The central issue in this case focuses on the interpretation of two sections of the 1982 (and 1985) National Agreement relating to the number of cabooses the Carrier is required to keep in service an through freight trains.
A brief history of negotiations on the issue of cabooses is necessary for an understanding of this matter. The 1982 National Agreement between the Parties, in its Article X, was the first to authorize the Carriers to opera=e cettal.i Lreight traimo without n caboose. The Agreement was preceded by the work of Emergency Board
No. 195 (established by Executive Order of the President. July 21, 1982) whose report an August 20, 1982 Said the groundwork for the October 15, 1.982 National Agreement. This Agreement gave the Carrier the right -to eliminate uabvvsee an certain types a£ trains, )?at provided a limit of twenty-five percent (25is) on the number of freight trains in through freight service that could be operated oabooseless. in the 1985 National Agreement, the Carrier was given the right Lo operate certain additional types of trains without a caboose, but the 25% limitation on trains in through freight service was not modified.
The 1982 Nationd) _1Vi'tameI%t did Ago, opscify individually tho trains in through freight service that the Carrier could now operate without a caboose. Rather, it set certain guidelines for the Parties to follow in reaching a more detailed agreement and called for arbitration if the Parties failed to resolve these questions. Eventually such arbitration was invoked, and in an award issued September 7, 1983, Arbitrator Leverett Edwards ruled on the previously unresolved issues and included with his award as Attachment A a list of trains in
through fright service approved for cabooseless operation.These claims were filed by members of a train ctf,rew alleging that on various dates in May through September 1988 they had been assigned 'Go work ttn.uao in l:hrough froight &ervice withnnt a ca)?QQse which were not listed among those permitted to be operated in this manner. A substantial number o£ additional claims making the same allegation have also been filed and await disposition of this claim.
(a) There shall be 258 limitation on the elimination of cabooses in through freight (including converted through freight) service, except by agreement. The 25$ limitation shall be determined on the basis of the average monthly number of trains (conductor trips) operated in through freight service during the calendar year 1981. Trains on which cabooses are not presently required by local agreements or arrangements shall not be included in such count, shall not be counted in determining the 25% limitation, and any allowance paid under such agreements or arrangements shall not be affected by this Article. A carrier's proposal to eliminate cabooses may exceed the minimum number necessary to meet the 258 limitation.d_However, implementation of the arbitrator's decision shall be limited to such 256 and shall instituted on the basis established below. In e event a carrier's proposal is submitted to arbitration, it shall be revised, if necessary, so that such proposal does not exceed 306 of the average monthly number of trains (conductor trips) operated in through freight service during the calendar year 1981 .
xt should be made clear at the outset that the facts of these claims are undisputed. The claimants were assigned to work caboose less trains not among thoro permitted to be operated in auah fashion by the Edwards' Arbitration award. The Carrier defends its action as
UTU General Chairman. The letter called attentscs. Lc 4eQL.ilhl'J"CTi - - - Article %, 1982 National Agreement and proceeded as follows:
when the instant claims were handled on the property, the Local Superintendent's response was to allow claims occurring prior to July 1. 1988, but to deny all subsequent claims, citing the Carrier's decision to invoke Section 5 of Article X, as set forth in its letter of June 10, 1988. These claims have been subject t0 farther disritgsinnq hPfwPPn thn Pnrtins without resolution and have now been referred to this Board.
The Union's basic contention is that the Carrier was given authority by Article X to end the use of cabooses on on(f 25% of all trains in through freight service. In its view, if the Carrier goes beyond this limit, it has violated the Article and becomes subject to the penalties of Section 7. Further, although Section 5 admittedly gives the Carrier the right to refuse to purchase new cabooses or make major repairs on existing ones, this authority must be read in light of the overall 25t limitation. By whatever means it may choose, and if
necessary by purchase or major repair, the Carrier must maintain a fleet of cabooses sufficient to tweet the 258 limitation or pay the two hours' pay penalty set by section 7.
The Carrier's basic contention is that Section 5 must be read without reservation acid .that it clearly contemplates a gradual reduction in the number of cabooses in operating condition. under these circumstanc:as, IL aasei LS LL 1x0.3 Lha right to carry through the implications o£ Section 5 without being forced to pay the two hours'
penalty each time that a cabnose i s not nvni lable because the fleet 9f cabooses has been irrevocably reduced by attrition. The Carrier
further contends that the history of negotiations over Article X supports its views regaralng Section 5.
Roma imprrtRnca to. Ls's5__?'arti~c. xsccr~s3.,tw..±hs~. aPrtiRS...t-W.s_ issue is being presented for the first time for adjudication on this property, and possibly for the first time on the pro erty of any Carrier signatory to the 1982 National Agreement. Th1.'s Board has made a -special effort to review the quite detailed submissions of the Parties as well as the contentions and reasoning advanced at the hearing.
From information submitted to the Board, it appears that in the course of discussions with members of the Presidential Emergency Board, the Parties exchanged a number of proposals relating to the purchase and repair of cabooses. According to the Carrier (and not contradicted by the union), it was the Union that first proposed language somewhat similar to.5ectioxi 5, suggesting thereby a method whereby the carrier could achieve some cost-saving during the course of the Agreement by failing to purchase any new cabooses or to make major repairs on existing cabooses. The Carrier states that on August 12, 1982, the Union proposed the following:
Later on the same day, the Carrier respondlad with the followings
Following issuance of this Report, the Parties resumed negotiations that were to lead to the October National Agreement. On September 1, 1982, the carriers :proposed the following:
The final wording, incorporated into the October 15 _ 1982 National Agreement, was identical to the Carriers' September 1, 1982 proposal and specifically did not include the limitation language embodied in the Unions' proposal of September 2 which would have added the clause "except where necessary to provide suitable cabooses on all trains or assignments where required."
Thus the history of negotiations leading up, to the adoption of Section 5 suggests that the final agreed-to wording specifically rejected any limitation on a Carrier's right to avoid purchasing new cabooses or making major repairs on existing cabooses.
The origin of much of the language of Article X can be found in the report of Emergency Board No. 195. After reviewing various aspects of the caboose issue, the Board concluded as follows:
The Board believes that the elimination of cabooses should be an on-going national program . This thought was carried over to Article X in the opening to Section 2. This language suggests that the Parties foresaw a gradual attrition of the Carriers' inventory of cabooses, ending at some point in the future with the "elimination of cabooses." The ~drding, "the elimination of cabooses should be an on-going national program" leaves little room for any alternative explanation although it does not set any timetable or deadline for achieving the "elimination of cabooses."
more directly pertinent to -the merits of these claims is the wording of Sections 5 and 7. section 5 directly authorizes the
Carrier to forego purchasing any new cabooses or performing "major overhaul" or "major repairs" on existing cabooses. As previously noted, no restriction or limitation is placed-on; this authority.
Section 7 is the penalty section, providing a two-hour payment to crew members whenever the provisions of Article X have not been observed. Specifically the penalty would apply whenever a train or assignment, furnished with a caboose prior to the 1982 National Agreement, was now, following the 1982 National Agreement, "operated without a caboose other than 1.n accordance with the provisions of this
Article "It is the Union's contention that the merits of the present claims are fully supported by the language of Section 7. Since the test of Section 7 (crew furnished a caboose prior to the 1982 Agreement but not following the Agreement) has admittedly been met, in its view, the penalty provisions of Section 7 clearly must apply. The Carrier responds by emphasizing the conditional clause in section 7 modifying or limiting the application of penalty, "other than in accordance with the provisions of the Article." In its viewr this clause refers to section 5 (among others) and thus if the reason for *e Carrieris failure to assign a caboose is its decision to invoke the authority granted it by Section 5, then no penalty is applicable.
It is important to inquire whether the Parties recognized the potential conflict inherent in the wording of Sections 5 and 7 and whether they took steps to resolve this inconsistency.
Apparently, such conflict was recognized. The Union's submission includes a letter from UTU President Fred Hardin addressed to all UTU General Chairmen and dated July 21, 1988 following the carrier's June 10 notice that it was invoking section 5. Mr. Hardin set forth the Union's dissent from the Carrier's action. He also enclosed the texts of two proposed "Questions and Answers" which were designed to provide supplementary information regarding section 5, both proposed at the time of the 1982 National Agreement, one by the Union and one by the carriers.
claims. The Union C and A would have made clear the carriers' obligation, despite the wording of Section 5, to provide cabooses for all required trains even if this entailed purchases of new cabooses or major repairs to existing cabooses. on the other hand, the Carriers' Q and A would have made clear that for any Carrier, Section 5 permits "reducing the number of cabooses in its existing fleet." It is unfortunate that the Parties were unable to resolve these differing interpretations of Section 5.
Since the issue presented by these claims is arising for the first time, awards in other cases have only limited relevance. The Union's citations for the most part are concerned with the traditional warning that arbitrators and neutrals should look essentially to the language of the Agreement and not venture forth to, as one award states, "change an agreement by removing or making inoperative any provision or rule which the parties have obligated themselves to carry out." (First Division Award No. 15971, Referee William M. Leiser° son). In the Union's view, the Carrier in the present proceeding is attempting to secure a new rule which the Carriers as a group were unable to obtain in the 1982 national bargaining negotiations.
The Carrier's many citations cover several aspects of the case. most pertinent pexhaps are those citations of awards which hake clear that one section of a rule or article must not be interpreted without at the same time recognizing the application of
In the board's view, this review of the major aspects of the claims presented leads to two major conclusions:
1. With respect to the Parties' intent in formulatingquestion, the Board gives greater'weiqht than the Union to the conditional clause in Section 7, "other than in accordance with the provisions of this Article." In the Hoard's view, this clause must be interpreted to refer to Section S and to mean that no penalty is due if the Carrier's failure to assign a caboose reflects a reduction in its inventory of cabooses available -for service causes solely by the Carrier's exercise of its rights under Section 5.
Thus this Board must conclude, based on all the facts and circumstances of these claims, that the claims cannot be sustained since the absence of a caboose on the claimants' train resulted directly from the Carrier's action under Section S, Article X.
This Board is mindful of its obligation to avoid rewriting agreements between the Parties or injecting new rules which the Parties specifically declined to adopt in negotiations. Nonetheless, in this proceeding, the Hoard is convinced that its conclusions constitute a reasonable interpretation of the intent of the Parties and the meaning of the language utilized in the writing of Article X of the 1982 National Agreement.
AWARD