z l
PUBLIC LAW BOARD NO. 183
___ -_ _., _~_
Parties: hailroad Yardmasters of America
and . . .
Consolidated hail Corporation
tiuestlun at Issue: 1%iether the arrangements made by Conrail
with connecting railroads involving changes '
in handling of traffic in the Chicago area
wnich resulted in the reduction of the
amount of worn at Conrail's 59th Street and
51st Street Yards, ana in the number of Yard
masters wmployed at 59th Street Yard, constitute
violations of the tiegional hail heorganization
Act of 1973, particularly Sections 503 and
506
thereof.t,
Discussion: Sections
503
and
506
of the hegional Hail Reorgani-
zation Act, the statute herein involved, states:',
"Assignment of Work"
"Sao 503. 'The Corporation shall have the
right to assign, allocate, reassign, reallocate
and consolidate work formerly performed on the
rail properties'acquirad pursuant to the provisions of this Act from's railroad in reorganization to arty location, facility, or position on
its system provided it does not remove. said worx
from coverage of a collective-bargaining agreement
and does not infringe upon the existing classification of work rights of any craft or class of
employees at the location or facility to which . _
said work is assigned, allocated, reassigned,
reallocated, or consolidated and shall have the -.
'. right to transfer to an acquiring railroad the
-.. ., work Vneideht to the rail properties or facilities
.;4cquired by said acquiring railroad pursuant to
.°'`this.Act; subject, however, to. the,provisions of
Section 508 of this title.U
"Contracting outs,
"See. 506. All work in connection with the
' operation or services provided by the Corporation
on the rail lines, properties, equipment or facilities acquired pursuant to the provisions of this
QGB l 016
Award No, 1
· L -
Act, and the maintenance, repair, rehabilitation,
or modernization of such lines, properties, equipment, or facilities which has bean performed by
practice or agreement in accordance with the provic3ions of the existing contracts in effect with
the representatives of the employees of the classes
or crafts involved shall continue to be performed
by said Corporationta employees, including em.
ployeea on furlough. Should the Corporation lack -
a sufficient number of employees, including the
employees on furlough, and be unable to hire
. additional employees, to perform the work required,
it shall be permitted to subcontract that part of
ouch work which cannot be performed by its employees, including those on furlough, except
where agreement by the representatives of the
employees of the classes or crafts involved is
required by applicable collective-bargaining
agreements. The term Tunable to hire additional
employees as used in this section contemplates
establishment and maintenance by the Corporation
of an appranticeahip, training, or recruitment
program to provide and adequate nutaber"of'akilled
employees to perform the work."
This present dispute stems from the efforts of the
Congress to restructure the existing northeast railroads presently in
judicial- reorganization proceedings, into
a
single viable private profit
making railroad corporation to operate over the northeast territory with
the rail properties, facilities and employees o~ the acquired insolvent
railroads. The Congressional efforts for this objective materialized in
the paseage,of Public haw 93·236, signed by the:presidant on January 2,
1974,
which law is cited as fiegional hail Reorganization Act of
1973.
The statutorily created corporation charged with furnishing this essential
rail service is the Consolidated Rail Corporation, or more familiarly
known as Conrail.
Conrail commenced operations on April 1, 1976 when
it took title to all the component railroads conveyed to it. Conrail on
this date sought to initiate certain changes in the traffic flow in the
Chicago area pertaining both to eastbound and westbound rail movements.
Pt3 /t33a
Award No. 1
3 .
The Organization protested that this Conrail action breached certain
sections of'Public Law 93-236, namely, Sections 503 and 506 when it
made arrangements to divert portions of Conrail business away from the
former Penn Central 55th and 59th street yar,3s as well as the former
FVie Lackawanna 51st yard, to the Zlearing ~ard of the Chicago Belt
Railroad and the Blue Island and Gibson Yards of the Indiana'Rarbor'
Belt Itailroad. . Neither the Chicago Belt or the Indiana Harbor Belt
hailroads were component railroads of the Consolidated Rail Corporation.
While these two carriers were ind®ppndent corporate entities, several of
the component railroads constituting Conrail had an ownership interest
in these two carriers.
The Organization protested to Conrail that the
diversion of part of its former business to the non Conrail properties
caused a loss
of
positions at the 59th Street, the 55th Street and the
51st Street Yards. The Organizations protest was initially filed on .
April 5,,1976 wherein it sought. to have a Board', of Arbitration established
pursuant to Section 507 of Public Law 93-236,_ Conrail at first stated
there was no violation of Sections 503 and 506 of the aforesaid Law, and
later contended it did not agree with the Organizationla statement as to
questions which 'were to be submitted to arbitration. After the Organisation set
a.
deadline for striking Conrail,, the Carrier sought a court
order Go restrLin such direct action. As part of the resolution of the.
~udicial proceedings, the ,Court .directed-Conrail to arbitrate the dispute.
. On October 18, 1976 the parties executed an agreement to_eatablish a Board of Arbitration. . The following day, the partisan
members of the Board selected the neutral, member., and. on November 2, .the
National Mediation Board issued its official certificate of appointment
to the Neutral Member. On November 23, 1976 the Board met in Chicago,
,PLO/836
Award No. 1
Illinois to hour testimony and receive evidence from the parties in
interest. All parties were accorded an opportunity to directly examine
and cross examine all witnesses and to offer such rebuttal material as
they deemed necessary,
The Organization took advantage of the opportunity
offered both aides to file post hearing briefs, and filed
its
post hearing brief on December 6, 1976. The Carrier declined the opportunity
to file a post hearing brief.
Organizations Position
1
The Organization stressed that the Hoard of Arbitration was construing a statute and not a collective bargaining agreement.
It added it was a somewhat unusual statute wherein the Congress prescribed
exactly what Conrail could do. The organization asserted that Conrail
is not in the same category as a privately owned railroad. It was
created by Congressional act and 'financed
by
public moneys. The Law
establishing Conrail required the affected Unions to agree to certain
stipulations and, in turn, required Conrail'to.operate within prescribed
operational requirements.
The organization stated-Sections 503 and 506 prescribe the limitations which,the Congress has placed upon Conrail. Were
it not for Section' 503, Conrail would nave no right to assign, allocate
or consolidate the work formerly performed by the rail properties it
acquired. It was only by statute that it naa'received the right to shift
work around within its system. The Organization added that in return
for the right to shift work within the confines
of
the properties conveyed to it, Conrail was restrained from taking work covered by one
P46
/sad
collective bargaining agreement and shifting it to employees outside the
coieragexof the agreement.
The Organization stressed that no Conrail employee
had any seniority rights either on the Belt Railway of Chicago or the
Indiana Harbor Belt Railway. It added that the Implementing.,Agreement
it executed with Conrail on August 21, 1975 establishing Yardmaster
seniority districts on Conrail, conclusively proved thia fact. When
Conrail shifted work from the newly created seniority district to two
railroads which were not included in the now seniority district, it
breached the Implementing Agreement, as well as Section 503 and
Section 504.
The Organization stated that the Carrier also
violated Section 506 because it was in effect subcontracting work to
the Belt Railway and the Indiana Harbor Railway contrary to the provisions
of the aforesaid Section. The Chief Operating Officer of the Carrier
admitted, in his letter dated April 23, 1976 to the UTUes Legislative
Director, that Conrail was paying these two railroads for the switching
servico- rendered it. The Organization stated that this is no different
than Conrail paying General Motors Corporation for performing work nn.
locomotives.or Westinghouse Air Brake Company for repairing' air brake ,
equipment, or paying an outside contractor to rebuild a main line. The
Organization stressed that Section 506 prohibits Conrail from subcontracting
work unless Conrail lacks a sufficient number of employees to perform the
work. In this case Conrail has a sufficient number of Yardmasters ready
and available to do the work. Conrail Yardmasturs formerly performed
the work. Since the Implementing Agreement did not encompass the locations to which the work was transferred, Conrail also breached its
pL/3/83a
Award No. 1
-6ImplementSng Agreement with the Organization.
The organization also noted that the Carrier
stressed that the operations in question involved "pro-blocking" of
trains. It statue that this is not the issue. The Organization
stressed that it interposes no objection to a given carrier preblocking trains for direct movement through the Chicago Gateway. '
What it is concerned with in this dispute is the switching of trains
and then assembling them into nblocke& trains by the crews of the
Chicago Belt Railroad and the Indiana Harbor Railroad. The Organization alluded to the switch lists, the inbound and outbound lists which
it introduced into the record, which clearly reveal that cars are
switched, blocked and assembled by the crews of these two carriers who
are outside
of
and not a part of, the C9nra11 Corporation, The Organization emphasized that the evidence shows that the Burlington Northern
sands mixed freight to the 114lsaring Yardn of the Belt Ra32xay^to be
switched into blocked trains for diapatchment to points on the Conrail
system. This is the nub of the instant dispute before this Board.
The organization also a17,uded to the practices
of other western railroads such a® the Santa Fe, the Rock Inland, the
Boo Line and the Chicago and Northwestern, all of whom used to make
direct interchange with the component railroads.pf Conrail at the facilities of these component railroads, but now send their eastbound traffic
either to the Indiana Harbor Belt or Belt Railroad to be switched and
blocked at the yards of these two carriers for outbound movement., thus
eliminating the switching work formerly performed by the component railroads of Conrail. The organization added that on November 1. 2976
Conrail issued instructions whereby its former Penn Central
westbound
· PG B l 33
0
Award No. 1
-7-
traffic will be sent directly to the Indiana Harbor Yard for switching
and blocking by other than Conrail employees. The Organization stressed
that "pre-blockadk or nrun through" trains are not the issue in this
dispute, `but that traffic which is diverted from the former Penn Central
and Erie Lackawanna yards and directed to the Indiana Harbor Belt and
Chicago Belt Yards for switching and assembling, to the detriment of
Conrail employees, is the issue here.
The Organization stated Conrail is engaging in
clear and patent violation of Title V, Sections 503 and 506 of Public
Law 93-236,
and this Board should direct Conrail to return the work in
question to be performed at the properties conveyed to Conrail,, and
require this work of switching, blocking and assembling the traffic ,
be done by Conrail employees covered by 'existing collective bargaining
agreements with Conrail.' ..
Conrail's Position .
The Carrier concedes that after April 1,
1976
certain changes were effected in the pattern
of
handling cars for eastbound movements by certain railroads: It added that certain ofr.the
change* reduced the amount of work that had to
be
performed at the
Conrail Yard at 59th Street (formerly Penn Central) and the
51st
Street
Yard (formerly Erie Lackawanna) resulting in a reduction of two yardmaster positions at the
59th
Street Yard. The Carrier stated that the
Organisation has particularly complained about the change in the traffic
flow of BN, alleging that before April
1, 1976
the BN delivered cars
in interchange to 59th Street Yard where they ware classified for east.
bound movement. After April 1, 1976 changes were made by the BN in the
· PG8 ig3n
Award No. 1
_ b -
pre-blocking of cars. The hN made up drafts in its Cicero Yard for
various destinations on Conrail's lines such as Selkirk and
Y:lkhart. These care were delivered to Conrail at established interchange points to the Belt Railroad of Chicago or the Indians Harbor
Belt. The Conrail road crews then picked up these blocks and operated
them as an eaatbound road train. The Carrier stated that this was the
reverse of a long existing pattern of westbound traffic. Since the
Penn Central merger, and even prior to that on the New York Central,
eastern roads pre-blocked cars and delivered them to the BN without
further classification at Chicago. These cars generally moved by way
of Cicero but occasionally used the Belt Railroad of Chicago if the
regular route was blocked. Conrail asserted that this particular method
of operation eliminated the need for handling or switching many cars
through the 59th Street Yard and tile 51st Street Yard.
The Carrier stated that under the existing tariff
structure, the delivering carrier in interchange service determines
whether to interchange by direct delivery to.t&e next line haul railroad
or to use an intermediate switching railroad. 'If it uses an intermediate
switching road it pays the switching. charges from its share of the line
haul revenue. The receiving carrier has no control over this decision
of the delivering parrier. The Carrier emphasized that this aspect of
traffic routing is not subcontracting and bears no relattonahip to subcontracting as this term is used in the railroad industry.
The Carrier asserted that the Organization is in
error when it contends that the changes in the handling of-traffic
constitutes a violation of the Regional Rail Reorganization Act of 1973,
Pt,b X830
· Award No. 1
i.e., Public Law
93-230,
and particularly.of Sections 503 and
506
E
thereof. ,
.,
. _ With retard to Section $03,.,Oonrail stated that
the Congress, in return for unprecedented employee protection benefits,
gave this Carrier complete freedom to assign, allocate and consolidate
work within its system. The only restriction placed on Conrail by Sec
tion 503 was that it could not remove work from the coverage of a nollea
tiv® bargaining agreement or invade the existing classification work
rights of employees at the facilities to which the work was assigned.
The Carrier stressed that the purpose of Section
503 was to enable it to function more effectent7y. It was recognized
that there would be situations of cross representation and situations
where work was performed by one craft on one railroad and by soothe= on
a different railroad When several railroads were combined which had .,
bargaining relationships with 24 unions in approximately 280 agreements. ,
The Carrier stated that the,Urganization makes a
basic error when it concludes that because Section
503
permits the
transfer and assignment of work anywhere within the Conrail system' it
therefore prohibits Conrail from assigning work off the system, i.e., ,
to any outside railroad. The Carrier emphasized that Section 503 simply
does not treat the sutject of·tranaferring work to a railroad who is not
a part of the Canrail system, It only deals with the internal assignment
of work within Conrail. This Section sought to remove existing restrictions from Conrail, but not to create new ones.
The Carrier stated that only
it
Section $03 not
breached by the actions complained of by the organization., but these
actions by the western railroads to utilize the yards of the Chicago
PG4
/$,3a
Award No. 1
- 10 -
Belt or the Indiana liarbor belt is nothing more than a decision to use
an interchange point which is a right these western roads have always
had, Such a decision does not constitute arms change in operating
practices.
Moreover,
Conrail stated, such a decision by these western
roads is a matter over which it has no control. ,In any events Conrail '
emphasized that section $03 has no relevance to this disputa'arid obviously,
has not been violated.
Conrail further asserted that the Organization is
also in error in contending that Section 506 has been breached. It
noted several reasons why the language of this Section has no application
to the instant dispute. First, the language addresses itself to work
"provided by the corporation" on the acquired lines cannot be read as a
restriction on the performance of work by other carriers on their lines
such' as pre-blocking of cars, or the routi:igof through traffic,, or the
selection of interchange points. The Carrier stated that these matters
are not the work or operations it provides, but.rather is the work and
operations consisting of traffic delivered to. it by its connecting
carriers. Conrail does not control other carriers in the delivery of
traffic 'or in the determination of what interchange points or methods
these delivering carriers may find desirable..
Secondly, Section 506 doed not purport to expand
the work which'eanpioyessWere entitled to perform beyond the level which
they enjoyed before the conveyance. It refers to "work" which has been
performed by a practice or agreement in accordance with the provisions
of existing contracts in effect with the representatives of the employees of the classes or crafts involved. The Carrier stated this
section is part of Title V intended to present employees from being
A3 / $3
a
Award No. 1
placed in a °worself position' but not to place them in a "better_ position, as a result of the acquisition. Conrail asserted that Section
506 must be read in conjunction with Section 504 which requires it to
aasurne and apply all existing collective bargaining agreements on the
lines it acquired.
The Carrier stressed that Section 506 preserved
existing scope rules and practices. It did not expand on them. The
Carrier stated that the organization has conceded that its Schedule
Agreement was not violated by the complained of activities. The Carrier
added that Section 506 looks to existing agreements and practices thereunder for its content. It imposes no obligation to assign work beyond
those imposed by collective agreements.
Conrail noted that the Organization may contend
that "practices" have been changed while Section 506 freezes all existing
traffic patterns and work practices without regard to existing agreements,
Conrail added that such a construction would militate against the.Congressional mandate that Conrail should operate as a profit making company
in an efficient manner consistent with safe operations. These.objectives
cannot be achieved if the Statute is construed as 11freeging" all individual practices.
Conrail added that it should also be noted that
Section
506
referred in detail to the maintenance, rehabilitation and
modernisation of properties, equipment or facilities. It stated that
Section 506 was included in Public Law 93-136 primarily because of the
concerns expressed by the Shop Craft and the Maintenance of Way organize.
tions who have had long standing disputes with this Industry as to the
PL6X830
Award No. 1
- 12 -
subcontracting of work. Conrail alluded to several national agreements
negotiated with these organizations which dealt specifically with the
issue of subcontracting, Conrail also noted that Section 506 contains
language referring to the establishment of apprenticeship training
programs when it is determined the Carrier has a lack of skilled employeea to perform the work. It stressed that carriers in this Industry
do not employ apprentices in the craft or classes of yardmastera, yard
clerks, or yardmen. Yardmaatara are almost invariably promoted from
the ranks of yardmen, clerks or telegraphers.. It is an on-the-job
training process.
The Carrier stated, moreover, that even if
"practice;' was an issue in this cases it has not changed arty practice
but merely continued an existing ono. Carriers in this Industry have
long cooperated with each other in blocking cars for,intarchange
delivery. It added that no other labor union has ever contended that
the grouping of cars by one carrier is ficoritraeting outs work. It is
rather a reciprocal arrangement that
woziks
for, the mutual benefit of
the carriers, the employees and the shipping
public.
The Carrier also
alluded to the National Agreements of iyfeqr 1971 and January 1972 which
now permitted a line haul carrier to move to a connecting carrier at a
terminal for ths-.purpose of picking up or delivering a train. Prior
to these nationa± `agreemerita, only a yard crew could deliver care to a
connecting carrier in interchange service.
Conrail stated that its road crews now receive
their over-the-road trains from the belt Railway of Chicago or the
Indiana Harbor Belt or other connecting carriers in lieu of receiving
them at the former Penn Central 59th Street yard or the former FrL 51st,
Street lard, as it generally was done prior to April 1976.
PL h I 830
Award No. 1
13 r
Conrail also stated it is important to recognize
that Title V is not a job freeze but an earnings protection provision
for employees who may be adversely affected by the establishment 'and
operations of Conrail. The Congress was aware that it was necessary
for Conrail. to be able to rspaed
up
the movement of traffic through
terminals in order to help meet competition from other modes of transportation. The Public haw did not bar these changes but did require
Conrail to protect the earnings of its employees who might be adversely
affected. Conrail also alluded to the Final System Plan which was the
blueprint for its operations. The Plan contemplated train blocking with
the resultant reduction in employees including yardmasters.
In summary the Carrier stated that there are no
provisions in Title V, including Sections 503 and 506, which impose
restrictions on the Carrier's method of handling the interchange of
traffic where such restrictions did not exist prior to the enactment
of the Regional Rail Reorganization Act, and consequently, the Carrier
asserted it has not committed any violation of 'the Act in making its
traffic arrangements at the Chicago Gateway.
Findingas
·'
. The Board is initially constrained to make a few
preliminary observations about this case.. It is not clear to-the Board
how Conrail'could be in violation either of the requisite Public haw or
the August 1975 Implementing Agreement if and when the Eastbound Delivering
Carriers' such as the Burlington Northern, the Chicago and Northwestern,
or the Santa Fe, etc., chose now to deliver their trains for switching,
PL3
/$3a
Award No, 1
- 14
blocking and assembling to the 'belt Railroad of Chicago or the Indiana
Harbor Belt, rntliar than the former Penn Centrah a 59th Street Yard or
the former h'~'ia-Lackawannals 51st Street Yard,, from which Conrail road
crews could pink up the train and make their
eastbound
road trip. The
board is unaware of'how the receiving carrier in an interchange delivery
could mandate the delivering carrier as to where it should send its cars
for pickup. Whatever violation, if arty, that could occur, would have to
take place in those situations where Conrail, in making its westbouni
trip, now had its care broken up and reasseaubled at the Yards of the
Belt Railroad of Chicago or the Indiana Harbor Belt rather than at the
59th Street or the 51st Street Yards. In the latter situation, the
Organization may contend 'that Conrail has breached its statutory
obligations.
The Board is also constrained to note that the
evidence of record shows that fliers is involved in the case more activities and functions than "pie-blockedll or 'Irun throughn trains. The
Board finds that the Organization has proved-that the Belt Railroad and
the Indiana Harbor Belt crews performed switching and classification
services for both eastbound and westbound trains.
The Board now directs its analyais'to the heart
of the dispute, namely,,whatkier Conrail in directing and permitting
awitching'and classification work, on trains under its control and
dominion, to be dons by the Belt. Railroad of Chicago and the Indiana
Harbor Belt Railroad, violated 8ectlons 503
and
506 of Title V of Public
Law 93-236. ~'
FL & I $3D
Award No. 1
· 15
The board's analysis and review of these two sections has to be marls in the context of the entire statute and the Congressional debates surrounding the passage thereof. This analysis leads
it to the conclusion that there has been no breach of the two aforementioned sections. The board finds that Title U is captioned "Employee
Protection" and its basic and fundamental purpose was to ensure that no
covered employee would be adversely affected by the establishment and
operations of Conrail when it acquired the several northeast railroads
being reorganized under the aegis of the Federal ,judiciary. The statutory
protection, is aptly captioned in Section
505
as "employee protection',
and not "Job protection." The legislative scheme envisioned by the
Congress of the United States was to protect and make whole the employees
rather then their
4obe
of the acquired railroads. The legislative record
shows that when the members of both the Senate and House Committees questioned sharply and critically the railroad representatives both of
management and labor, concerning the liberality of the' protection benefits
being afforded the affected employees, the rejoinder always was couched
in terms of granting the protection in order,ta permit the new entity,
i.e., Conrail, to be able to function with the necessary freedom in order
to become an economically viable private profit making corporation. While
it is undoubtedly true that the Congressional colloquy was couched in
terms of permitting Conrail to have the greatest latitude in making all
1.
r
the necessary assignments, relocations, and consolidation of existing
personnel. within the Conrail System, i.e.,, Section
503,
nevertheless, there
is not a scintilla of evidence in the Act that Conrail was to be proscribed
from making any changes in the flow of its existing traffic patterns that
would enable it to maintain adequate and efficient rail service in the
PL6/83a
Award No. 1
J,6territory"it served. The Board finds nothing
in'
Section 503 or any
other relevant portion of the Public Law that denies Conrail the right
to initiate or to utilize sound operating procedures in the Chicago
Gateway to maintain an efficient system. If the utilization of such
procedures adversely affects protected employees-, then they are to be
made financially whole, but the Carrier is not required to "freeze"
their jobs. In short the quid pro quo for employee financial protec.
tion was the right to elinlnate jobs found unnecessary in the reconstituted
operations of Conrail. To find that Section
503
granted the Carrier the
right to reorganize and realign only its forces within Conrail system
would not only negate the general Congressional intent and purpose 3n
enacting Public Law
93-2365
but would also fly in the face of the provisions of the Final System Plan which indicated that when the new
entity, Conrail, commenced operations that-there would be a decline of
one percent per year for the entire 10-year planning period for yard..
masters, switch tenders and hostlers. The Final,Syatem Plan on p 161
states:
"Yardmasters and yard.clerks, however,
were assumed to vary directly with the
projected reduction in switching requirements resulting from application
of an improved blocking plan."
Table 2 on the same page 161, shows the projected
manpower requiremepts of yardmasters for the period from
1976
to
1965
declining from
1,,155
to
919. '
It is in light of this Congressional intent and
the plans of the architects of this new rail,systsm that compel this
Board to find that Section 503 has no relevance to this dispute because
it did not address itself to the matter of Conrail devising and instituting
PI-6 /$30
Award No. 1
operational programs that would entail utilizing railroads and facilities outside corporate universe of Conrail. Nothing in Section ;,'U3
prohibits Conrail from so operating, and the expresses Congressional
plan aril purpose in establishing Conrail,, indicate that
it
was
to
use
all appropriate means to overate efficiently, suu5act to granting the
prescribed financial protraction to those covered employees adversely
affected. There were other expressed limitations in Suction 503, but
they era not in issue in this case.
The Hoard also finds no support for the Organization's position in Section 506. It is a distortion and a misconstruing
of the term subcontracting se applied and understood in this Industry,
to hold that the use by a delivering line haul carrier of the,aervicea
of a switching or belt line railroad to Agliver cars in interchange,
constitutes subcontracting. The Board sfi4~es that it has never heard
of such. a. concept advanced on the Fourth Division of the National Railroad Adjustment Hoard where this Organization normally and customarily
processes its grievances against carriers for alleged violations that
i
the use of a switching railroad is a violation of its schedule agreement.
Nor is the Board aware of any grievance aver prdcaesed by trainmen on
r
the First Division when their delivering carrier utilized a switching
railroad to transport a cut,of cars or a train to a receiving carrier
it was using improper methods. ,It is an established practice in this
industry to use belt railroads in busy terminals to deliver care in
interchange from the delivering carrier to the rbceiving carrier when
the delivering carrier deems it necessary or app~Opriate. The belt
railroad has never been treated as a subcontractor of the delivering
carrier. If ouch a concept is to be created and instituted,
it should be done by a meeting of the minds of all the affected
pt,6 183
0
Award No. 1
to -
parties and crystallized in a formal legal document. Such a far reaching
arrangement, which is at variance with established Industry practices
should not be established by arbitral decree. While the Board is aware
the Organization is contending that its rights on this case are derived
from a statute and not an agreement, the Board finds that its analysis
is still correct.
The hoard, however, finds aside from Industry
practice, there era other reasons why Section X06 does not support
the Organization's position. The very language of this Section militates
against this, for exempla, the Section deals with:
"All work in connection with the
operation or services provided by
the Corporation on the rail lines',
properties' equipment or facilities
acquired . . ."'
It must be noted, however, the work in issue is
not being performed on the property of Conrail. The Organization is
protesting about work being done by the Bait Railroad of Chicago or the
Indiana Harbor Belt Railroad on their property. The switching and
classification work is done on the property'of.these belt railroads,
and it is net work provided for or done on the acquired lines. If
Conrail finds that it does not have to have the work performed on its
acquired lines or property, 'there are no provisions in Section 506' or
arty
section
of the statute, that requires it to have it performed thereat.
The Board
is
a7.so compelled to take notice that in this Industry for the
past
15
Yam's there have been extended and exaccaromtodoontraveray on
the aub,,ect of subcontracting. The Second Division of the National
Railroad Adjustment Board and the Special Board of Adjustment established
pursuant the provisions of the September
25, 196!r
National Agreement ha
. pL6
/83c
Award No. 1
19 -
long been the battleground for these disputes between the Carriers and
tt,e Shop Crafts. At no time to this board°s knowledge has the Yardmaatorst
Organization been a party to any
subcontracting dispute
. The Hoard con
cludes that Section
506
was enacted by the Congress to address itself to
the subcontracting problems of the Shop Crafts' and it was not within
the
contemplation of
the enacted legislative scheme to require Conrail
to perform all the blocking, switching and classification of earn in
transcontinental interchange movement on the properties that it acquired
by
conveyance on
April
10
1976,
because of the subcontracting limitations.
The language of Section 506 as well as the general history of subcontracting
in this Industry lead the Board inexorably to the conclusion that this
Section is not relevant to this dispute,
In summary, the board finds no support for the
Organization's position
in the relied upon Sections of the cited Public
Law.
Answer to question At Issues
The
arrangements made
by Conrail do not violate
the Regional Rail Reorganization Act of
1973,
particularly Sections 503 and
506'
thereof.
Jaco a berg, a rman and Neu r_bfemTier
r
A. T. to,,Jr., p oyse ,epresen ative .. De7~-TZr3er-Represen£ative
~a
PUBLIC LAW BOARD NO. 1830
Parties: Railroad Yardmasters of America
and
Consolidated Rail Corporation
DISSENT OF A.T. OTTO, JR., EMPLOYEE REPRESENTATIVE
I dissent. The opinion of the majority of the Board
evidences an inability to view Title V of the Regional Rail
Reorganization Act of 1973 as a federal statute. The
majority treats this unique statute as if it were a collective
bargaining agreement being submitted to the National Railroad
Adjustment Board; it is not. Title V is an integral part
of a complex, extensive and bold design to save from certain
collapse the economy of the Northeast and quite possibly
the entire nation. '
The entire statute is novel. _Certainly Title V is
unique in our history. Many of its provisions know no precedent
in contract or law. Consequently, its provisions must be
interpreted with great care and with considerable caution.
Strict adherence to the canons of statutory construction
is essential lestIone interprets this statute in a manner which
may be very.desirable to the interpreter but contradictory
of Congress' plan.
Pie 1830 - two
I
_ 2 _
The Board fails to treat Title V as a federal law and
subordinates the plain language of the governing statute,
as well as the clear intent of Congress, to the Board's
view of what it believes the law should be. The opinion also
ignores the clear and positive legislative history of the
governing sections bf the law.
In order to support its conclusion that Sections 503
and 506 were not violated by ConRail, the majority has
itself violated every applicable rule of statutory construction.
1.. Sections 503 and 506 constitute specific.statutory.
limitations on the actions of ConRail. They must be inter
preted and applied together, in a~ri materia. The provisions
of a statute must not be considered as isolated fragments
of a law, but as a whole, or as parts of a connected,
homogeneous system. The Board, however,.considered and
applied Sections 503 and 506 in vacua.
2. The primary canon of statutory construction requires
the plain language of the statute to govern its meaning. It
has often been held that courts should be slow to impart any
other than their commonly understood meaning to terms employed
in the enactment of a statute, and it .is the policy of the
courts to avoid giving a new, strained or forced meaning.
To the contrary, it is a general. rule of statutory construction
that words of a statute will be inturpreted in their ordinary
pL4 1830 _ pwp
.I
_ 3 -
acceptance and significance, and the meaning commonly attributed
to them.
The plain language of the statute is clear and controlling.
The majority opinion ignores it. Section 503 authorizes
ConRail to move "work formerly performed on the rails
properties acquired . . . to any location . . . on its
system". In addition to the "plain language" canon here
violated, the Board also contravenes that rule which holds
that the expression of one - in this case the movement of
work "on its system" - excludes all others.- the movement
of work to other systems. And while Congress did provide
for the transfer of work to other railroads in Section 503,
it provided for such transfers only to those railroads which
purchased rail properties under the Act.. The canon "expressio
unius est exclusio altetius" obviously applies and just as
obviously has been violated.
,. ,
The majority opinion erred in requiring the Congress
to present more evidence of the intend behind its law.
While admitting the language of the statute seemed clear, the
majority states it will ignore Congress' mandate unless the
Railroad Yard_mastbrs of America can produce "evidence in the
Act that
CunRail
was to be proscribed from making any changes
in the flora of its existing traffic patterns that would enable
it to maintain adequate arid efficient rail service in the
territory it served", or produce a provision in the Regional
PGs X830 - .~wo~
Rail Act "that denies ConRail tht, right to initiate or to
utilize sound operating procedures in the Chicago Gateway
to maintain an efficient system."
The opinion reaches the logical ultimate result of its
error when it concludes:
"To find that Section 503 granted the Carrier
the right to reorganize and realign only its
forces within ConRail system would not only
negate the general Congressional intent and
purpose in enacting Public Law 93-236, but would
also fly in the face of the provisions of the
Final System Plan which indicated that when
the new entity, ConRail, commenced operations
that there would be a decline of one percent
per year for the cntire 10-year planning period
for yardmasters, switch tenders and liostlers.
The Final System Plan on p. 161 states:
'Yardmasters and yard clerks, however,
' were assumed to vary directly with
the projected reduction in switching
requirements resulting from application
of an improved blocking plan.'
Table 2 on the same page 161, shows the
projected manpower requirements of yardmasters
for the period from 1976 to 1985 declining from
1,155 to 919."
Here, the opinion not only violates the plain language
of Section 503, it also substitutes the Board's judgment and
authority for that of Congress and blithely informs. the
Congress that to do what Congress has quite plainly ordered
to be done would be unwise. Its reliance on the Final System
Plan is wholly misplaced. The reduction of one percent per
year in thc~ number of yardmasters, yard clerks, et al., because
of an improved blocking plan refers to the. blocking plan which
?t3
I330· Awo r
-5would result from the merger of the six. bankrupt railroads
into Con Rail. The Final System Plan refers only to an
intra-ConRail blocking plan, as indeed it had to be since
the USRA had no authority over non-ConRail properties. The
decline of the number of yardmasters, etc., therefore, is
to be accomplished by such intra-ConRail operational changes.
The plain language of Section 506 also is ignored in
favor of the Board's knowledge "of the term sub-contracting
as applied in the industry".
Section 506 is unique in both form and content. Its
design is not negative, but positive; it places certain
affirmative obligations upon ConRail. ConRail quite. simply
is directed to continue to perform all work
which had
been
performed by the bankrupt railroads. Only if ConRail finds
itself physically unable to perform the'work due to a lack
of employees and it is unable to hire sufficient employees
to perform the work can ConRail contract out that work.
Even at this point, ConRail can subcontract only that part
of the work which cannot be performed by its employees.
The Board makes the irrelevant determination, however,
that "it has.nfver heard of such a concept advanced on the
Fourth Division of the National Railroad Adjustment Board
where this organization normally and customarily processes
its grievaraees against carriers for alleged violations that
(~8 /830-
.444-Pp i
- 6 -
the use of a switching railroad is a violation of its schedule
agreement."
The Board does not believe Congress should establish
such a concept:
"If such a concept is to be created.and
instituted, it should be done by a meeting '
of the minds of all the affected parties and
crystallized in a formal legal document.
Such a far reaching arrangement, which is at
variance with established industry practice,
should not be established by arbitral decree.
While the Board is aware the Organization is
contending that its rights on this case are
derived from a statute and not an agreement,
the Board finds that its analysis is still
correct."
Whether or not the Board agrees with Congress` actions,
it must carry out Congress' will. Refusal to apply the
plain language of a statute because, in the Board's opinion,
the concept embodied therein should not.have been addressed
by the Congress but instituted by private agreement, constitutes
so arbitrary and obviously abusive exercise of the authority
granted
by
Section 507 as to render Award No. 1 invalid.
3. Specific language in a statute governs general
language. Sections 503 and 506 impose~specific, well-defined
restrictions.upon ConRaih. Those restrictions govern here.
The majority opinion, however, dismisses the particular
limitations placed upon ConRail in favor of the general
congressional desire that ConRail's operations be conducted
in a sound,, economical, efficient manner. The logical effect
. P`8 ~g
30
-Awoi
of such reasoning is the ultimate rejection of all specific
mandates of the Congress regarding ConRail in favor of the
Board's concept of what constitutes a sound, economical,
efficient operation.
In any,.given set of facts, any individual provision of
Title V of the Regional Rail Reorganization Act of 1973, may
be antithetical to a particular Board's concept of sound,
efficient, economical operation. The specific provision of
law, however, controls.
It is true, of course, that Congress desired ConRail
to be successful. It provided financial aid and it provided
certain operational freedom. But it also placed certain specific
limitations upon it. Two of those specific limitations are
found in Sections 503 and 506. Section 503 permits freedom
of movement of work within and between the former rail
properties that make up'the ConRail §ystem. Section 506 '
requires ConRail to
continue to
perform.the work theretofore
performed key its predecessor railroads'unless it finds that
it cannot do so due to lack of employees.
Such direct explicit Congressional-mandates may not be
subordinated to the general desire of Congress to create an
"adequate, and efficient rail service", to "utilize sound
operating procedures", and to "maintain an efficient system".
Congress, of course, desired the accomplishment of these
ends, but within the framework of the specific restrictions
it was convinced the public interest required.
~L~ ~~30 " ~w0 / '
This Board has no authority to disregard those specific
restrictions simply because it disagrees with them.
4. Legislative history may be relied upon only if the
statute involved is vague on its face. Despite the clarity
of the language of Section 503, the Board, in considering
that provision, referred to its legislative history.., But
in doing so, the Board has to admit-that the history of
Section 503 is "couched in terms of permitting ConRail to
have the greatest latitude in making all the necessary
assignments, relocations and consolidation of,existing
personnel within the ConRail system". The Board then
disregards that legislative history with the argument that
there is no evidence in the Act that'ConRail was to be
proscribed in its actions to maintain,an efficient system.
Of course, the evidence desired by the.Board is to be found
in the plain language of Sections 503 and 506.
5. No language contained in'a-statute is to be considered
superfluous. In the interpretation of a statute, the
legislature will be presumed to have inserted every part
thereof for a purpose. It is a cardinal rule of statutory
constructipn that significance and effect should, if possible,
be accorded every part of the act, including every phrase
' h
and word.
In an apparent effort to reinforce.the weak, underpinning
of- its opinion, the Board engages in decisional overkill. Award
No. 1 holds that Section 506 is limited in its application
pLl3
r,~3o-A.tuo ~
9
to subcontracting' involving shop Craft unions and to work
which is required to be performed on the property of ConRail.
There is nothing in the language of Section 506 or its.
legislative history to support such an interpretation.
The interpretation errs in its limitation of Section
506 to "Shop Crafts". This is immediately apparent by
Congress' refusal to limit the language of its provision
and by Congress' inclusion of the words "all work in
connection with the operation or services provided by the
Corporation" in addition to the words "the maintenance,
repair, rehabilitation or modernization of such . . .
equipment." Only the words in the latter quotation would
have been necessary'to cover Shop Craft work. Congress went
beyond the protection of Shop Craft work to the protection
of "all work in connection with the operation or services
provided by" ConRail. These words may not be rendered '
superfluous by interpretation.
E.
Furthermore, Congress, it must be.assumed in the interpretation of this statute, was aware of the history of subcontracting in the industry and knew that the problem extended
well beyond.the.shop craft·ianions and the'employees they
represent: it involves clerical work, maintenance of way work,
signal.work,'and communications work. Congress was aware that
the organizations representing the employees engaged in that
work had seen 'the jobs of thousands of employees they represent .
1830 -A~uc l
- 10 -
lost through-subcontracting. Congress well knew that in the
opinion of some persons in the industry "sound, economical,
I
efficient operation" was synonomous with "subcontracting"
and Congress quite simply decided that such an
opinion .
should not prevail on ConRail. ^
i
Section 506 clearly was intended as a protection to
employees or - expressed in different terms - as a restriction
on management. Had Congress intended otherwise, it would
not have included the unique additional restrictions upon
i
subcontracting which requires ConRail to perform all work
i
unless it lacks sufficient employees and is "unable to hire,
additional employees" to perform that work; as well-as requiring
the institution of apprentice, training or recruitment programs.
Award No. 1 erroneously interprets Section 506 as a
deliberate design by Congress to liberalize subcontracting
in the industry; as such it thwarts'the purpose and
intent.
of Congress, violates its explicit command and is a disaster
to the unions and the employees they represent. According
to Award No. 1, ConRail is not restricted by Section 506
"or any section of the statute" from subcontracting any work
which is..not required to'be.performed on the property of
ConRail.' .. .
While the'Award holds that Section 506 is meant to apply
only to the Shop-Crafts, its conclusion effectively excludes
even Shop Crafts from its coverage since virtually no Shop.
Craft work must be performed on the property of the employing
railroad.
PLr3
i8~ ~- ~o i
_ 11 _
Virtually all clerical work can be performed on other ,
premises. Indeed, some work of almost every craft can be
performed beyond the property of the employing carrier,
On the other hand, and contrary to the opinion'.s intent,
the restrictions of Section 506 would apply to maintenance
of way work since almost all of that work must be performed
on the property of the carrier.
Award No. 1 views Title V as a contract and that is
its basic error. Title V is not a contxact, it is,a federal
statute. It is an essential part of a, grand, ambitious
design, first to save and then to revitalize the railroad
system in the Northeast. Because of .the tremendous human -
as well'as.economic - upheaval caused by the effectuation
of its plan, the Congress enacted a unique employee protection
arrangement included in which is Section 506. In enacting
this Section, Congress was not concerned with whether the .
Fourth Division, or any division, of the National Railroad
Adjustment Board or the Special Boards of
Adjustment
established under the Railway Labor Act had ever entertained
an RYA subcontracting case. Congress was interested only in
creating,d functional railroad system and in protecting the
employees. -, all of the employees -,.against_ the unnecessary
removal of~their work beyond ConRail.as a result of its'
creation
of
that system.
The Board limits its consideration to the exceedingly
narrow view of one interpreting a contract, not a statute,
and in doing so, not only misreads the plain language of
Ptre3 /!33
A
-·oe..n
i' I
.'
the law and its legislative history, but misunderstands its
own role as substitute for a United States District Court.
ConRail, in directing and permitting switching and
classification work, theretofore performed by its predecessor
railroads on'their property, to be done by the Belt Railroad ,
of Chicago and the Indiana Harbor Belt Railroad, violated
Section 503, because said acts constituted assignment of
work formerly performed on acquired rail properties to a
location outside its system. The switching and classification
work in question was work in connection with operations
provided by ConRail on rail facilities acquired from ConRail's
predecessor railroads, which work theretofore had been
performed by practice on said facilities. In determining
that said -work should not continue to ,be performed by ConRail
employees on ConRail property, ConRail violated the explicit
provisions of Sections 503 and 506.
X/P
A. T. Otto, Jr;/,rEmployee Representative
Date:'