JJB
Case No, 1 of PL Board No. 7 is
attached for your information in the
event you do not already have it.
Although this was a 2-6-65 Agreement
dispute, we understand that theparties
agreed to submit it to a f.L. board
with Mr. Dorsey as Chairman.
HCC
TFih1' 'POFtTA
O.~AT IIORTiER\
APP FdtRANCES
BEFORE:
T,fmSSFtS. R_,
T;wrs,.iM, :7.:.~'~i'th,
for the Organization
', ~._CXC. BILL
Rose.
TC:SFLS.
~,J,1.,...~
for the Carrier
Chairnm and Nautral Member
,gn Carras~;:_H) cb 3r~
Organization A(ambar
CARRIER'S alc!F3FT - 11
· ' a ;
Of7.II1U;1 0F 1tCiuF:?i
8tat.ern:·nt of. the Case
. Pureu.·znt to I!.Uree«.^.nt of
'L?ec
parties, e:cecu-ted Dacerober 8 , 7
.9G-,
. and in co«Plionoe with Public h!rrr FJ9--I,56 (fR0
Stat.
208) and. Rules and
I 11`;(;Ul.EltiOnfl
prurculgt~ tad by 11ati ona7. 1.'a·dit; A1i.on Board) by authori ty of -fn;:
i
ltitilwt:y Labor Act, as e.,r£rul,cd (l,5 U.:i.C. 7.57.·-163), this Public
LP--it
Loard
is du1.y constitu-tsd.
i
' Th3 issue prc-cnted
if.:
i '
"In what circec:.varc~-.:;, if any, do the rules, .
a~rc::r«_nts, intecar:a:.'-~i.ons am settle;-nts bet;reen
the Carrier and the Union inclu%lim- Article TII of
the 1:;a3iation Aggrae:~-:nt (Case A-'7123) date;: Febraary
7, 1905 and the i.mterretat:.ons thereto dated
November 24, 1965 1'2.:ytllr8 CO:RGr3riCe ?1:1 a_rBWnt
as a prerequisite to -tie consolidation of stations
' and/or agency positions at separa'-_e locations,"
By agreement of the parties hearirZs were hald in Chicago,
. Illinois. The parties filed Submissions and were afforded f1t11 opportunity
to be heard, to introduce ralevartt evidence, to present oral argttcent and
to file briefs. The parties traivetl the filiug of briefs.
~ .
The A_racnont of thparties spcoirls
tLat:
" the Rotrrl : reap conntinua in session
...
until the
mattcz·
::u'..:::attd
'to it under this
Agr.:c:aut is
d:i;po::rd of, which _hall ba within
thirty (30) deny:: aft.ar d.aae of this A.-reer~-nt
or within 'such othcz· pario:l. of tirr~- as tha .
parties other;rire may av.raa,u .
By stipulation of the parties, in t.he.crntraa of the hearizio, this time y
limitation ryas striol:en, '
'
Page 2 - CARi.IER'S EXHIBIT - 1
On Febzro:lry 7, 1965y -tll-~) jvj.'t:ir.n's railroads, represented b;/ tile
National Railway J.e:oor Cunfcr::ncc: and tile Fsu:;'t,_,rn, S7es't-_rn and So uth:.·aatcrrt
Carr:i.er:;''Cunfer2nce Corurli.'Ctc,,c:;: rmi t.b: rrr7a7.oy2ra' iia-tioal Conference'
CarRmi-'ftee, which i;rulairs inr;lule:l t'r,r.·
Great
tiurthc':n Railway Cor;.Pany, imrein
called Carrier, and 'the,, Tremayal~ta:.i.on - Corl--~:Jnicati.ua :ir;;~lo~ees Union,
herein referred
to as
Oryan:izat5on, entsred into a National ktrenwc.~nt,
Mediation Case k-/1?8, under tYm -Lez:~:: of -which the e.rpluyes represented
by the five organizations eirnpluyad by the
Carriers,
party to the "'yraer;snt,
were provided with stabilizer=on in their explcyr-ent alld many other
bene
fits under
conditions specified
.
later alia,
the
February 7, 7.905 kgreeaant contains a provision
which reads:
"b-'RTICI·fi III - .''PII_.":':_?~_G_ nGR
,;.~·:TS
~~_-______T.___._____ -..
__ ~ __
Section .1
-
TI72 Or(;aTll:;ati0'.'.I·vCO-lla`.'.C the right of
carriers
t0 L.^.';tst2Ci1:X·1O':LC£ll,
Op?ra-t10n1 affil
02'ga?l:iZat:iOttZ. CIIaC:;','.t"., and 111 cons j,dCx·:1t10_'1
of
t112 protective bn.''.f:i'C.S p:0\'=!1%d by t:lls
Agreement
-the carrier
wall
hw<: t..'na riv:ot -to transfer work
a?ICI/Or tra_^.9fC'1'
i:L:P1U~`i:if.
tYl:.'O:!ilO1A the
Syst2Ta
lrhich
du not z·2;,uixt·
'1.:
ci'oaine" craft lines.
Tile orgarii2at:ion::
signatory
h:.reto sash eater into
such lnplc?11;'.111tll'Ig
f',~;1'i:'c'I:·.:;ll-tj
with trUa carrier as
may be
112Cc'.RRarj'
t0 Iy·Cii'1C12 for t11$ transfer and
V38 Of BR:1110yE:E:9
arid
reef
a110C^.ati0:1
Ol
r2ui`1'<llll;2
1R°n't
of for..ei;
L1::C12 n8.".f:i_;a2·y
1)y the COn<bB..T'.~Jlat0C1.
cshnngo. Ono of the plwi.,aerr o!' s:\loh inLnlemantin,;
egrclala22rts shall bt
t;! provide a force adaq>zata
~to m3at t.ha carrier's ra:7uiz·era2nts."
Page 3 - CARRIER'S EXHIBIT
... , ...
' viOJ11
af't^1' th:='t
~V(~1'£nlil^Tli rr,?.`r Ej.'.^nLL'tCil
'tk13 pal-Lie"'
fVui71C1
tLl°:IISCIYC:, in.
dase.gl`eolf>nn't as to 7rrhn l11'tich J..(7.; s'C`::'ta.On 1, rnanda-tcd'tti.i;~plCiinti.T!'rt,
' o._;reemcwts", ThroLti;h Vrs pro~·~;,s of collective
bargaining
-the parLies,
on November 21,j 195, ag.r.^.ed upon
C!n
i.rrk.:`lyrwta-t:ioa Mhich in perti=lt
Part scuds
. . , . , p1~l:;r(_(,i~._f.:f.a.~_ T:·i'lo'.· ;ii`i:.~':rr;tT;i'_:~;!ill=
J^,h^ piT'G;!,;. lo
'i.C7~'
io(;L'(::':o^.rlt of l'CCirLt%1rJ ~~,
' , 1965, bs:inr: not :in ct::C:or'r. we to the n.::an:ir!~ and
in6 of
/:rvi..^.7.C: yI
S::ctirari
7., of that Agree-
' , 1nC·nt, have i:r:Tn(:.'k on t~'l.^. fU11Ufla.:'w , C
U:;:7T'V::'L'1EG -.
interpretation to grr:rr`r:x its application: '
1. TmpJ.emn ~u:inE, G;;r~:; ;n tt; will be
required in
-vu
U
i l t ha
VA-
~i~s p(a) the r,~e
invo7.YS·a t}-l,^ ~l.r
^ul:u
f er
of
e.·::pl oy es
from one seniority district or
. . "TO>v°r to axvother, as such,. .
seni.ori.tv districts or ros~erS
ea:is-_;:d on Februal7j 7, 1965.
l '~
(b) lYhsnaver i,ix:: proposed Ckx?.?loa, under'
,~.
the a.vrae:..nt in effect prior to
to
February 7, 196, would not lia,v(,been penAs: ible without conference
and ngr.ac;:<>xrt with rcprescntatives
of *the Organizations."
i; # ao-
lt2, at ~ at
lShen a carrier r.:ahc^ a tr;.hnolo;;i.cal,
o-ration.-A or cw-conizatiorml change which does
pe
tI
not ro7u:ira an :i.ryl:m:i::nt:ing aoraar:Lant, w.rloyas
afiacvted by such clian~;r: will 1.~ 5aw.d ad
lt
t6
' exercise
tk,ai.r seniou:ity in conforaity with
existing
seniority rules.",
.
.. .
r
~ r . Page
4 - CdPiiIFP.'S F?;riT$iT - 11
,
1lotvrithste.nd:ing·tilat iritmp'_'e't.':i:iun i.il~ parties hereiwfind the?a.lve.,
in a di::pute as to
when
all imp lem:ntiy a.~t'~_`i:°ut
":;lay
bc^. na:;aseary;: within .
the cant°ttplati.on of Article IIi, 7.(t:) of 'the ~.lonenrbar 24, 1905
Interpretation. The dispute
pertains
to "uuaJ.l'G°3'iil0:'1"
Or
'lCG.·'.IGUIlVil'ti0.a"
of ns.lency 'station,,--the rcarran;;:int; of c:.cency work at t·aG or r.orc
adjacent, open stations bcing scrv::d by full time <a gents, eo that only one'
agent in ma:i.gnecl to the war:; at th;:
:no
or more stations or, a reEuls.r
part-time basis during his assir:nc;l working hours; the consequence b::in
the abolist-went of agent positions the work of which is r,.:rged in the
"dualization"
11. Position of Oi~;arliZ3tlGn
The Organization
admits that Carrier by virtue of Article III,
Section 1, of the February 7, 195 Agraer.,=nt has tile contractual right
to "dualize" agencies. But, it says it may not do so 1`-lilaterlly w'nen
an islpler:·anting
agreement
is required; and, it points to Article 111,
Se-tioas 2,
3
and !, of the A;;recr,'.mnt which, when an mole.-.oatir.., aUecsont is "necessary", require:, (1). notice frola Carrier to OrJanization;
(?). conference and agl`281I1yn't; mid (3)
111
the ab3Clly^a'. Of a~,l'c:C~.`.Ilt :CfC.ral
to a Disputes Committee, all vrit.hin prascrib.d tilro limitations. Further,
Organization admits that when no inplerr.mting
agreement
is "mcess,rj'"
Carrier ray unilaterally effectuate tlla "dulization", lio·rrever, the thrust
oy
~ r '· . '
n
~ Organization position is that 11dualization11 by ita .. v~r5 nature c-ra:tw^u_s
,
' changes, in hours, working con·iitions, increased lvork load and setting
,,
' .. 5
. Page 5 - CARRIER'S Eiii'ii£iT - 11
apprOj nTlat° rate Of pay
that
lr·.·~.%:3
TL~CCuSa7;r itil 7.1riplCrnentln'-or f:'t.;T';:<^.r:n'v as '
an lrldi.f3pc^,nSUbla condition prBC!:!~rlt to effectuating a "CAlidllGatlUru",
1:(:C. Posil.-Ulon of carrier
Carrier s.rguoc float: (1) Article :(L:( of -the febx'tt:tx-j. '/, 1.965
AgT::orn::nt and the 7ntealrrota't:ion of hiwe;aber ?.!_ 19651 roast
b3
intsrpretcd in connacti.on vrith rules of the exi6-tong Schedule
(2) Carrier's mana;;crr.amt proro;;rst:Lve to a:ooli.sil a position of arent or
create a ''dualized" position is not cirevr.:;cri:oed by the Schrratile hgr;:erent or any other agree r.ent; (i) tae
historical
past practice on the
property has been for Carrier to crate a new position and va2raft°_r,
upon request,
t0
bargain with the Or.;anization concerning rata of pay,
hours and
t'i0T'!.l-il~
conditions; (4)
121
.a lld-jali7atlonl: 4Lhe contractual
rights of the affected employes, on the property, are trot impaired;
(5) an implementing agraemnt is raquire3 by toe February 7, 19o5ulgraeraant only to cure so'~c existing contractual or legal bar to Carrier
excercising "the right of the carriers to na:;e
technological, operational,
' w-td'oTg<,nizationnl changes" vestc;d by Article TIT, Section 1, of that
Agrear,^..^..~nt:
- . IV. Reaolut.ion ·
As stated, y ):,shy, Organizn'cion admits that Article ITT,
· :,action 1, of the f,'ab.rttary 7, 1905 Aorsemrant vasts Carrier riith tIla right
to "ditaliza" agencies: (1) unilaterally, ii no in:plen'::nting aZxaamant is
"nacassai;;"; and (2) if the partias,raach an 3nLaassa as to tt:a content of
` ~
Papa
6 - CARRIER'S EXHIBIT - 11
. ·a I:n^CC:iSat~'~ ·i.ll~ll°.,~'.T!'t:i11(~ il~l'::i`i'rl.l after
<::IqUEllls;°
with SW'tJUf.l 2
' and 3 of that Article thin upon: a.-osol%,Ldon
of the
differences by the
Disputes cOvfiltt3° as px'U'l:IdC.`(i
:111
1, of the' Article.
The lVn(;lto.~fe in
l::rtica.o III .-iiii.ch gives* rise
to
the
discpute
' befote
u3
iv:
.Scet:ivn 1. "'J.'il=~ oT(;_rn:a,~i~i.G;u~ e:it;r.atoxJ hore't0
Sht:.7.7. enter Into
::UCh , -p-,J.·':i.;~rl:.. ~, f:~':;f_fii,S
.. with vh·. carr.-'~er _ '::';.=._vr!`"r< _.rL to provide
for -the tranofez· a:ol ur;~: of.-c; y'Lo~c·e~ an:; -'the
' a7.lo:.'at :ion or ra:^m~.ry;.^ _~t Of forces ra::e
' W ooessary b;;
tile
co.rbv,;;la.t::d oi:=:n;;e. One of
tile purposes
Or :.U,-,: J'.~JuCn.:CW
ln_, a,~·rc;..·T.;mw^
shall
be to
provide a force z.u~qu.ut: to r_~et the .
carrier:, recuire:oenis," (.-nhaais supplied.)
Then in Section
4
which establis.hes the ;urisdiction of the Disputes
Committee:
.
11
. . The
1SS:t=?:;i_tln,"_~na
t'C-n Q
i-:-%°',;_O
(u.O
the Disputes
~, · ~ ~ ' `) $· i n.
c l
(to
COf:..~ _We'.,.~:1..._^ .U ~ 1 __L___
Il'J
C111·S-iOil!!
ji:~_l'~=.,·r_·'.1.Ot^_::? C:_=__.--_=O
E.11:^ the
Csl=.,`.~.~_.'·.
Ullt S'17- be confined to the
wanner Or
~n:J1Ci::.1t111~ l,°
COat'a:~J1cvC:l C::.^-.^-._:gc:
with rOGpBCt
t0
the trv!1SIc'r and use of
O::r
p10;ii.CS,
' and t-1^ allocation or vaarr,~,,Zznmazlt of forces
m'x;9e neccss.:ry by tile' contemplated change."
(Emphasis strsp~:ied., ) -
Note the like layaage in both Sections 3 and 4 as.-to.the objective; to
be attained by an implementing agreaiwnnt.
The parties, nn Novel;ber 2:;, 19065, agreed that the n:aaning o:
the
phrase
"as tn:W be necessary" as used in. Article TI:i, Section 1, of
the Frsbluixj · 7, 1965 Agraerant is
,',!._yK: Ada
Pane 7 = CARRIER'S E?;I:IBIT - 11
1·rwn~fnrt t
T. n~ ..,.n.
..~...'ra ' %t
·.'i ) 0
:11 r
F..-...-:-._.__~:::_...1',f:::_q..·.:.::·:__.:~=_..::'?-~::-:L.~,
19_y5,
wo·.J.a not.
it:.;::
lt~;.n ;rr:~':-t:i.:;t:.b1e
r
W"
th0ut cow'e l;-n':(· e...a sn;re 'tr:w rveil
I'C(rl'CiiClltRtiVL'u CnJ'i.liU
(II'~i:~naGEt'tl.On."
(P:raj,h=.l(o:i(r snrlpli.:~d.) r
r.·
1113.U
wu
COW
"trll~i
n.fi lu:C`fllllv
trl0-h, ir, the
G:w.'JriC,^.
Of any bar
C'J,ifl'tarig
prior to Ilebru.c;zj 7, 1965, f0uxlle;l in z'ulcs, p:::;t practi.c'e on tYm prop_'rty;
contract or larr, an :imllcrt;:nting eIcerr:rrt, i~: not ncce;:;ary.
1. Rule:; and Pa~,Av Practice
In Award 110. 1 of Sp~·c3.ul.-)io..r~: of Adjustunt ?Io. 603 (January 13,
1965) involving .the parties herein r~n:i the: right of Carrier to unilaterally
"dualize" agencies
i t c; s!s held
"sle thin:; it ..s clcar7.y
T'2CO.-Ill"-;
by
the waigkit of au-vhDri-'.y of
Awards of the. Third Diviai0n a.13 Special
Boards Of AQjaStf:aat
t,hat,,
in 'the absence
of x.lles or practice,- to
0~''fi
a
-oil?
cowtra_y,
(and
1'f2
find
7
c 1 n.,i.) i~ in,_m , ..~ , ? sr
.l none
1.,.,i:o,_m,
th'.
v.
given E.-Cniy stations droclinez, to such cm
extent that tll-orc is n
0
1 olln;ar a substan
tial amount of 1:'olvi t0 be peror::~d on a
position at 0n^ az;ency location, such work .
racy be con: olici:l'ccd with.th-, work- at azi
OthC r
a;-,CI1Cy 10Ct1t:LUt1
whare
the work has
similarly
(lecli.nad."
Tills Yre hold to b(: binding case ln'tl.-tllat. there ire no rules or practices
on this prop^rty
which
estop Cnrx`ier
fI`bla
"aualizing" agencies: vri.thout
prior c0ofaronca and agri.:v;rnt
or
the parties. Indeed, fitom our : lady
of
the
I'acord in
this case ma would da::ie -to
the sacs conclusion ii tha
issua was bafora us
Az
MYQ.
Page 8
- CARRIER'S EXHIBIT - 11
During the hearing Ori;ana.r,avibu at'LaakCd !:card No. 1 bCoausC
it did not appear therein that that F:)1rd considered the following X.-Ule
of the Schedule Agreemont:
"IGJ.LY, 2.
Cckmpen,,a-V.on New or Changed Positions.
(a) S7hcn ne';r po::i.'L7.on:: are crc`aL^d for.
. wh:i.ch raLoo of
;'any
arc not Ymrein e~'-tu:oliehc:;1,
' Or CY1S'tang pU>7.'L7.Or1:> Callr;rerat.`.':l in .R`:
':;a~;C
seals are ma'LCri.ol.l.y r.,ha.n~e,l as to dut:iss or
' CUrrn;na:3a.Un3, CU:iy,^.rls^.t:1.0:1 'l/7.11 2)e aT'r:AT1.~;Cd, by
m11tUa1
OgrCCin:`ni. b!i'L3~rl t.'1C i`:AnU~fr;Cs1'L arid
v(1C
Organization, in confor::i:ity ;W th positiona of
the same cl.a;a, or r,.os't similar thereto, on the
samw seniority
district," ,
This argument is without merit in that during the hearing in the irwtant
case the Organization adLUtted that it was the practice on the property
for Carrier to unilaterally create ne;r positions or materially chars,--,e the
duties of an existing position; then, upon request of Organization the
parties would eX volt act confer and agree on "co.;per,sation". This
rule and past practice in its interpretation and application, therefore, .
do not make "necessary" an implem.z!nting agraeYant within the coatC;nplatiol
of Article IIT, Section 1, of, the February 7; 1965 ~;raer,.Cnt.
We find that all the rights and entitle...ent.s of employes vasted
in them by Schedule Agreement and practice on the property era unimpair~d
by Carrier unilaterally effectul'tini, a "dualizatien"by· virtue of article
III,' Section 1,' of the February 7, 1965 Agreement.. Therefore, the roles
and practices'1on the p1Krp2rt.y do not present a bar to .efiectuatin~ a
"dual3vation" without an irplercanting aglaaioant as a condition prace3en't.
Page 9 - CARRIER'S EXHIBIT -11
' · T
2. Contract s arid Dot
Organ.izat:ion adduasd no
contracts,
other than those referred
to h^.rcin, relevant and uwnWri~al to tine issue presented. ,
?to ).avr was cited by Ougami~,.t:i.on which e::tops Carrier fro:u
unilaterally effeatuating a "duaJ.i.zat:ion", We are co,~nin,ant that in so:.·.s
state: the approval of a star^.
agency
rust be obtained bofor e a carrier
can reduce the houru of service of an agency location. This is a bar to
· "duali2ation" which mu:.t be dissolves -with or vrithoat,an irylercantin;;
· agreement; it cannot be se+. aside by agreement of the parties.
We find no , contract or larr `,rhich makes an irp).erun ring. agree. sn t
' "necessax-j" within the contemplation of Article III, Section 1, of t=la
rebraary 7, 1905 Agreement. But, whether an i,:.ple: curing agree::ent, is or
is not necessary there remains the statutory duty of the parties to bargain
in good faith concerning wages, hours Paid vrorkino conditions as >=:.:.;sated
in the Railvray Tabor Act.
3.
Conclusions ,
Ad,jmlicatin.g the question pTeaented:
"In what ciromu:aa:ves, if any, do the
rule:, agra<^;;.3nt.s, int::xprotations and settle
' xnants bDtveen the Carrier and the Union inolul-
' ' Ing Article 1:(1 of th:! 1.'.E!dia-tion Agraarent
(Case e\-717) dates
February
7, 1965 and the
intexpratn-ti ons thereto d:a.-^d November 24, 19b5
require coviarznov and agx·a2:;;ent as'a
'prerequisite
. to the consolidation of statio:v and/or,agancy ,
j . ' p
aditions.at,;sepErate looations.", ,
I , : :,
;:
_w, ..
Page 10 _ CARRIER'S EXHIBIT - li
we find that Article III, Section 1, of the
February
7, 1965
Agreement
requires conference and agreement as a Iirerequiste to the consolidation
of stations and/or agency positions at separate locations in the following circumstances; ,
1. YIIiE1vI:VER TILL PROPOSED CILMIGE 7CTV0>,VLS
THE TRANSFER OF E7JrfLO"lI:S Ff2G;d ONE
SENIORITY DISTRICT OR
RO::'tEFt 'PO
ANOTHER,
AS SUCH SENIORITY DISTRICTS OR RASTERS
MISTED ON FEBRUARY
7, 1965;
A2dD,
' 2. WHENEVER THE CONTF3,1'IAT'ED "DUAT,IZATION"
WOULD BE 114 VIOLATION OF RULES OF TIC
SCHEDULE AGRMENT OR OTHER AGREEMENTS
IN EFFECT PRIOR TO FEBRUARY 7, 1965;
OR,,WOULD CONTRAVENE ESTABLISHED PAST
PRACTICES ON Ties
PROPERTY.
' 8.'~l©dP-
, As per
Conclusions
set
forth in Part IV(3) of Opinion,
r i ~L ` - .- ~~. ~.
/ JOHN Chairman
. / ,
_ . .. :y ~ f
~
~ , .
..... ,
~~'::31vf. 1JFfiT&IIAQ9E,
n
'~r
:.L:,.4~'I1~",."'1rxi
1~"fYL1a1.pt)lnoiy,:e~·
).iamt~a TIC1S C. DE BUTTS, Carrier ~Llabar
.
(. i .~·""
VJ : . ~~ ..
rated at
Chicago, Illinois t:r.i:;
__, ·'~ `'_;_,~,~,.'aay of February, 1967
,, w ll
w ,
page
11 - CARRIER'S EXHIBIT - 11
1
I
i
SPECIAL PGARD OF ADJUSTMENT NO. 605
of
~I
1-11s:T[.~-,S ) BROTHERHOOD OF RAIL WAYAND STEAMSHIP CLERKS,
FT~.'3IGHT IL4NDLE3?5, EXPRESS AND STATION E
MPLOYES
T O ) and
I
I~ISpUTE J THE ATCIIIaON, TOPEKA AND SANTA FE RAILWAY COMPANY
Case No. CL-S-W
Award No. 1
FINDINGS:
Special Board of Adjustment No. 605 was established on May 11, 1965,
by an agreement of the parties signatory to the National Agreement of
February 7, 1965; namely, those carriers represented by the National
Railway Labor Conference and the Eastern, Western and Southeastern
Carriers' Conference Committees, and certain of their employees
represented by Ernployesr National Conference Committee,
Five Cooperating
Railway Labor Organizations. The Board was empowered to hear and
render awards in disputes submitted by the parties in accordance whiz the
provisions of Article VII of the aforesaid National Agreement.
The parties here are signatories to the February 7, 1965, National
Agreement and the dispute has been submitted in accordance with Section 3
of Article Ydl thereof. Accordingly, the Board has jurisdiction of the parties
and the matter at issue.
The following has user submitted by the Brotherhood of Railway Clerks
for resolution by this P,oard:
~UESTIONSAT ISSUE
:
(I) Are Santa Fe e.rzployes with a seniority date
of
October 1, 1962
I,
i y and ear~li2r, who prior to Ategztst
1, 1965 were engaged in the
i
I
)wandting of National Carleading Corporal eon freight at the Conuitlz
i
i House ,#Z, Chicago, Ill., entitled to Proleclion under the
.f I
Fe7;a-ualy 7, 1965 Stabilization A0r-eernetzi?
i
If so, shall erzp%oyes
q-:alifying for
1>rclecl,'orz tl:~-rez!ard,~r be,
retura:ed to flee payroll
of
the Santa Fe and cerrpensated accrrd:-g
to the
provisions of Article 1V
of
the February 7, .2965
Stabilization Agreement?
Section 1
of
Article 1 of the aforesaid R'afional Agreement contains
cr iteria and standards for qrzaiifyirzg as a protected employee so as to
become eligible for the benefits of job security and protection of work rights.
Employees so
qualifying are to be retained in service " unless or until i
retired, discharged for cause, or otherivise removed by natural attrition.
The teyrrz "employee (s)"as used in this section obviously means a person or I~',,
sons in
an ernploynzent relationship with a carrier party to that agreement.'
group of persons described in Question (1) as "Santa Fe
rnay properly be treated at this as "employees" within the
intent and application of Section 1 of Article I of the National
y
of
to
whether that time meaning, Agreement.
judicially determined to have
per
In the light of the
foregoing,
the real issue upon which this case horns
is w
employes" nzea
A&%-
The
Board finds the evidence of record supports the conclusion lTrat
the employment status of these employees was judicially determined to have
shifted from the Santa Fe Railway Company to another corporation not party
to the Fe hrzz.ary 7, 1965, National Agreement. This determination was a
result of a successful suit by the Brotherhood-
of
Railway Clerks in August
1965 to obtain enforcement
of
its contract
of
'February 5, 1957, with Santa
~~
;il..-,. ,. l
Fe and Ida-a...-snit Carloac7.in,q Corjjoratiorz under which the taller agreed to
"take over"
1110SC
Saazla Fe employees then en_rabcd in jreig=hl
handling of
Corwitlz YJarehouse No, 1 if arid when LG:Z~:rZ Curloading rather than San
Fe decided to perform flail uor·k on its own account. Q?t Aub>zzst 6, 1065, the
_j-
. ~' '-~ t'. ~ Yo; L i51i't~i c?f
t.C.':aV,S !v:' _ ,'r;;l! ti,
r ?
O'.~. 1.~-S,(i('a ~l.:Cii nil' !:~ ....°iY
i
ii ?net a:rTcc:oa's co:rrp?ai;rt
S
:atad a canoe
07
acllcr a·:d ee.'ert~I a>; c,-,7r;r r:_ :,
i, I
!! utter alict, e:.jUi·rsd L'atfcri:as Carlo,~d:rjfrarn
a~iihdrawiubr or :nlpasY!n- I':.,
i
se;ziority rigJas
of
tle z:aeeruers of t)r: Santa Fe group and
fra~r: ett:r,layv:g t
new e;r~';.oyse.s z.ntil all employees on t)zz combi;,ed Santa F,:-National-
i
seniority roster had been employed by National Carloadirrg, and required
J,
lTatio;mt CarZoading and/or its sister subsidiary FRz;:da to employ those on
ti:a. Sarta Fe-National "as needed" with full seniority rights r:;tirnpaired.
r
The main thrust of the Pleadings and testinzozly of the ErotFerhood in
the record of the case vas that the Santa Fe group of employees was entitled
as a matter of contractual right to become employees of National Carload=rig
Corporation. The Court agreed and, in effect, so found by orrr.: ring the
i employment of
those
employees by National Cal -loading.
1
Accordingly, this PAaa-ct fi::: s that td-e order of the Court censtika, 'i a
severance of fl':2 employment relationship theretofore existing between the
Santa Fe Railway Company and the affected grmzp of its employees here
involved. Such severance is a bar to their inclusion as protected employees
coming witkin the purview of -Article I, Section 1 of the Naficnutt Agreement
o.
February 7, 1965.
AWARD
,
The answer to the questions submitted
i s r'No ". I
r.
C)tatr;rzan I
I
I
I
.i;%,
5
/Z
Il
w
;3 t'=;.".I;°S Di,`.EL2A TO APA:-t) 1:0.
of
SFEG74.I. PsJ?RD 4F t-B.3'J."~7TEi:1
DT.©.
605
Ibis
Awsrd wsa made through grass error. The Board e:caeded its
jurircdictian by not confining itself to the issue submitted; b7 deciding
em issue not submitted;
and,
by writing
En
additional exception, rejected
by the parties in contract negotiatio-as, to the existing agreement.
In addiCiou to ar_ceeding its jurisdiction, as above set forth,
the Board ".mpropirly and without juriediction&l authority passed an ratter
pending in
U.&. Di;xtrict Court for the Northern District of Illinois,
Civil Potion No. FS C 1199, and improperly Irplex-ented the Court's decision
to Include rctCere not before the Court.
There is no basis is jurisdiction for this 6tard.
%
._ '
_; ,
i"
_-
,14T:'.t~z'y
~1,15x:17.
nfteb atagez Court of Rppzaf~
~'cEr tide Otbcntb Circuit
SEPTEMBER
TEASI,
1963 Aran,
SESSION,
1969
No. 17184
BROTHERHOOD
OF
RAiwAy, AIRLINE
AND STEAMSHIP
IJLGHRS,
FREIGHT
HANDLERS, EXPRESS AND STATION
EMPLOYEES,
Appellant,
v.
SPECIAL BOARD
OF
ADJVSTn7ENT
NO.
' 605,
and THE. ATcHisox, TOPEKA
AND SANTA
FE
RAH.'NAY COMPANY,
Appellees.
MAY
8, 1969
Before
DUFFY,
Senior Circuit
SwYGERT,
Circuit Judges.
SwycsaT,'Circuit Judge. This
appeal-presents-the issue
whether an award of a board of arbitration created by
private agreement between parties subject to.the Railway
Labor Act is to be accorded judicial review';in a federal
court on the same basis as provided in the Act for the
awards of statutory arbitration boards. In light of our
holding 'with, respect to this jurisdictional question, we
need not reach the subsidiary issue whether the arbitration'
award in this case should be set aside.
Appeal from
the
United States
Dis-
trict Court for the
Northern District
of
Illinois, Eastern
Division.
Judge,
KH.EY and
h :- . .
,.
17184 2
the Brotherhood of Railway, Airline and
Steamship ~ aClerks, Freight Handlers, Express and Station
Employees, fi1P a petition in the district court see ,king
icriew of an award of a board of arbitration created
by contract and designated Special Board of Adjustment
No. 605. The petition alleged that the award had been
entered pursuant to the provisions of the Railway Labor
Act, 45 U.S.C..4§ 151-183 and that jurisdiction to review
was conferred upon the court by Section 3, First (g) of
the Act, 45 U.S.C. § 153, First (q).
The dis l~
rnnrt Pnt~rr~l snmmarv
iudmrlent in favor
.~f,~ the defendant, The Atchison, Topeka
a
d
Railway Company. Brotherhood
of
Railway Clerks v.
Special Bd.
of
Adj. No. 605, 286 F.Supp. 397 (N.D.Ill.
1968). The court held that it was without jurisdiction
to review the award in question and that even if it had
jurisdiction, the pleadings failed to establish any sufficient
ground for review.
The controversy which gave rise to the disputed arbitration proceeding grew out of a complicated bargaining
history. In July 1944, National Carloading Corporation,
a freight forwarder, located its loading operations on a
site served by the Chicago and North -Western Railway
Company. National's employees doing freight handling
work were transferred at that time to C&\V'J's payroll
and a C&NSV-National joint seniority roster was established which maintained employees' seniority rights with
both companies.
Although this arrangement prevailed during the ensuing
years, in 1956, after it became known that National
contemplated another transfer from the CS;\VV facility
to a warehouse owned by Santa Fe, the Brotherhood
demanded that Santa Fe enter into a joint seniority
roster agreement similar to that which had been in effect
with C&NW. Consequently, Santa Fe, national, and the
,Brotherhood entered into a tripartite agreement 'on February 5, 1957 whereby the parties stipulated that the
freight handlers then on the UNW payroll would be
transferred to Santa Fe without loss of seniority. The
February 5 agreement further
provided:
. I J ,
a
i s
3 17184
6. The National Carloading Corporation agrees
that in the event the work transferred from the
C&I`TW to the Santa Fe is returned to National, the
latter will take over the employees then employed
by Santa Fe in the combined National-Santa Fe
seniority district without loss of their seniority.
Subsequently, the freight handlers on the C&NW payroll
were transferred to Santa Fe and performed National's
dock work without incident until mid-1965, when National
announced that it intended to exercise its right to resume
supervision of this work itself on August 1, 1965. Employees who had been performing National's freight handling were informed that they could submit new employment applications and be considered for employment.
When National did not find it necessary to employ all
the freight handlers previously carried on the joint Santa
Fe-National seniority roster, the Brotherhood claimed
that those not employed by National were still technically
employed by Santa Fe and thus entitled to the benefits
of an industry-wide job protection agreement which had
been executed on February 7, 1965 by the National Railway Labor Conference, Santa Fe's bargaining agent, and
the Employees' National Conference Committee, which
represented the Brotherhood. On the basis of a provision
in the February 7 agreement relating to job stabilization
benefits for "protected employees," the Brotherhood
asserted that the employees who had not found employment with National were to be retained by Santa Fe
in their jobs and protected from loss of earnings "until
retired, discharged for cause, or otherwise removed by
natural attrition."
Santa Fe contended that its employment relationship
with the freight handlers in question had been severed
by operation of paragraph 6 of the February 5, 1957
tripartite agreement by virtue of the fact that the dock
work involved had been taken back by National and hence
the freight,handlers were not "protected employees" within
the definition of the February 7 agreement.
Because the parties were unable to resolve their dispute, the Brotherhood submitted it to the "Disputes
y y s
17184 4
Committee" as provided in the February 7, 19635 Agree
ment.' In its submission to the committee created in
response to the request, designated "Special Board of
Adjustment No. G05," the Brotherhood advanced two
:I
specific questions:
(1) Are Santa Fe employees with s seniority date !
of October 1, 1962 and earlier, who prior to
August 1, 1965, were engaged m the handling
of National Carloading Corporation freight at the
Corwith House #1, Chicago, Illinois, entitled to
protection under the February
7, 1965
Stabiliza
tion Agreements
f
(2) If so, shall employees qualifying for protection
`s.
thereunder be returned to the payroll of the
Santa Fe and compensated according to the
provisions of Article IV of the February 7, 1965
Stabilization Agreement?
·Board No. 605 considered the questions and concluded
from the two collective bargaining agreements presented,
the tripartite agreement and the February 7 Agreement,
that employment of the bargaining unit had shifted from
Santa Fe to National when National took back its freight
handling work. Thus it found that the employees were
not "protected employees" within the meaning of the
February 7 Agreement and were not entitled to benefits.
Thereafter, the Brathaxh~-file
fi>i^n f^
, R' -
in the district court which is Tie
st'~b
ect of this ap
The district court entered swnntary judgment for the
defendant Santa Fe. We affirm the judgment.
'Article
VII, Section 1 of the February T Agreement provides:
Any dispute involving the interpretation
of
application cf ary of
the terms of this agreement and not settled an the carrier may be
referred by eiL'ter party to the dispute for decision to a rn:r.,^tittee
consisting of two members of the Carriers' Conference Camr.;ttees -
signatory to this agreement, two members of the Employees' National
Conference Committee signatory to this agreement, and a referee
to be selected as hereinafter provided- The referee selected shall
preside at the meetings of the committee and act as chairman of the
committee. A majority vote of the partisan members of the cor :r:ittee -
shall be necessary to decide a dispute, provided that if such partisan
members are unable to reach a decision, the dispute shall be decided -
by the referee- Decisions so arrived at shall be final and binding
upon the parties to the dispute.
' __
17184
It is our opinion that the district court correctly
determined that it did not have jurisdiction to review >
the claims presented. The first provision of the Railway
Labor Act relied upon by the Brotherhood to press its
claim of jurisdiction is Section 3, First (q), 45 U.S.C.
~ 153, First (q). That provision was part of a package
of amendments to Section 3 enacted by Congress in 1966.
The two basic objectives behind adoption of these amend
ments were (1) to eliminate the backlog of claims pending
before the National Railroad Adjustment ',Board, and
(2) to provide equal opportunity for limited judicial
review of 11'RAB awards. 1966 U.S. Code Cong. & Admin.
News, 2285-8G. The part of Section 3, First (q), upon
which the Brotherhood relies reads:
If any employee or group of employees . . is
aggrieved by the failure of any division of the
' Adjustment Board to make an award in a dispute
referred to it, or is aggrieved by any of the terms
s ' of an award . . . then such employee or grasp of
employees . . . may file in any United States district
court in which a petition under paragraph (p) could
be filed, a petition for review of the division's order.
. The court shall have jurisdiction to affirm the
order of the division or to set it aside, in whole
or in part, or it may remand the proceeding to the
division for such further action as it may direct.
On such review, the findings and order of the division
shall be conclusive on the parties, except that the
order of the division may be set aside, in whole or
in part, or remanded to the division, for failure
of the division to comply with the requirements of this
Act, for failure of the order to conform, or confine
' y itself, to matters within the scope of the division's
jurisdiction, or for fraud or corruption by a member
~ of the division making the order.
,. The district_court properly connl_rled that only awards
of re dlar dimamnc~,a PAR
,~' o n~'y
o~t,e sec py and that consequently its jurisdiction to
review as award of the "Disputes Committee" created
under the February 7 Agreement is precluded.
Section 3, Second of the Act, which, in pertinent part,
provides for the creation of "special boards of adjust-
17184
ment" to consider and decide grievance-type disputes
which otherwise could be submitted to the 1RAB is
inapplicable to the instant case. That section, even if
otherwise applicable, cannot be the basis of jurisdiction
here since it vests au
y~fy
~AiqFTirttc
nn]o
to a n~'°~°w~ awards of special boards
The =~f etion 3, Firs-t.lal~el3f~s only
to statutory b9~r~ls. Tlie ;Special yustmen oar
No.
-M
5
rs no a statutory board at all but solely the ro t~eT
o a con rac a ween prorate parties. oar 'o. G05 is a
common
aw
oar o ar i ra~tio es~fablished by pa'~`
i'~es'~
w"~'oTiapTtre.o iermse-fo-vito the Act. \Tot
every form of arbitration in the railroad industry is
3
n~ithe
raW°W1SlOnc-of ~of the Ra~iT"
way Labor Act. Even though the creation of Board
No. 605 was sanctioned by the Act,. it was not a statutory
board and therefore not subject to the review provision
of Section 3, First (q).
The second jurisdictional, basis proposed is that this
cause arises under 28 U.S.C. % 1331 and 1337. As authority, petitioner calls our attention to the Supreme
Court's decision in
International Association of Machinists
v. Central Airlines, Ire.,
372 U.S. 682 (1963). That this
case is inapplicable to the dispute before us is apparent
if we keep in mind the fact that Board No. 605 is a contractual and not a statutory board. In
Central Airlines,
the parties agreed to establish a system board of adjustment to resolve grievance disputes. The Supreme Court,
in ruling that awards of an airline system board of
adjustment can be enforced in a federal court, made it
clear that agreements to submit matters to these boards
were not permissible but mandatory. The court observed:
The parties were placed under the statutory duty
of establishing and utilizing system, group, or,
regional boards of adjustment for the purpose of .
adjusting and deciding disputes arising under existing
In Lhe.case at bar, neither party was directed by the
Act to establish the "Disputes Committee." This committee was created by contract and wad not a statutory
board like that involved in
Central Airlines.
For the
same reason, the two other cases cited by the Brotherhood
involving statutory boards are inapposite.
Northwest
Airlines, Inac, v. Air Line
Pilau
Association,
373 F.2d
136 (8th Cir. 1967), and
Dominguez v. National Airlines,
Inc.,
279 F.Supp. 392 (S.D.~LY. 19G8).
There is no overriding equitable ground for finding
a source of jurisdiction here. The result of this case
cuts both ways, neither labor organizations nor railroads
can petition a federal court to review a private arbitration
board's award.
Likewise the decision here is consistent with the national labor policy of avoiding court review of the merits
of arbitration awards rendered under collective bargaining
agreements.
United Steelworkers
of
America v. American
Mfg. Co, 363 U.S. 564 (1960).
The decision of the district court is affirmed.
A true Copy:
Tests
...Clerk.of .the.United.States.Court.of..
Appeals for the Seventh Circuit.
USCA 3695-The Scheffer Press, Ins., Chicago, Illinois-5-8-59-200