 6 provident
"No employee of any of the carriers involved in a
particular coordination who is continued in service
shall,
for a period not exceeding five years follow. ..
in Z the effective date of such coordination, be
placed, as a result of such coordination, in a
worse position with respect to compensation and
rules governing working conditions than he occupied
at the time of such coordination so long as he is
unable in the normal exercise of his seniority
rights under existing agreements, rules and prae.
tices 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, except however. that if he fails to
exercise his seniority rights to secure another
available position, which does not require a change
in residence. to which he is entitled under the
working agreement and
which
carries a rate of
pay
and compensation exceeding those of the
position
which ho
elects to retain, he shall there
after
be
treaced for the purposes of this section
as occupying the position
which
he elects to
decline. "
The real dispute is over the meanina of the word'position". Cue
position had been abolished as the result of a ''coordination". The
occupant of thro abolished "position", being unable, in the normal exercise of his seniority under existing agraemonts, rules and practices. to
obtain another "poeition" was forced to the extra list.
(Con124tinued)
Referee's lnier~.icas,
Deductions*
and
Conclusion* cont'd. . p. 17
"No employee of any of the carriers involved is
a particular coordination who is continued is
service shall. for a period not exceeding five
years following the effective date of ouch
coordination, be placed, as a result of such
coordination, in a worse 'position' with respect
to compensation and rules governing working
conditions than (the position) he occupied at the
time of such coordination."
The protection afforded by paragraph (a) of Section 6 shall be
made effective "wh3nnver appropriate" through what is designated
as a "displacement allowance". Any employe entitled to such allowance is referred to, for purposes of the agreement. as a _displaced
employe*,,. Section 6(b).
If the "displaced employee" fails to exercise his "seniority
rights" to secure another available "position". which does not require
a change in residence. to which he is entitled under the working agree.
ment and which carries a #rate of pay" and "compensation" exceeding
those of the "position" which he elects to retain, he shall thereafter
be treated for purposes of Section 6(a) as occupying the "position"
which he elocte to decline.
The key words in Section 6(a) are "position" and "seaiortty
rights" as we shall try later to demonstrate.
The only "displaced employee" so far as I am able to see, for
purposes of this case, was the regular assigned encumbent of the
abolished. ape
ition, who was usable is the exercise of his seniority
ri~ihta,~o secure another available position under the working agree.
moat producing compensation equal to or exceeding the compensation
of the position held by him at the time of the particular coordination.
He la being taken care of. No em eye on the extra list was displaced .
therefrom.
In Docket No. 9. the Committee, without a Referee. had before
it a submission dated February 29. 1940. The Washington Job
Protection Agreemsat had been in existence only about four yeUrs.
The record before me in connection with that Docket is next bersia·
after reproduced. ,
(Contiauad)
-17.5 -
Roforoo'n Iasoror ·os.
Daductiora and L .relusiono eont'd. . p. 18
9. Order of Uilroad Telegraphers v. Gulf. Colorado & Santa Fe
Railway-Co.
3otnt roquoat for intorprotation of the "Agreement of May. 1936.
Wauhingion, D. C. "' in connection with the
consolidation of
telegraph
facilities at each Brady, Texas, and F3rownwood. Texas. Joint subriiaaion. February 29. 1J40. Oral hearing waived.
QUESTION ¢)
- Is the "average monthly compensation" determined
in accordance with the formulae prescribed in
Section 6-(c) and T-(a) of the Agreement, subject to
change to conform to subsequent increases and/or
decreases in basic hourly rates resulting from
general wage adjustments?
-
QUEST) - Are affected emplayes who have insutfieieat waiority
to obtain and retain a regular assignment, but who
revert to and perform service from the extra list.
entitled to compeaaation under section 6 or Section
7,
of
the Agreement, or under a combination of bets
Sections
?'
DEC:SION
QUESTION (1)
- No.
QUESTION (2)
- Section 6 of the
"AGREEMENT OF MAY. 1936.
WASHINGTON, D.C." applies.
Practical railroad men. if you please, made that decision within
a relatively short period after the Washington Agreement was consume
matod.~Rot some 2? years later. The "benefit provisions" were
sufficiently clear for the "practical railroad men", who were parties
to the dispute, to know what they mean. They claimed only on behalf
of the "affected empioyoos
who have
insufficient seniority to obtain
and retain a regular assignment". If
there had boon some basis
for
claiming more under the submission, pursuant to the Agreement. I
reasoned that those "practical railroad men" would have known about
it, so coon after the Agreement under which they
were
claiming had
boon consummated, and construed their action to be in complete
accord
'with said Agreement. Docket No. 9 was frequently mentioned an oral
hearing. (tr. pp'e 418. 449, 459.460).
(Continued)
- 126 -
Zeferce's lafc: sr·^es.
Doductioao and t ecluotons,
coat% · p. 19
In Docket No. 17, supra, the Cocumittee. without a Raforee,
had boforo it an :x parts submission from the CAT dated September
29, 1941 on bahaif of
individual clsi=antss, as d1aanguished from a
oubmiaaiou ca principle in the instant cast and as in Docket No. 9.
The deciolon in Docket No. 17 does
not say
who of the
individual
elatnuats wore affected, but does hold:
"That omployea of thw D.&R.G.W, represented by
the Order of Railway Telegraphers lost two lobs
at Poker Lake as a result of the coordination that
occur : ed at that
point, but on
the basis of
the
peculiar facto of record all employes thereby
affected, including those affaetad by Mr. Hale's
exarciso of senioslty on the D,dl R.O. W . roster
- will be accorded protection under the 'Agreement
of
harry,
1936, Washington, D. C."'
The "peculiar
facts of record", in Docket No. 17,
and
not
in sons
other docket, were obviously controlling of that decision. What ths_
"peculiar facts of record" were that influenced the decision is still a
mystery to ma. Presumably those facts wart peculiarly applicable to
D. & R,G.'6 .'n agreement with its Telegraphers.
Docket* 11 and 21 cause on for brief mention, during oral argument,
as shown at pogo 458 of the transcript. as follows:
"In Dockets 18 and 21, those dockets seemingly
cover disputes as is displacement allowances
to which regularly assigned employees wore
oatitiod.
"But if
those regularly assigned employees
who were claimants in those dockets reverted
to the extra board, or as the Organisation says,
displaced someone else on the extra list, 7
don't find
any claims in
those dockets is
behalf
of the extra employees."
After the record had been closed (tr. p. 458) the Employe Members
of the Committem. sensing some failure on the Organization's part to
sea in Docket No. 17 the great weight sad probative force oariier that
the Employs Members of the Committee would now give to that decision,
later came forward, on
the last day.the Committee was in session, with
cite ORT'n submission in that Docket, but not the entire record.
(Continued)
- 127 - .,
Raforac'o iafuru
fs,
Doductionu and Conclunionacont'd. · p. 20
The ART sssbzaiaaioa acrvas to identify the aamad claimants
according to "position held irn=a<il:.t3Iy prior to coordination";
'lnormal o;:cr cisa of aealority as a ra::ult of coordinatiaa"; sad.
"aubsequ%xnt uuarcise of asniority". "Total corapansatica rocolved
during teat parted" and "overuse moathiy cungonsation received
during :out period" era given :or vurificatioa of the claims on behalf
of the individual claimanw.
IL can --Igo 6e determined from tiio E:: parts aubmisaion, in
sad Docket No. 17, that one 3. ii. aiarvoy was displaced an the
extra board
from the "position" of "2d Telegrapher Trinidad.
Colorado" which he hold iaomadiatoly prior to the coordination.
Ton of the
other named
ciaisnazta were on the catra board. Mr.
Hale, namxd is the decision, was "not involved in the Lwtaat elaira",
lie "did not choose to place himaolf is a lens favorable condition of
asnploymsst by wavering his omploymeut with the D&FLGW and traas·
forring his aauiority to the Santa
r
a Railway is ardor to cautious is
employment at s'aimor Lake."
The Carrier Members of the Committee refused to be drawn
into another argument after the record had been closed. The
Carriar'a oificor, who had argued the case before me. was not
aviare, at the time, that the
Or?,anUatioa had new arguments to
advance. Tho Zmployea gonoruily loon with disfavor upon rc·heariaga
or re-argument. I was not particularly impresoad with
the decision
made on the "basis of the pecu»iar facts o: roeord°. Those words
axe studiously employed
frequently
by a deciding agency, in connection
with any compiicatad roco:d, to tic the decision down to a particular
case.
The
little of the record before rao is Docket %o. 17 is eompii·
cated. I dacidad aaaiast applying the decision in auothor and later
sago, involving different parties, who cannot be idoatilie$ with the
0paeulA8r fucta of record" in the decided case.
I did ignore. the sustai:.iag arbitration decisions by Special
Board
of
Adjuatrusat No. 225, but sat out
of any dioroupact for the
viawo of the very able Referee who raaaono his roault quits well.
Whether he
would have reason®d the same result on
the record before
me. or whether I would huva arrived at the Homo derision
la the
dispute hoard by him. neither
of us is called upon to may.
The iany,uage is paragraph 1 of
tae
"Burlintoa Conditions"
and pection 6(e.) oz the "1iiaohingtou A.greemeat" springs :ram
daferoat nouvcoa. Those who are csilad upon to look
to other
(Coatiaued)
- 128 -
ila:urue'a Xra°araneoss,
nndr.ctiona, :.n;3 incluoion3, cont'd.
- Pn.
21
"co;:3ltica~r" for empioyo protection are free to look to this
Committee's
i»to:r;:e:ation of the Washington Agreement, L3
Cloy
wish, but what
ihcy jay about
tLu
"Burlinutoa Conditional" as a basis of Zrunting or
Siit'-'.avl:1::1
j vanefits,
4009
not bind
tale Comat1tteo, iu :My opinion.
Tdo section 13 Conuaittao has no otandir.g tutdor the "Burlington
Cuaultlcns", nor dons as Arbitration B"rd, in a3 has arbitration
proca:d;.ngra for conutruing,
iutarnroting and applyinf the ',Burlington
Coaditioaa", 'awro arty atandina undar the "Washington Job Paotoetion
A groamoct".
TTha
wztcctmant of Section 5(a)(f) of tiao latorntata Commerec Act,
or "case: of Cue Inter etatce Cornmorce Commission. inzpoaiab conait:oua
for tae protoetian
of omployes, does not necessarily stay
the application of
the
A3roonient of May, 1936,
Washington, D. C., from what I
c:oo in Dockot No. 27, doeidnd by the Committee with the assistance
4of
another Referee.
I !eel confident that the Employe Members of the Committee
would not hold
thanaselves
to be bound by
an adverse decision in an
arbitration proceeJtnys outside the Washington Job Protection
Agre"uont and wee think with good reason as herein stated.
I triad, but could not reason that the words "worse poaltion",
appoarin, in Sacttoa h(a) differed £xom the bon of
the
word "pooition"
ova wore tirne3 in the same Section, or In connection with its =nay
oehar an2oarances elsewhere in
the Agreement of :.lay, 1936,
Waohingtors, n.
C. Ban. Sections 6(c), 7(a), 7(c), 7(f). and 9.
'zoo .vo-d "position" is not defined. A batter or woroa
·"p,>oit1cn'
with r copoct to companoation and ruloa governing working coaditiuua"
heu to find lts roots in existing agreements,
rules and
practices un the
propert9l, for the craft or clasz of omployax affscted. 'She sums holds
-*or the exorcism of
seniority
rights.
A "po3itlon" under the Tolegrapheroe Agreement has certain
nnitr
ibut4ia, ouch
as "rates of pey°', "dufbied hours per day", "dnya per
week",
"awl at least generally oyecifiad duties attached to
the
job",
ao chown frorn testimony before Emergency Board No. 148. In or out
of carjtcat wit:t taut dispute, the words have a familiar ring, as do the
words "zach such position or job is identified
in the wags scale, and
when it is oaaontial that its attributes
be described in the
bullet'-A".
(Continued)
- 129
Referaa'o Inf®rer'!es,
Deductions, and
%aclusions, eont'd. · p, il
- The
"bulletin", in railroad parlance, is the advertisement of
an existing vacancy in
s
position identified to the ravage scale under
the Telegraphers) Agreement. The "Dultotin" is the means for
advertising the vacancy, rate of pay, hours of work, duties, ate.
of the vacant poeitioa, for the "exercime of seniority rights under
existina agreements, rules and practices."
Seniority is the touchstone of all rights under the Agreement
of May, 1936, Washington, D. C. and is the link that is inseparably
welded to all "positions" within the contractual :weaning of that word
in keeping with the agreement. rules and practices on the separate
properties.
The
decision, as a casual glance will show, does not foreclose
the rights of all "extra" employee under the Agreement of May, 1936,
Washington, D, C. There are those "extra" employer in the reilsoad
industry, who, in the normal exercise of seniority rights under
existing agreements, rules and practices op the different properties,
displace on or displace from the extra list or board in the normal
exercise of seniority rights under existing agreements, rules and .
practices. In the instant case no telegrapher had bean displaced
from the extra list, nor was anyone on said extra list at the time of
the coordination deprived of employment as a result of said coordination. This was not an abandonment case, nor a transaction approved
by the Interstate Commerce Commission where other protective
benefits had been imposed,
The final point of disagreement is the asserted "grievoua error"
that 1 chanbsd the words, "no employee of any of the Carriers etc" to
read, "no
regular assigned employee of any of the Carriers sic'". 1
am left to reason that if I had changed the words to read, "no regular
assiqpd or
extra employees of any of the Carriers ate,,, I would not
have changed the language of Section 6(a). The words, "no employee
of gay of the Carriers ate" standing alone are devoid of any meaning.
It does not amount to a change in language to supply words of reasonable intendinent an the basis of the entire page. writing. or agreamant,
as explained on the record by knowledgeable persons. The fault must
be. therefore. that I did not supply the words that the Organisation
wanted me to use.
The value to be assigned to the decision and the dissent in this
came can now be assessed on the basis of all of the record in the
great detail herein reettsd.
139 _
Referee Response.
to Dissents, con . - p. a3
DOCKZT NO. 100
Section E(a) of the Agreement of May, 193&, Washington, D.C,
provident
"The tarsi 'coordination' as used herein means
joint action by two or more carriers whereby
they unify, consolidate. merge or pool in whols
or is part their separate railroad facilities or
any of the operations or services previously
performed by them through such separate
facilities."
I have it on authority of the Organization (tr. p. 490) than
"Here we have a terminal that was coordinated,
that is how they foraged the terminal in the first
place, the seven tenant lines.
"This was effected prior to the Washington
Agreement, but it was a coordination."
Therefore, it is established at the outset that. by joiat action
of two or reore carriers, the operations or services previously per.
formed by thesis. in whole or in parts through their separate facilities
had been unified, consolidated, merged or pooled before this dispute
axose.
Tenant lines are now performing the questioned operations or
services. in whole or in parts througu their separate facilities. The
Organisation's argument that thu Cincinnati Union Terminal is a
carrier party to the Agreement of May. 1936, Washington. D. C. had
some appeals but did not carry enough weight to overcome some
precedent value of earlier decisions by the ComasitWe, &#stated by
another Referee, in Dockets 25,26,81 and 61.
I did not recognise is the "Findings" that a coordination was
effected under the facto sad circumstances of record, as the dissent
gratuitously holds. If this had been a case o1 first impression or
other than tenant lines had been involved. I might have reasoned
differentlyi bass, I was not convincede oa the basis of this record,. that
Section 2(a) of the Agreement. supra. Is applicable. This case is eve
131
Docket ho. 100,
cont'd. - p. 24 --
where operations or servicas previously performed by the tenant lines
through their separate facilities are a.-min being performed. is whole
or in part. through those same separate facilities.
CCNCLUSICX
This response to
toe dissents will not serve my learned and
respected colleagues, on either side, to any great advantage, nor will
it likely gain for me any greater respect from the Employs Members
of the Committee. Most of
what
appears h®reia was said by me to
the Committee in our long deliberations; and, if I failed to impress
my dissenters then, as I obviously have, I hold forth scant hope of
doing so now.
A Aeforee is at some disadvantage. however, to the eyes of
others, who do not know the record. by reason of his reluctance to
expound on his decisions. if, in
the
process, he can set by with fewer
words. The reasoned result is important only is those disputes that
continue &(ter the result is haowa.
Dated at Sand Springs, Oklaboma, We the Sth day of December,
1963.
A. Langley C ay R a
- 13$' -