SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight Handlers, Express and Station Employees
DISPUTE ) and
) Union Terminal Company (Dallas)
QUESTIONS
AT ISSUE: (1) Did the Carrier violate the February 7, 1965 Agreement
and in particular Article I, Sections 1 and 3 and
Article IV, Section 1 when it reduced forces on
September 15, 1965 on the basis that a loss in business
had occurred, thus forcing E. E. Peyton, a protected
employee to the furloughed list?
(2) Shall the Carrier now be required to pay Clerk E. E.
Peyton, who was furloughed as a result of the said
reduction in force during period September 15, 1965
to October 31, 1965 the difference between the normal
rate of the position to which he was regularly assigned
on October 1, 1964 plus subsequent wage increases and
the amount he was paid while working as a furloughed
employee during period September 15 to October 31, 1965?
OPINION
OF BOARD: The Carrier herein is a passenger terminal, jointly owned by
eight carriers, operating into and out of the City of Dallas.
As such, it has no gross operating revenue and revenue ton
miles which is the criteria specified in Article I, Section 3,
of the February 7, 1965 National Agreement. More precisely, this section
provides as follows:
"In the event of a decline in a carrier's business in excess of 57.
in the average percentage of both gross operating revenue and net
revenue ton miles in any 30-day period compared with the average of
the same period for the years 1963 and 1964, a reduction in forces
in the crafts ----- may be made at any time during the said 30-day
period -----."
The Claimant is a protected employee as of October 1, 1964.
Thereafter, on September 15, 1965, his position was abolished and he
worked extra as a furloughed employee for eighteen days during the claim
period from September 16 to October 31, 1965. Although a number of other
claims arose during the same period of time involved herein, these were
resolved on the property.
Award No. 119
-2- Case No. CL-27-W
Involved herein is Question and Answer No. 4, of the November 24, 1965 Interpretations, hereinafter quoted:
"How does the decline in business formula apply to short lines or
terminal companies for which data concerning net revenue ton miles
or gross operating revenues may not exist?
Answer to Question No. 4: Short lines or terminal companies for
which data covering net revenue ton miles or gross operating
revenues may not exist should enter into local agreements for the
purpose of providing an appropriate measure of volume of business
which is equivalent to the measure provided for in Article I,
Section 3."
Concededly, the Organization recognized the Carrier's status
as a terminal company and in conference on July 15, 1965, proposed a substitute measure consisting of total revenue ton miles and gross operating
revenues in lieu of the criteria set forth in Article I, Section 3, in
order to ascertain whether the Carrier had sustained a loss sufficient
to warrant a temporary force reduction. Discussions ensued as to criteria application until October 5, 1965, without agreement. Eventually,
on July 6, 1967, a Criterion Agreement was consummated.
The question presented herein involves the obligation placed
on a terminal company as reflected by Question and Answer No. 4, of the
November 24, 1965 Interpretations. What is the significance of the
phrase "should enter into local agreements," as contained therein? Is'
this a permissive or mandatory requirement? Prior to analyzing this
question, it should be noted that the answer to Question No. 1, applicable
to this Article, provides for an anticipatory decline permitting Carriers
to reduce forces.
In our view, Section 3 of Article I, specifies a criterion
which may be applied in the event of a decline in business so as to permit
Carriers to reduce forces. An anticipatory decline is permissible -aware, of course, that in the event subsequent conditions did not substantiate the anticipated decline, those individuals who were improperly
removed, would be compensated retroactively.
In the instant dispute, however, a different situation exists
due to the inability of terminal companies to utilize the formula prescribed in Section 3. Predicated upon this fact, the November 24, 1965
Interpretations specifically provided for such contingency by including
an admonition that these companies "should enter into local agreements".
This counsel is directed at the Carrier and makes it obligatory and
mandatory -- not permissive. On the other hand, does such requirement
prevent the Carrier from anticipating a decline in business? We believe
that Question and Answer No. 2 is required to be read in conjunction with
No. 4. However, the Answer to Question No. 2, also provides that such
information supporting the decline in buqiness will be furnished as soon
se available.
' Award No. 119
-3- Case No.CL-27-W
How was this handled on the property? On January S, 1966,
the Carrier replied in the following manner: .
. "Since the February 7, 1965 Agreement is not in effect on this
property until a local agreement is consummated, we have to
decline the claim as presented until such time as agreement is
made to cover the situation."
The fallacy evidenced herein is the Carrier's contention
that the February 7, 1965 Agreement was not in effect on this property.
This is completely contrary to our understanding of the National Agree
ment. Nevertheless, it is also noteworthy that this defense was pro
pounded even subsequent to the Interpretations. In our view, the Carrier
could not sit idly by and avoid its obligation to enter into a local
agreement. Furthermore, arguendo, granting that the Carrier could anti
cipate a decline in business, it was, thereafter, required to furnish
supporting data to the organization as soon as available. However, the
Organization alleges as late as September 28, 1966, the date the Organi
zation's submission was approved for filing with this Board, without
denial, that the Carrier had not
"furnished the organization with any information whatsoever with
respect to loss of business as required by the Answer to Question No. 3, Article I, Sections 3 and 4 of the joint interpretations of November 24, 1965 nor has it made any attempt to reach
agreement with the organization on the property on an appropriate
measure of volume of business equivalent to the measure provided
for in Article I, Section 3 in accordance with the Answer to
Question No. 4, Article I, Sections 3 and 4 of the joint interpretations, since the joint interpretations of November 24, 1965
were entered into."
Moreover, if it is evident that the Orgdnization refused to
enter into a local agreement, such factor would necessarily be required
to be taken into consideration. However, in the instant dispute, the
faces indicate that the Organization sought to prod the Carrier to negotiate a local Agreement.
Hence, it is our considered opinion that under the circumstances reflected herein, the Carrier violated the February 7,. 1965
National Agreement.
Award
Answer to questions (1) and (2) is in the affirmative.
Murray M. ohman
Neutral Member
Dated: 4Jashington, D.C.
August 7, 1969
COOPERATING RAILWAY LABOR ORGANIZATIONS
i
G. E. Leigh ty . Chairman John J. McNamara . Treasurer
Railway Labor Building · Suite 804 Fifth Floor, VFW Building
400 First Street, N.W. · Washington, D. C. 20001 200 Maryland Ave . N .E. · Washington, D. C. 20002
Code 202 RE 7-1541 Code 202 547-7548
r
i
August 21, 1969
I
Mr. C L. Dennis
Mr. H. C. CrottyV/
Mr. A. R. Lowry
' Mr. C. J. Chamberlain
Mr. R.W. Smith
SUBJECT: Dissents.to Awards No. 115, 116, 117 and 118
Disputes Committee No. 605
(Signalmen Cases)
Dear Sirs and Brotherst
I am attaching hereto our dissents to Awards No. 115, 116, 117 and 118 in connection
with Awards issued by Referee Zumas. These Awards are all contrary to our interpretation
I
of the meaning and intent of the February 7, 1965 Agreement.
i Fraternally yours,
r
Chairmqn
Five Cooperating Roll bar O anizations
Enclosure
cc: L. P. Schoene
F. T. Lynch '
Dicccnt to Awaru-Noo. 115,
116, 117 & 11E~
Cases Nos. SG-17-E, SG-20-E,.
SG-22-E & SG-26-E
SPECIALyBOARD OF ADJUSTMENT N0.
605
Dissent of Labor Members
These Avrards all involve one question, namely, whether a carrier can
escape the obligation to give, sixteen hours advance notice of force reduct_cas
under emergency conditions pursuant to Section
4
of Article I of the Febraarr 7,
1965
Agreement by the device of temporarily suspending rather than abolishing
positions.
Just on the face of Section
4
of Article I the conclusion.
fir,
these A:;ards
that the sixteen-hour notice is not required if there is a temporary suspension
of positions is inexplicable. Neither the definition of the carriers' rights
nor the recuirement of the sixteen-hour notice is phrased in terms in any -:ray
depending on either abolition or suspension of positions: "a carrier shall have
the right to make force reductions under emergency conditions" and "Sixteen hours
advance notice will be given to the employees affected before such reductions
are made." Certainly no one can doubt that in these cases there were force
reductions; the whole claim of the employees is for the pay they lost through
forces being reduced without their being given the requisite notice; the claim
does not depend in any degree on whether positions were abolished or suspended
or left undisturbed.
There is no reference in Section
4
of Article I (or, for that matter,
anywhere else in the Agreement) to suspension of positions, and the only reference in the section to abolition of positions is in conjunction with force
redu :-ions and then in the context of a limiting proviso on the conditions
under which emergency force reductions are permitted at all: "provided furter
that because of such emergencies the work which would be performed by the =:cumbents of the positions to be abolished or the work which would be 7erfc=~_
the emnlovees involved in the force reductions no longer exists or c=c- -~
uerformed." (underscoring supplied). How one can conclude from this language, as
the Neutral Member does, that "Section
4
of Article I does not apply -in situations
where the positions are not 'abolished"' is incomprehensible.
The result is seen to be the more bitterly ironical when one reards the
history of the rule contained in Section
4
of Article I. That rule, in less
rigid terms, had its `origin in Article VI of the national agreement of Augast 21,
1954
to which fifteen non-operating organizations were party. That agreement
vras a very comprehensive one involving organization proposals with respect to
vacations, holidays, healtb and welfare, premium pay for Sunday work and free
transportation and carrier counterproposals on thirty-one rules matters. Carrier
_ 2 _
Proposal Number 11 was for a rule permitting abolition of positions or force
reductions with no advance notice in the event of a strike or emergency affecting the operations or business of the Carrier.
The entire dispute in which this proposal was involved came 'eefore
Emergency Board No. 106. The carrier witness on their Proposal N=Ler
-1= .,_:.
Mr. John J. Sullivan, Manager of Personnel, Southern Pacific Ccmrany, Pacific
Lines. Mr. Sullivan testified that many rules of non-operating cra=ss rec::ired
advance notice of force reduction without exception for emergency ccnditfon:
beyond the carrier's control and that the period of notice required rar_ed frcm
one to six days, averaging 48 hours. Moreover, said Mr. Sullivan, even where
there was no rule requiring advance notice or where the required notice v,as
given, the carrier, in order to escape liability, had actually to atolicb the
position; merely suspending the positions would not do. Transcript pp. 21532156. (Third Division Awards Nos..3701, 3838, 4001, 4327, 5178 and 6471 illustrate Mr. Sullivan's point as to the insufficiency of suspension for escape
from liability.)
Emergency Board No. 106 was evidently impressed by Mr. Sullivan's testimony and recommended that the organizations agree to a rule permitting t=e
carrier, without advance notice, to abolish positions or reduce forces "wher
emergency conditions arise over which a carrier has no control, which actually
cause the work being performed by certain of its employees to cease to exist . . ."
See Report of Emergency Board No. 106, pp. 63-64. But the unions felt so
strongly about the right of their people to have some minimum hours of notice
before layoff even under these most extreme conditions that they refused to
accept the Emergency Board recommendation. They did agree, however, that Vander
the stated conditions forces might be reduced upon giving sixteen :ours advance
notice. It is the rule then adopted, with some further restrictions, that
Section 4 of Article I preserved against the general prohibition of force
reductions contained in the February 7, 1965 Agreement.
It is only in light of this history that one can appreciate the t-.:e
enormity of the wrong that has now been imposed by the Neutral Member upon the
signatory organizations. Not only does he now hand to the carriers by interpretation a concession the organizations specifically refused to agree to
fifteen years ago, but now he says the device by which it may be made effective
is the very device (as distinguished from ,job abolition) that was acic:owloded
earlier as being ineffective in circumstances where ,job abolition would have
been effective.
Truly, there can be no better example showing why unions ca_-mot afford
to submit agreement-interpretation to arbitration. The precise point they
refuse to concede in negotiations is stolen from them by arbitration of an
interpretation dispute.
I
COOPERATING RAILWAY LABOR ORGANIZATIONS
G. E. Leighty . Chairman John J. McNamara · Treasurer
Railway Labor Building · Suite 804 Fifth Floor, VFW Building
400
CodeFi202rst SRE
f
SII.
Washington, D. C. 20001 Code.200 Ave6 N7L . Washington, D. C. 20002
t v r .. ..· , a,:~ lln.`_,s.6,y'~R1awnNyNbaAfi9LVrira,Ynu.e.-. ..·.h~ ~_.,.,.,w ;VWwaw i».s.,._.t
.n
.. .,.- ...
· I I
· August II, 1969
Mr. C. L. Dennis j
Mr. H. C. CrottyJ
Mr. A. R. Lowry ` . i
I Mr. C. J. Chamberlain
Mr.
R.
W. Smith ,_
SUBJECT: Disputes Committee No. 605
I
February 7, 1965 Agreement
1 - Awards No. 119 to 127 inclusive
(Clerks Cases)
Dear Sirs and Brothers-
I _ I am enclosing herewith a copy of Awards No. 119 to 127 inclusive which were i,
· signed by Referee Rohman on August 7, 1969. We discussed several of these cases
with Referee Rohman and the Chairmen of the three carrier's conference committees.
' r
Inasmuch as the Referee has affirmed his decision in Award No. 43 to which we ,
dissented, we are again dissenting in Award No. 124 which relates to the same subject.
A copy of that dissent will be furnished you in the next few days.
With this one exception, the decisions of the Referee quite generally follow the
lines of interpretation which we contend are correct.
. i:
Fraternally yours,
Choi ,
. Five Cooperotinp Railway bor O anizations
s
cc: L.P., Schoens , , , .
Frank Lynch
', .