Public Law Board 7022
There were two issues presented to this Procedural Board. First, should a Public Law Board ("PLB") be established pursuant to Section 3 of the Railway Labor Act and Part 1207 of the National Mediation Board Rules, and second, if so, what shall be the jurisdiction of that Public Law Board.
The Organization maintains that it has availed itself to the rights given it under Section 3 which allows for cases pending more than twelve months before the NR.AB to be placed before a PLB. The Organization notified the Carrier of the Organization's intent to remove certain cases to a PLB and the Carrier did not respond within the ten day requirement of Section 3. The Organization notified the NUB and requested the appointment of a procedural neutral.
The Organization continues that the parties do not agree on the language of the aliment establishing the PLB to hear the removed cases. According to the Organization, the issue before this Procedural Board involves ascertaining the terms of the PLB agreement between the Carrier
PLB NO. 7022and the Organization. The record includes examples of PLB agreements that the Organization has entered into with other Carriers as well as the instant Carrier. The normal and customary language of those agreements should govern the establishment of this PLB.
The Carrier maintains that this Procedural Board was established in error and that the instant matter is therefore not properly before this Board. The Carrier responded to the Organization within ten days and the NMB should not have established a procedural Board and appointed a procedural neutral. F, even if the matter is properly before this Board, the Organization's other arguments still are not persuasive. Section 3 does not require any specific language for the agreement to establish a PLB and the NRLA requires that the parties agree on the class of cases to be heard by the Board. There has also been no agreement on the cases to be heard. At most, the parties have six cases in common between their respective proposals for cases to be heard.
The Carrier continues that its proposed PLB agreement is justifiably more specific than other agreements because of the nature of the cases that will be before the PLB under the Organization's proposal. The Organization's list of cases is almost exclusively subcontracting matters. Because of the nature of the issues, and the desire to preserve the continuity of NRAB decisions on subcontracting cases, the Carrier wants only experienced neutrals to hear the matters. Further, the Carrier wants to exhaust all opportunities to resolve the matters and mediate them prior to docketing for hearing.
The record establishes the following: Organization President Freddie Simpson sent a letter to the NRAB elated October 13, 2006, requesting that the Third Division take no her action on fifteen specific cases because the cases were more than twelve months old. The letter
continues that the Organization was notifying the Carrier of its intent to refer fifteen matters to a newly established Public Law Board. Mr. Simpson sent a letter to the Carrier dated October 13, 2006, notifying the Carrier of its intent to refer fifteen matters to a newly established Public Law Board. He included a copy of the above-mentioned letter and a Public Law Board agreement for the cited cases. 'The letter listed Roy Robinson as the Organization contact for the PLB.
Carrier Vice President for Labor Relations and Human Resources Cathryn Frankenberg sent a letter to Mr. Simpson dated November 13, 2006 in which she stated that the Carrier did not agree to submit the fifteen cases to a Public Law Board because they were already docketed and might be assigned, to a neutral.
Mr. Simpson sent a letter to the NMB's Director of Arbitration Services dated November 20, 2006, in which he requested that the NMB designate a Carrier Member to the PLB. He continued that the designation was necessary because the Carrier was "not agreeable to submit the listed cases to a Public Law Board." A copy of the parties' correspondence and a list of the fifteen eases at issue was inch.
NMB Director of Arbitration Service Roland Watkins sent a letter to Mr. Simpson dated December 20, 2005, designating Ms. Frankenberg as the Carrier member. Ms. Frankenberg was copied on the letter as notification of her designation.
Organization Assistant to the Vice President Steven Powers sent a letter to the NMB's Director of Arbitration Vices dated January 16, 2007, requesting the appointment of a Procedural Neutral to resolve the mural matters for dishing the Public Law Board. In the letter, he stated that the Organization's representative, Roy Robinson, had attempted to
contact the Carrier member on January 9 and January 12 regarding the proposed Public Law Board Agreement that had accompanied the October 13, 2006, letter to the Carrier.
Ms. Frankenberg sent a letter to the NMB's Director of Arbitration Services dated January 19, 2007, in which she stated that she had received Mr. Robinson's message and intended to contact him as soon as possible. On January 16, she was notified of the death of Mr. Robinson's father and that the funeral would be held on January 20, 2007. Slav fiuther stated that she felt it more appropriate to contact Mr. Robinson upon his rehlfil to work following the funeral. She closed by stating that, in light of the Organization's letter, she would immediately contact Mr. Robinson- Mr. Robinson was copied on the correspondence and it was faxed to the Organization.
NMB Dirwtor of Arbitration Service Roland Watkins sent a letter to Steven Powers dated January 19, 2007, in which he stated that the request was docketed as public Law Board 7022 and that the undersigned was appointed as the procedural neutral.
Ms. Frankenberg sent a letter to the NMB Director of Arbitration Services dated January 22, 2007, in which she stated that she attempted to contact Mr. Robinson on January 1$, and was advised that he was out of the office until the following week. There was no voice mail available and she left a message with the receptionist that she had returned his call. Mr. Robinson was copied on the correspondence and it was faxed to the NMB.
Ms. Frankenberg sent a lay letter to the NMB Director of Arbitration Vices dated Fete 9, 2007, in which she expressed her displeasure at how the NMB handled the instant matter. Specifically, she cited the NMB's historical ice and role in facilitating dues and how the current situation was patently unfair to the SOO. She continued that the Soo has a history
PLB NO. 7022
and reputation for integrity and cooperation that should have been considered rather than relying solely on the Organization's perspective without Soo input. She detailed the timeline of events to illustrate how Soo had not been fairly treated by the NMB.
Ms. Frankenberg's letter continued that the Organization never contacted the Carrier to confer about the cases identified for referral to a PLB although this was their obligation under the statute. Further, the Carrier notified the Organization and the NMB that it did not agree to submit the listed cases to a PLB because of them being already assigned to a neutral by the NRAB. The Carrier expected that the Organization would contact the Carrier for a conference or discussion. However, the Organization never made a request. Instead, the Organization requested the appointment of a procedural neutral.
Ms. Frankenberg's letter further stated that the N MB deviated from the usual procedure of requesting comments or input from the other party affected by the request. Instead, the NMB acquiesced to the Organization request, despite the failure of the Organization to request conference or discussion from the Carrier. The Carrier did not learn of NMB's December 20, 2006 request for appointment of a Carrier representative until January 8, 200? due to the holidays. It appears to the Carrier that the NMB accepted the Organization's claim in the January 16, 2007 letter, without Carrier input, that an Organization representative it attempted contact with the Carrier on two occasions in January, to no avail.
Ms. Frankenberg continued that the Carrier received a copy of Mr. Powers' request for a mural board and appointment of a mural neutral on January 18. Upon receipt of Mr. Robinson's January 16 letter to the NMB, the Carrier wrote to NMJ3 about the facts and circumstances surrounding the desire to contact Mr. Robinson upon his return from the funeral.
Nonetheless, Mr. Frankenberg attempted to contact Mr. Robinson on January 18, but was unable to reach him and there was no voicemad. Given her responsibilities for the Soo and the Delaware and Hudson, a one week delay in responding to the Organization should not be seen by
recalcitrant. The immediacy of NMB's actions in the instant matter is questionable given the normal timeframes under the NRLA and collective bargaining agreements. The
Carrier did not learn of the NMB's January 19, 2007, letter appointing the procedural neutral until receipt of that letter on January 25, 2007 and consequently attempted to contact Mr. Robinson.
Ms. Frankenberg also discussed a conversation that occurred between Mr. Powers and Carrier's Director of Employee and Labor Relations, Robin Mullaney. Ms. Mullaney returned a call to Mr. Power's in order to discuss the Carrier's letter of January 22, 20007. As mentioned above, the Carrier was not aware of the appointment of a procedural neutral and Mr. Powers did not mention it during the discussion. During that conversation, Ms. Mullaney did point out that the Carrier had certain concerns about a PLB for the cases and why the NRAB was the appropriate venue for these cases. Ms. Mullaney cited the significance the subcontracting issue and the importance of historic arbitral principles, precedent and continuity. She further expressed a concern that the NMB might appoint an inexperienced neutral who did not fully understand the industry or the issues. Moreover, there were older cases pending at the NMB than the Organization listed and that slue would review the Organization's listed cases and get back to Mr. Powers. The Organization's proposed cases were under review by the Organization at the time of this conversation in order to determine what could be resolved. The parties then participated in Section ti mediation on January 23 and 24.
Ms. Frankenberg stated that the above information would have been available to NMB, had they followed the usual practice of asking the Carrier for comment. Further, she states that not only was the procedural neutral improperly and inappropriately appointed, but also the Carrier is dismayed because the NMB appointed a new neutral to a matter involving subcontracting - the most significant issue facing the Carrier and the Organization.
In conclusion, Ms. Frankenberg summarized the Carrier's position that the NMB's decision to appoint a procedural neutral should be reversed. The appointment was made without seeking the normal Carrier comment, the parties did not confer and therefore could not be found to be in disagreement, and the NMB's failure to seek comment pre-empted the good faith requirement of the NRLA. Only when the Organization had conferred with the Carrier on the property, would the NMB be able to determine whether there was disagreement. Moreover, the Carrier would be willing to explore mediation of the cases and avoid the instant situation.
NMB Director of Arbitration Service Roland Watkins sent a letter to Steven Powers dated March 9, 2007, giving the Organization until March 30, 2007 to respond to Ms, Frankenberg's letter of Fete 9, 2007.
The Carrier sent a letter to the undersigned mural Neutral dated March 28, 2007. Ms. Frankenberg enclosed a copy of the Carrier's proposed PLB Agreement, with the request that the heating date be chosen after Mr. Powers responded to her prior letter to the NMB.
Mr. Powers sent a lengthy letter to the NMEB's Director of Arbitration Services dated March 30, 2007, with fax copies to the Carrier and the undersigned, in which he discussed how the Organization had exercised its right to refer the cases to a Public Law Board because they had been at the NRAB for more than twelve months. He cited the relevant statutory section of
the RLA dealing with referring cases to a special board and stated that the referred cases meet the statutory criteria for length of time before the NRAB.
Mr. Powers continued that the cases have been before the NRAB for more than twelve months because they were filed in either 2003 or 2004. The language of Section 3 is clear that the non- Carrier requesting party shall join in an agreement to establish a Board within thirty days of the initial sL The Carrier did not contact the Organization until November, and then indicated that is did not agree to submit the cases to a Public Law Board. According to Mr. Powers, the Organization assumed that it would not comply with the Organization's notice. The Organization then requested that the NMB appoint a Carrier Member.
Mr. Powers stated that the request for a Carrier Member included all correspondence and was copied to the Carrier. The Carrier did not responded and tire NMB appointed a Carrier Member after thirty days had passed.
Mr. Powers also discussed the attempts by Mr. Robinson to contact Ms. Frankenberg on two occasions in January 2007, to discuss the language for the proposed PLB. Those calls went unreturned. The Organization requested appointment of a procedural neutral on January 16, 2007. Ms. Frankenberg was copied on the request.
Mr. Powers continues that the Carrier cannot challenge the essential fit that the cases at issue have been pending before the NMB for more than a year and are therefore eligible to be referred to a PLB. The language of the statute obligates the NMB to appoint a mural neutral.
Mr. Powers further stated that the evidence bests that the NMB did not comply with the requirements of Rule 1207.1 that the party that failed to designate a partisan member be
PLB NO. 7022
notified prior to the NMB designating a representative. However, these should not be seen as fatal to the creation of the PLB because the Carrier was put on notice by the Organization's request. Further, the Carrier has had been afforded time to respond and those responses do not change the fact. that the NMB had an obligation to appoint a neutral member and a procedural neutral.
Mr. Powers concluded by stating that the Carrier had been fairly treated and cannot dispute that the referred cases have been pending at the NRAB for more than one year. The Carrier refused to designate a Carrier Member and did not reach agreement on the terms of the PLB Agreement. Accordingly, NMB was obligated to appoint a Carrier Member and a procedural neutral.
The remainder of the correspondence between the parties concerned scheduling of the hearing. There was no further correspondence from the NMB. The matter was heard on June 29, 2007, and the parties presented evidence and arguments on the issues before the procedural board
respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934. Public Law Board 7022 has jurisdiction over the parties and the dispute involved herein.
The evidence before this Board establishes that the Organization notified the NRAB, NUB and the Carrier of the referral of fifteen cases to a PLB pursuant to Section 3. The Carrier sent a proposed PLB Agreement to the Carrier and indicated that Roy Robinson was the Organization member. When notified of the Organization's notice that fifteen cases before the NRAB were going to be referred to a PLB, the Carrier indicated that it did not agree with the cases being referred to a PLB. The Carrier did not designate a Carrier member of the PLB. The parties did not reach agreement on the age of the PLB within thirty days. The party requesting the PLB, the Organization, then requested the appointment of a Carrier Member on November 20, 2006, and the NMB appointed a Carrier Member on December 20, 2006. The Organization requested the appointment of the Procedural Neutral on January 16, 200'7 and the undersigned was appointed on January 19, 200'7.
The evidence before this Board establishes that the fifteen cases at issue, those referred by the Organization to a PLB, were pending before the NRAB for more than twelve months and that the Organization properly referred the fifteen cases to a PLB by notifying the NMB, the Carrier and the NRAB of the referral. The Carrier's claim, that some of the Organization's referred cases might have been docketed before the NMB when then notice was sent, is unsupported by the evidence before this Board.
It is clear that the intent of this provision of Section 3 was to expedite the handling of claims such as those presented here. To achieve this end, it granted to either the Carrier or the Organization the option of avoiding the delays encountered in the NRAB by exercise of a unilateral right of referral. This unilateral right allows either party to refer appropriate claims to a special adjustment board. The provisions for compelling an unwilling party to a hearing before a Public Law Board make it clear that neither party is intended to have any opportunity to delay
the prompt establishment of such a Public Law Board and the expedited hearing of claims before it.
Further, the language of Section 1207.1 states that a party who did not designate a PLB member be notified and that the NMB appoint the party member. It also states that the NMB will notify the non-moving party to a request for a Procedural Neutral and then appoint a Procedural Neutral. While it is fly desirable for the NMB to seek a party's input, contrary to the Carrier's argument, there is nothing in Section 1207.1 which requires that the NUB seek comment from the non-resting party. There is also nothing in Section 1207 or the evidence before this Board which establishes when the notice to the appointed member should be sent. The NMB chose to use the letters indicating the appointment of the Carrier Member and the Neutral Member as contemporameous notices to the Carrier.
Accordingly, a party may request. appointment of a Procedural Neutral after ten days have elapsed since the parties were unable to resolve questions involving establishment or jurisdiction. The evidence shows that the members were unable to agree anti a timely request for a Procedural Neutral was made.
The record before this Board also shows that the NMB was fully aware of the positions of the parties, in fact, giving the Organization time to tend to Ms. Frankenberg's Fete 2007
PLB NO. 7022
letter that detailed the timeline and the Carrier's position and requesting reversal of the NMB's decision. The NUB did not reverse its decision to name a Carrier Member and appoint a Procedural Neutral. The record establishes that over ninety days passed from the Organization's initial notice referring the fifteen cases to a PLB until the naming of the Procedural Neutral.
The evidence before this Board establishes that the fifteen cases were properly referred by the Organization to the PLB, the Carrier Member was properly appointed and the Procedural Neutral was properly appointed.
Given that the Public Law Board was properly established, the question turns to jurisdiction of the Board. The Organization notes that PLB agreements are common in the railroad industry and that the respective parties have entered into PLB Agreements both between themselves and with other parties. The Organization maintains that the proposed PLB Agreement that was sent to the Carrier is both a reasonable and customary PLB Agreement. In support, the Organization included a number of similar PLB Agreements that are similar in terms to the proposed agreement for the instant PLB.
According to the Organization, the instant issue is similar to an interest arbitration - with the Procedural Neutral possessing the authority to define the terms of the PLB Agreement when the parties do not agree. Further, the Organization maintains that the Carrier's criteria for eligible neutral members are so demanding that few neutrals would qualify.
The Carrier points out that the fifteen cases referred to the PLB by the Organization mostly involve the issue of sub-contracting. According to the Carrier, this issue is of paramount importance to not only the Carrier, but also to the entire railroad industry. Because of this
importance, the Carrier seeks to have the list of eligible neutrals comprised only of neutrals with significant sub-contracting experience.
The Carrier seeks to maintain the precedents of the NRAB, where sub-contracting matter have previously been heard, as well as the institutional knowledge of the neutral who have repeatedly addressed subcontracting issues. According to the Carrier, newer NMB neutrals should not be on the list of NMB potential neutral members because of possible lack of ink knowledge and experience with the subcontracting issue. Further, the Carrier suggested a list of cases for the PLB that were older than the instant cases, but did not deal with subconhucting ice. The Carrier did not have any examples of similar PLB agreements that had been used.
As stated above, the fifteen cases refereed to the PLB by the Organization are the cases that will be heard under the PLB in the instant PLB agreement While the Carrier does offer some older cases to be heard by the Board instead of the Organization's referred cases, there is no authority to substitute the Carrier's cases for the Organization's referred cases. The Carrier is certainly free to invoke its unilateral right to refer the cases to a PLB; however, that process has not been initiated for the Carrier's proposed cases.
While, the PLB Agreement offered by the Carrier recognizes the seriousness of the subcontracting issue, it is overly demanding on the criteria for eligible neutrals. Further, in the Organization's proposed PLB Agreement, the neutral panel will be issued by the NMB. An NMB neutral panel will only be comprised of neutrals who meet NMB's standards for inclusion on the Neutral Roster. Moreover, the parties will have the opportunity to strike undesirable or newer neutrals from the panel. The Carrier fears that an undesirable neutral might remain as the Neutral Member of the PLB, however, this is not controlling.
The PLB Agreement offered by the Organization is reasonable and the evidence before this Board suggests that substantially similar agreements have been utilized by Carriers and Organizations. Accordingly, this Board finds that the Organization's proposed PLB Agreement will be the PLB Agreement for the instant matter. The PLB Agreement is attached as Exhibit A.
PLB NO. 7022 Page 17
(FORMER CHICAGO, MII:WAU.KEE,.ST.PAUL. AND
PACIFIC RAILROAD COMP
BROTMR$OOD OF MAINTENANCZ OF WAY EMI'L.OYES
DIVISION - I$T RAIL _ CONFERENCE
(A) There is established a Special Bo.srd..of Adjustment under the provisions, of the Railway .Labor Act, as amended, which is Jasi-as a Public Law Board. This Public Law Board shall have jurisdiction over the original lief of cises and subs cues which sire added by agracmertt of the parties as set forth in Section (F) hereof The original list of cases to be submitted to the Public Law Board is attached hereto. ,
Member shall be Roy C. Robinson, The third member, who shall be Chairman of the Public Law .Board, shall be a neutral person unbiased between the parties. Members of the Board, other than the
airnarn, may be changed from time to time and at any time by the respective parties designating awn
(C) The Carrier Member and the Employe Member shall confer within ten (10) days after designation of the initial party members for the purpose of tying to select the Neutral Member of the Board. If the party members can agree upon the Nattral Member and the person so selected accepts the appointment, then such person shall serve on the Board I~ within ten (10) days after such fast meeting, the party members are unable to agree upon the Neutral Member, they shall jointly request the National Mediation Board (Nl~ffi) to provide a list of ekven (1,U teal Arbitrators from which the parties shall choose the Arbitrator by alternately strildng names from the list, which first strike to be allow to a party by a coin toss. Neither party shall oppose or make any objection to the Nf~ffi concerning a request for such a panel nor shall they do anything to delay
either party members or the neutral, the vacancy shall be filled in the same manner as the original selection.
(D) The Public Law Board shall meet in St Paul, Minnesota, Chicago, Illinois err other mutually agreed. to location, at the mutual convenience of the m£ In the event the parties cannot agree upon the locution of the hearing the Neutral Member shall choose the location. The Board shall continue in session until all cases listed in this Agent are disposed o£
(E) The compensation and expenses of the Carrier Member shall be borne by the Carrier. The compensation and otpenses of the Employs Member shall be borne by the Brotherhood. The compensation and expenses of the Neutral Member shall be set and paid by the NUB. All other eqeoses of the Board shall be borne half by the Carrier and .half by the Brotherhood.
(F) This Board shall have fiction' only of the clatms4a . the. "Original List".'. In addition, thrre may be submitted to the Board one or more "SupPll Lists" of cases, provided that such "SupplemmtAl Lists" shall be red to the Board only by mutual. ag~r~rmeant of the Carrier and the Broflushood. .
The Board shall bold hearings on each claim or grievance submitted to it Duo notice of midi hearing shall be give the parties. At such h the parties may be heard in person, by counsel or by other representatives as they may elect. The parties may present orally, stints of facts, supporting evidence and data, sad argument of their position with regard to each case being considered by the Board.
The parties will comport to NRAB Circular No. 1 instructions. The Board shall have the authority to require the production of such tonal evidence, either oral or written, as it may desire from either party.
Agreement which involves the interpretation or application of an went other than the agreement between the Carrier and the Brother of Maintenance of Way Employes in whole or in part.
PLB NO. 7022
(J) The Board shall make findings and render an award in each ca= ittoi 1'i it within sixty (60) days from the date initially considered by the Board, with the sole exception of a case withdrawn from the Board. Such findings and award shall begin writing and a copy shall be furnished the respective parties to the dispute and, if in favor of the petitioner, shall direct the other party to comply therewith on or before the day named. Such awards shall be final and binding upon - both parties to the dispute. Each member of the Board shall have one vote and a majority of the Board shall be competent to render an award or make such other rulings and decisions necessary to carry out the functions of the Board..
In-case a dispute arises involving an intaaa .of an award,- the Board, upon request by either party, shall interpret the award in light of the dispute in accordance with Section 3. First (m) of the RLA.
(K) The Board y established shall conform m adsteace unto it has disposed of the cases submitted to it in 13u "Original List' and/or any other claims or grievances mutually Agreed to and submitted to this Board under Section (F) of this Agreement, aft which it shall cease to mist except. for interpreation. of its awards as above provided.
PLB NO. 7022
of the International Brotherhood of Teamsters
The above-quoted portion of Section 3 Second of the RLA reflects the portion of the Act we relied on when we first requested to establish a PLB. That portion of the RLA is crystal clear, in that either party has a demand right to move cases to a PLB if those cases have been listed to the National Railroad Adjustment Board (NRAB) for more than twelve (12) months. That is exactly what happened in this instance when we notified the Carrier on October 13, 2006 of the BMWED's intention to move the cases to a PLB. Since that time we have been met with nothing but roadblock after roadblock from the Carrier. Indeed, the record reflects that because of the Carrier's intransigence the National Mediation Board (NMB) was required to appoint Ms. Cathryn S. Frankenberg as Carrier Member on December 20, 2006.
The Carrier and Employe Members of the Board were unable to agree on the establishment and jurisdiction of a PLB and, therefore, on January 19, 2007 the NMB appointed you to sit as neutral member of the procedural board to make an Agreement establishing a PLB. On February 23, 2007 you notified the parties of your appointment and requested dates that the parties would be available to meet and convene PLB No. 7022 - Procedural. Eventually, we met and convened PLB No. 7022 - Procedural on June 29, 2007, wherein the parties argued their respective positions. Because funding from the NMB was severely restricted for most of the year you were unable to render your decision until January 9, 2008 and it was received in this office on January 11, 2008. In accordance with the clear terms of the RLA your role as neutral member of PLB No. 7022 - Procedural ended when you issued your decision. The applicable provision of the RLA states:
Pursuant to the above-quoted language, you, in your capacity as Neutral Member, were the sole decision maker with respect to the terms necessary for the establishment and jurisdiction of the PLB and your jurisdiction ended when you rendered your findings on January 9, 2008. Therefore, the Carrier's request for an executive session is without merit and should not be considered by you in your capacity as the former Neutral Member. The award is final and binding and your
PLB NO. 7022 Page 24
PLB NO. 7022
PLB NO. 7022
United States Court of Appeals,Seventh Circuit.
UNITED TRANSPORTATION UNION, a volun
tary unincorporated labor association, Plaintiff-Ap
pellee,
SOO LINE RAILROAD COMPANY, a corpora
tion, Defendant-Appellant.
No. 71-1271.
Action by union to enforce award of Special Board of Adjustment No. 678. The United States District Court for the Northern District of Illinois, William J. Lynch, 1., granted enforcement and railroad appealed. The Court of Appeals, Hastings, Senior Circuit Judge, held that interpretation of award by chairman of Special Board of Adjustment No. 678 did not exceed Board's jurisdiction and award of one-hour arbitrary to roadmen was proper.
23 I Hk 1600 k. Reconsideration, Modification, or Clarification. Most Cited Cases (Formerly 232Ak455 Labor Relations)
Request for interpretation of award is merely for clarification, a matter, on which railroad and union could not shed any additional light. Railway Labor Act, ¢§ 2, 3, subd. 1(m), 8, 45 U.S.C.A. §§ 152, 153, subd. 1(m), 158.
231 Hk 1600 k. Reconsideration, Modification, or Clarification. Most Cited Cases (Formerly 232Ak455 Labor Relations)
Action of chairman of Special Board of Adjustment No. 678 in issuing interpretation of award was proper. Railway Labor Act, §§ 2, 3, subd. 1(m), 8, 45 U.S.C.A. §§ 152, 153, subd. 1(m), 158.
231Hk1600 k. Reconsideration, Modification, or Clarification. Most Cited Cases (Formerly 232Ak455 Labor Relations)
Interpretation of award by chairman of Special Board of Adjustment No. 678 did not exceed Board's jurisidiction and award of one-hour arbitrary to roadmen was proper.
170Ak2737.11 k. Labor Issues. Most Cited Cases (Formerly 170Ak2737.5, 170Ak2737) Question of award of attorney's fees to prevailing party in action against railroad by union seeking to enforce certain award lies within special competence of district court. Railway Labor Act, § 3, subd. I (p), 45 U.S.C.A. § 153, subd. I (p).
Before HASTINGS, Senior * ireuit Judge, and FAIRCHILD and KERNER, FNCircuit Judges.
FN* Judge Kerner heard oral argument, but did not participate in the adoption of this opinion.
This is an action by United Transportation Union (union), a voluntary labor organization, against Soo Line Railroad Company (railroad), to enforce certain awards rendered by Special Board of Adjustment No. 678 on July 23, 1969. After the awards were issued a dispute arose between the parties concerning the meaning thereof. In a series of letters to UTU the railroad stated its position. These letters were forwarded by the union to the chairman of the Special Board requesting an interpretation of the awards. The Board chairman issued an interpretation on September 5, 1969. The railroad refused to apply the awards as interpreted by the chairman member of the Board. The union thereupon filed the instant suit for enforcement. There being little factual dispute in the pleadings filed by the parties, the union moved for judgmenton the pleadings and the railroad moved for summary judgment. After briefing, the district court in a short memorandum decision, followed by order and judgment, granted the union's motion for judgment on the pleadings and denied the railroad's motion for summary judgment. The railroad appealed. We affirm.
*286 The Special Board was acting under authority granted pursuant to the Railway Labor Act, Title 45, U.S.C.A. § 153. However, Board 678 was established by a memorandum of agreement between the railroad and the union on May 4, 1966, prior to the effective date of the 1966 amendments to section 3 of the Act. The awards were entered July 23, 1969. The petition for enforcement was filed on March 17, 1970, under section 3, First (p) of § 153 of the Act. A board of special adjustment is authorized to interpret its awards as provided in section 3, First (m) of § 153 of the Act.
concern a work rule disagreement over conflicting claims of certain railroad employees designated as yardmen and roadmen, both of such classes being represented by the union. At issue was a challenged practice of the railroad that required roadmen to perform certain yard switching operations claimed to be in violation of the applicable labor agreement.
The Special Board denied all claims made on behalf of the yardmen and in Awards Nos. 56, 57, 58, 62, 63, 64, 65 and 66 it found that the labor agreement had been violated as to the roadmen. These 8 awards are the subject of this litigation. In so ruling the Board held that Article V of the National Agreement of June 25, 1964 permitted the use of roadmen for the yard switching operation in question. This ruling resulted from reading Article V together with the prior basic labor agreement (Agreement No. 2) and concluding therefrom that Article V removed the restrictions contained in Agreement No. 2 which prohibited the use of roadmen to perform yard switching except on Sunday, or because of emergency conditions, or because of a bad order car or cars. In reading the agreements, the chairman of the-Special Board found that the road brakemen, who performed such switching, should have their claims sustained but limited their payments to "payment of the constructive allowances provided in Agreement No. 2(e) for road Brakemen switching while no yard crew is on duty * * * namely, 'one (1) hour at the yard rate."'
Each of the awards was signed by the railroad carrier member of the Board. Only 2 of the 8 subject awards were concurred in by the union member, the remaining 6 having been signed by him in dissent. However, the railroad subsequently took the position that there was nothing due and payable to the road brakemen under the 8 awards and wrote separate letters to the union denying further payment of each of such separate awards. It was these letters that the union forwarded to the chairman of the special Board, with copies to the other two Board members, requesting an interpretation as to whether or not the roadmen were entitled to "one (1) hour at the yard rate" in each instance. The railroad paid all other claims which it conceded to be
The chairman of the Special Board sent his interpretation by covering letter to the carrier and union members of the Board, in which he disagreed with the railroad's contention, stating, inter aliu:"The findings * * * that the claimants are entitled to the constructive allowance provided in Agreement No. 2(e), * * * mean that such payments are to be allowed regardless of the day of the week, the type of switching, or the road train involved, as long as the switching was performed during the second twelve-hour period."The chairman explained his reasoning and applied it to each of the awards interpreted. As above stated, the railroad refused to pay the awards as interpreted and the present litigation resulted.
The railroad first contends that the Special Board did not issue a valid interpretation of the awards in question for the reason that the interpretation was issued by the referee (the chairman member) rather than by the three members of the Board and that it was therefore "a nullity and is not judicially enforceable."It argues that the memorandum*287 of agreement of May 4, 1966, pursuant to which the Board was established, provides in Section 2 that the Board shall consist of 3 members; that Section 8 provides that the Board shall interpret awards upon the request of either party to a dispute; that section 3, First (in) of § 153 of the Act provides that such interpretation of an award under dispute shall be made by the Division of the Board; and that therefore the chairman of the Board "had no more authority or jurisdiction to issue an interpretation on an ex parte basis than did the carrier member, the employee member or, for that matter, the Sheik of Araby."Reserving judgment on participation by the Sheik of Araby, we think the railroad overreaches in its contention concerning the chairman of the Board.
[1] The railroad would have a formal convening of the Special Board to interpret its own awards. There is no continuing dispute between the
parties. In reality a request for an interpretation of an award is merely for a clarification, a matter on which the parties cannot shed any additional light. SeeBrotherhood of Railroad Trainmen v. Central of Ga. Ry. Co., 5 Cir., 415 F.2d 403, 417-418 (1969), cert. denied, 396 U.S. 1008, 90 S.Ct. 564, 24 L.Ed.2d 500 (1970).
[2] In the case at bar, the author of the railroad's letters refusing payment, which precipitated the union's request for interpretation, was the carrier member of the Board. He concurred in the awards in the first instance, which the railroad now considers to have been a mistake. Although we need not pass upon the matter of waiver in the resolution of this appeal, the railroad never at any time prior to the chairman's interpretation requested a formal convening of the Board for that purpose. Indeed, it does not now request a remandment to the Board for an interpretation. With the chairman who wrote the awards sitting in the swing seat, the result of such a remand is obvious. It is further significant that the chairman kept the other two Board members fully advised of his actions and there appears to have been no dissent. Considering the inherent informality of arbitration proceedings and particularly as specifically related to interpretations subsequently requested and made, and having in mind that the only relief requested on this appeal is that we should now refuse to enforce the awards, we find no error in the common sense approach of the district court when it concluded that it could "perceive no difficulty with a chairman issuing such an interpretation for the Board," pursuant to the authorization of interpretations by the Special Board in section 3, First (m) of § 153 of the Act.
[3] The railroad next raises a dual jurisdictional issue. It first contends the awards as interpreted exceeded the Board's jurisdiction because "they purported to revise the express terms of the collective bargaining agreement in effect between the parties."It further contends the Board "did not have jurisdiction to award damages which were neither
PLB NO. 7022We have already noted the Board's holding that Article V of the National Agreement of June 25, 1964 permitted the use of roadmen for the yard switching operation in question. We further noted that this ruling had the effect of reading Article V together with the prior basic Agreement No. 2, thereby concluding that Article V removed some of the restrictions in Agreement No. 2. The chairman's subsequent interpretation sustained the awards to the road brakemen but limited their payments to the "payment of the constructive allowances provided in Agreement No. 2(e) for road Brakemen switching while no yard crew is on duty * * * namely, `one (1) hour at the yard rate."'
In seeking to establish a jurisdictional defect the railroad contends that the effect of applying the awards as interpreted amounts to writing a new rule requiring*288 the payment of a one-hour arbitrary to all roadmen performing yard work at the points designated in Agreement No. 2 and that this it cannot do. We do not agree. The railroad fails to take
-into consideration Article V of the 1964 agreement as the chairman did in his interpretation. No one disagrees with the general principle that the Board is without power to write a new rule for the parties. However, the attempt by the railroad to apply this general rule to the awards in issue goes far astray. We agree with the Board that it is quite proper to read Article V together with Agreement No. 2 and that the result compels the resulting awards and subsequent interpretation. No good reason for not doing so has been advanced by the railroad. There is nothing unusual about the dispute the Special Board was called upon to arbitrate and interpret. We agree with the Board and the trial court that the course taken was practical and proper. It does not rise to the dignity of a jurisdictional defect.
The second alleged jurisdictional defect challenges the jurisdiction of the Board to award the one-hour arbitrary. Such claims were originally made under Agreement No. 2 and were later amended to claim pay for a full eight hours. The railroad agreed to awards permitting the construct-
ive allowance of the one-hour arbitrary. It now argues that in doing so it necessarily assumed that the 1964 agreement would have no application to Agreement No. 2.
It cannot be overlooked that all of the yard claims were rejected by the Board and the road claims were reduced from eight hours to one hour. These rulings by the Board rejected a great bulk of the claims made. We are not now seriously impressed with the present argument that the railroad would not have concurred if it had understood the true meaning of the subject awards.
We have recently considered the 1966 amendments to the Act in Laday v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 7 Cir., 422 F.2d 1168, 1171 (1970); Great Northern Ry. Co. v. National Railroad Adjust. Bd., 7 Cir., 422 F.2d 1187, 1192-1193 (1970); and Brotherhood of Railroad Signalmen v. Chicago, M., St. P. & P. R. Co., 7 Cir., 444 F.2d 1270, 1273-1274 (1971). Under the rationale of these cases, we find that the awards and the Board's interpretations of them are not so unfounded in reason and fact as to make the awards unenforceable and that a rational foundation existed for the Board's action. It necessarily follows that matters raised by the railroad present no valid jurisdictional question.
In light of the foregoing holdings, the railroad's fmal contention that the district court erred in granting plaintiffs motion for judgment on the
PLB NO. 7022Freddie N. Simpson
President
This is in reference to Mr. Kluska's letter dated Fete 19, 2008 concerning the determinations you made as to the Procedural Neutral of Public Law Board No. 7022. Apparently, Mr. Kluska has recognized that you have no jurisdiction to convene an "Executive Session" as requested in his letter dated January 18, 2008 because he seems to have abandoned that request and is now requesting an "interpretation session". However, just as you had no jurisdiction to convene an Executive Session, you similarly have no jurisdiction to convene an "interpretation session". As I explained in my letter dated January 24, 2008, the findings you rendered on January 9, 2008 are final and binding and your jurisdiction over this matter has concluded pursuant to the clear and unambiguous provisions of Section 3, Second of the RLA.
Apparently, Mr. Kluska has confused the jurisdiction of a Merits Neutral at the NRAB or on a tripartite Public Law Board with your jurisdiction as a Procedural Neutral in the instant case. Section 3, First (m) of the RLA clearly provides the various divisions of the NRAB with jurisdiction to interpret awards of the divisions. Similarly, most PLB Agreements, including Paragraph (J) of the PLB you selected for the parties in this case, provide the PLB with jurisdiction to interpret its own awards. Section 3, Second, which established your jurisdiction as a Procedural Neutral in this case, makes no reference to an interpretation of a procedural determination because no such interpretation was contemplated or necessary, which brings me to my final point.
It is clear that Mr. Kluska's newly minted request for an interpretation is nothing but another effort to delay the resolution of the cases in question. Indeed, while Mr. Kluska has requested an "interpretation session", he has failed to identify precisely what needs to be interpreted. Of course, this is because there is nothing to interpret. You have imposed the terms of a standard PLB Agreement that is common throughout the industry and complying with its terms hardly requires an interpretation.
PLB NO. 7022
BRIAN CLAUSS
Arbitrator - Mediator -Attorney
310 Busse sway, #291
Park Ridge, IL 60068
Office 847-692-6330
Fax 847-692-2615
Emaih brianclanss@midwcst-arbitrator-mediatorcom
Website: www.midwest-arbitrator-mediator.com
The Carrier and the Organization do not join in the requests for executive session or a clarification session. Ratter, the Organization objects to either an executive scion or a clarification session There was cm request for executive session prior to the issuance of the award.
In his objections, Mr. Robinson cites the lack of jurisdiction of the neutral following the issuance and adoption of the award by the Board. The Carrier counters with citation to a case involving a Public Law Board and clarification of awards. The case is inapplicable not only because the Carrier and the Organization hate not requested a clarification, but also because the instant matter involves a procedural board.
The Railway Labor Act discusses procedural boards and provides in pertinent part of § 153 as follows: PL13 NO. 7022 Page 34
