AWARD NO. 1 CASE NOS. 1 AND 2 UNION CASE NOS. B-TC-1699 & B-TC-1756 COMPANY CASE NOS. 12(96-1499) & 12 (97-0063) PARTIES TO THE DISPUTE
The "Attachment A" to the Agreement establishing this Board simply lists the file numbers of the two claims, with this common description: "Position bulletined with other than Saturday and Sunday as rest days". The Parties advised the Chairman that they both wanted a final resolution of the underlying dispute but they were unable to stipulate to a common framing of the issues to be decided in this case. For its part, CSXT suggested that the issue before the Board be framed simply, as follows: "Did the Carrier violate the Agreement when it established seven-day positions with rest days of other than Saturday and Sunday?" BMWE countered that tactical formulation by suggesting a "Statement of Claim" more to its own liking, as follows:
Careful review of the factual record and the positions of the Parties causes the Chairman to reject the loaded issues suggested by the respective Parties and objectively frame the following questions, which are properly presented for determination in this matter:
The Brotherhood of Maintenance of Way Employes (`BMWE" or "Organization") and CSX Transportation, Inc. ("CSXT" or Carrier") created this Special Board of Arbitration ("Board") to hear and decide a dispute over CSXT's unilateral change in the work week/rest days of a two (2) man Gang [5DC6]: fxom Monday through Friday, with Saturdays and Sundays designated as rest days, to Wednesday through Sunday, with Monday and Tuesday as designated rest days. Prior to the date of this change, Gang 5DC6 had been regularly assigned to five (5) day work weeks, Monday through Friday with Saturdays and Sundays designated as rest days since 1951. Carrier effectuated a post-award bulletin process whereby, effective April 1, 1996, the two positions on the gang were
abolished and then immediately re-bulletined, with the two positions now having the WednesdaySunday workweek. Claimants, who were the long-time incumbents of the two positions on Gang 5DC6, immediately applied for and were awarded their old positions with the only change being the new workweek and rest days. They worked under the new schedule but initiated the instant claims, which were filed on their behalf by the Organization on August 5, 1996 (Case No. 1) and September 20, 1996 (Case No. 2).
The questions at issue in this case were filed and progressed as two (2) separate claims on the property, Le., one claim [System Files B-TC-1699/12(96-1499)] seeking recission of the April 1, 1996 change and compensatory damages for work weeks/rest days beginning June 1, 1996 through August 6, 1996 and a separate claim [B-TC-1756/12(970063) BOR] for recission of the April 1, 1996 change and compensatory damages for work weeks/rest days beginning August 10, 1996 through September 23, 1996. Inasmuch as the Claimants and issues were the same in each of the claims, the Parties agreed to consolidate them in arbitration before the Board. After filing and exchanging written preheating submissions and rebuttal, in accordance with the Agreement establishing the Board, each of the Parties was afforded full opportunity to present oral argument and additional arbitration awards in support of their positions at a hearing before the Board in Chicago, Illinois on October 20, 1998. The record was closed with oral summation and the Board thereafter rendered its decision in this matter.
Lane". This internal re-engineering impacted all aspects of the company and necessitated the re-organization of the Carrier's manpower in all department operations.
An almost identical case involving CSX was reviewed by the National Railroad Adjustment Board and an Award was rendered during 1996. In that case, the Organization contended its Agreement was violated when the Carrier abolished gang 6C06, which was off on Saturday and Sunday, and re-established the same gang with rest days of Monday and Tuesday. See Third Division Award No. 31300 (Wesman). The facts are the same in the instant case; therefore, there is no basis for the Organization's claim. Carrier operates seven days a week and the Claimants were aware of the rest days when they bid on the assignments. As in the case cited above, there is no merit to the instant claim. This issue has also been thoroughly dealt with on other properties and many other on-point factually similar Awards support this Carrier's decision to stagger the work weeks of its Maintenance of Way forces. See PLB No. 2166, Award No. 1, (Eischen); PLB 5317, Award No. 1 (Scheinman); NRAB Third Division, Award No. 31136 (Fletcher); NRAB Third Division, Award No. 30011 (Marx); NRA13 Third Division, Award No. 31295 (Mason); Cf, FIB 4104, Awards Nos. 9,10,11(Scheinman).
Regarding the 'history' of forces working Monday through Friday with'weekends off; CSX Transportation operates the Railroad twenty-four hours per day, seven days per week and 52 weeks per year. Recent customer demands for better service and more reliable service require the Carrier to change its operations so that repairs and maintenance activities can be done during times of less traffic volume. This accounts for the necessity to change work schedules and to re-bulletin the positions. It is the position of CSX Transportation that there is Maintenance of Way work that needs to be done seven (7) days per week, and that the Carrier has the right and responsibility to schedule and stagger its operations.
A study of the train traffic on CSXT showed that the company could improve train operations and increase the frequency of operations, by expanding its Maintenance of Way fimctions from the traditional Monday through Friday (five-day week) to a Sunday through Saturday (seven-day week) operation. There would be fewer train interruptions and increased productivity by scheduling track maintenance functions on those two previously underutilized days. These changes in the Carrier's operations are not temporary, or seasonal-they are permanent, and the increase in both business volume and frequency of trains has continued to grow. This is a bona fide operational change in the ftmdamental way that the company does business. The Carrier has shown an operational need for 7-day assignments to perform needed (rack inspection and maintenance. The applicable Agreements and precedent Awards fully support Carrier's decision to so assign its Maintenance of Way forces.
Arbitrators usually follow the principle that words used by the Parties should be given their ordinary and popular meaning in the absence of an indication that they were intended mutually to convey some special meaning. See D. Nolan, Arbitration Law and Practice (1979), N.8 at 168; Walter Jaeger, Williston on Contracts, § 618 at 705 (4th Ed. 1961). The Restatement (Second) of Contracts is in accord: "In the absence of some contrary indication, therefore, English words are read as having the meaning given them by general usage, if there is one. This rule is a rule of interpretation in the absence of contrary evidence, not a rule excluding contrary evidence." (Restatement, N.13 at § 202, comment e). Relying on this "plain meaning rule", each of the Parties to this dispute argues that plain and unambiguous language in Rule 17, derived verbatim from the March 19, 1949 National Forty Hour Work Week Agreement, supports its position.
However, no less prominent a commentator than Justice Oliver Wendell Holmes made the following observation about the so-called plain meaning rule: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 US 418, 425 (1918). It is also noted that the strict plain meaning rule was rejected in the Restatement (Second) of Contracts. (Section 212, comment b (1979)).
It must be established as a starting point that the language of Rule 17 is not so crystal clear that the position of either party in the present case is plainly vindicated or that the other can be dismissed out of hand solely by reading the words of Rule 17 standing alone. Almost since its
inception in March 1949, the artfully drafted compromise language of the negotiated National Forty
Hour Work Week Agreement has been a fertile source for controversy which has required frequent
arbitral intervention. Like the present case, almost all of those disputes have involved reconciliation
of the inherent tension in the language appearing in the following phrase from Rule 17 (a): ....the
work weeks may be staggered in accordance with the Management's operational requirements, so
far as practicable the days off shall be Saturday and Sunday. The foregoing is subject to the
provisions of this rule which follows .... Nor is reconciliation of that language easily accomplished
simply by reading the specific provisions of Rule 17 (b): On positions the duties of which can
reasonably be met in five days, the days off will be Saturday and Sunday. [cited by the Organization
] and/or Rule 17 (d): On positions which are filled seven days per week any two consecutive days
may be the rest days with the presumption in favor of Saturday and Sunday. [cited by the Carrier].
When conflicting interpretations of a contract provision are thus plausibly demonstrated, the
language in dispute must be considered to be ambiguous and neither Party can find comfort in the
"plain meaning rule". Alternatively, each Party also invokes so-called "past practice", bargaining
history and a plethora of prior arbitration decisions interpreting the disputed language. Since the
language of the collective bargaining agreement is ambiguous, the arbitrator may rightly consider
such parole evidence of mutual intent to resolve a dispute as to the meaning of the unclear contract
language. Several sources of evidence may be utilized in order to determine the intent of the parties
when entering into ambiguous contract language, including bargaining history, "past practice" and
arbitral interpretations. In this case, the correct answer is found in the arbitral gloss to the above-
cited language of Rule 17, which has been laid down in a line of authoritative precedent decisions over the last fifty years.
The judicial doctrines of stare decisis and res judicata do not apply strictly in labormanagement arbitration. Although prior arbitration awards are not binding in exactly the same way that judicial decisions are, they do have considerable authoritative force. In that connection, one well recognized commentator on the arbitration process make the following important distinction:
See Elkouri & Elkouri, How Arbitration Works, 421-22, 4th ed., 1985), see also Timkin Roller Bearing Co=~anv, 32 LA 595, 597-599 (Boehm, 1958).
Absent a contractual mandate to do so, the Board Chairman is not bound in any legal or technical sense to follow the decisions of predecessors, even on the same issue. As a practical matter, however, where a prior decision covers the same parties, issues, facts and contract language, many arbitrators consider the interpretation laid down in the earlier award a binding part of the agreement, unless and until the parties change the underlying language. Even those who refuse to hold prior awards contractually binding give them serious and weighty consideration when called upon to interpret the same language. One eminent pioneer labor-management arbitrator stated the prevailing view as follows:
A wealth of reported decisions by respected arbitrators have reaffirmed the notion that a responsible arbitrator with proper regard for the arbitration process and for stability in collective bargaining, even though technically not bound, should accept an interpretation in a prior arbitration as binding, if it is on point, based in the same agreement and not plainly wrong. O & S Bearing Comp an , 12 LA 132, 125 (R. Smith, 1949); Brewers Board of Trade. Inc., 38 LA 679, 680 (Turkus, 1962). It is not necessary that the subsequent arbitrator endorse all of the reasoning expressed in the earlier opinion. What is important is that the earlier award be final, definitive and set forth a holding which is not palpably erroneous. Lehigh Portland Cement Co., 46 LA 133, 137 (Duff, 1965). In such circumstances, arbitrators generally conclude that it would be a disservice to the parties to subject them to the unsettling effects of conflicting and inconsistent interpretations of the same contract language in the same set of circumstances.
All of these factors lead me to conclude that proper disposition of the present case is achieved by application of the guiding principles laid down with authoritative force in precedent-setting decisions more than forty years ago and followed since by most Railway Labor Act arbitration tribunals which have addressed the confronting issues under the language of the Forty Hour Work Week. Close attention to these precedents demonstrates a remarkable consistency of analysis regarding the presumptions and burdens of proof to be applied in interpreting the Forty Hour Work Week Agreement language which appears in Rule 17. See, NRAB Third Division Awards 6502 and 6695 (Leiserson), 7370 (Carter), 17593 (Gladden), 23461 (Scheimnan), 28307 (Lieberman), 32795
(Wesman); NR-AB Second Division Award 8289 (Kasher); Board of Arbitration NMB Case No. 212 (Cole); Special Board of Adjustment 488 B&OBMWE, Award 35 (Lynch); Special Board of Arbitration UPBLE (Van Wart); PLB 4104 Awards 2,3,9, 10, 11 (Scheimnan); PLB 2166, Award 1 (Eischen), PLB 5565, Award 8 (Eischen). This consistency of analysis is broken only by sporadic outliers in which a few arbitrators were persuaded, for one reason or another, to depart from the authoritative line of precedent emanating from NRAB Third Division Awards 6502 and 6695 (Leiserson). Cf., NRAB Third Division Awards 6856 (Carter) [subsequently modified by Arbitrator Carter in Award 7370, supra, after his own analysis was rejected by the Board of Arbitration in NMB Case No. 212]; 10171 (McMahon); 30011 (Marx) and 31300 (Wesman).
The overwhelming weight of authority in the better-reasoned majority line of cases follows the reasoning first laid down by Arbitrator William Leiserson 45 years ago in NRAB Awards 3-6502 and 3-6695. The Leiserson analysis was later adopted in its entirety by the Board of Arbitration in NMB Case No. 212 and by Arbitrator Edward Carter in NRAB Award 7370, supra. In the Majority Opinion of the Board of Arbitration in NMB Case No. 212 , dated June 4, 1956, Arbitrator David L. Cole (Chairman of the Emergency Board which had recommended the Forty Hour Week Agreement) expressly declined to follow Arbitrator Carter's decision in NRAB Award 3-6865, endorsed with approval Arbitrator Leiserson's decision in NRAB Award 3-6695 and applied the Leiserson analysis:
Just three weeks later, on June 28, 1956, Arbitrator Carter rendered NRAB Award 3-7370, in which he synthesized the Leiserson analysis with his own views regarding presumptions and burdens of proof under the controlling language, as follows:
These early cases laid down the guiding principle, followed in all of the better-reasoned cases decided in the last forty years, that the language appearing in Rule 17 (a) and (b) creates a rebuttable presumption that existing five-day operations staffed by positions with a Monday-Friday work week and Saturday-Sunday rest days should not unilaterally be changed to seven-day operations with other than Saturday-Sunday rest days. A Carrier invoking the language of Rule 17 (a) and (d) to alter this status quo and justify implementing such a change from five-day Monday through Friday positions to seven-day positions with other than Saturday-Sunday rest days, bears the heavy burden of rebutting that presumption by producing clear and convincing evidence of necessity due to a material change of operational requirements, i.e., a bona fide operational need to make the change. Typical of this long line of cases is NRAB Award 3-17593 (Gladden, November 25, 1969), which cites Award 7370 (Carter) in concluding as follows (Emphasis added):
See also NRAB Award 2-8289 (Kasher, 1980); NRAB Award 3-23461 (Scheinman, 1981); PLB 2166, Award No. 1 (Eischen,1981);' Special Board of Arbitration UPBLE (Van Wart, 1989 ); PLB 4104 Awards 2,3,9, 10, 11 (Scheinman, 1989); NRAB Award 3-28307 (Lieberman, 1990); PLB 5565, Award 8 (Eischen, 1996); NRAB Award 3-32795 (Wesman, 1998).
Application of the principles established in this long line of cited precedent to the facts of the present case leads ineluctably to the conclusion that the Carrier failed to rebut the presumption because it did not produce clear and convincing record evidence of the operational necessity of changing Claimants' long-established Monday-Friday five-day positions, with Saturday-Sunday rest days so as to provide seven-day coverage with rest days other than Saturday-Sunday. The primary reasons advanced on the property by Carrier to justify the change were "management rights", efficiency and avoidance of overtime, round-the-clock 24 hour/7 day operations, consistency with a "Service Lane" internal reorganization implemented by a new management team in 1995, "traffic and train density" and "safety of train crews and the traveling public". It is well established that avoidance of overtime payments to incumbents of five-day positions for occasionally necessary Saturday-Sunday work is not alone an "operational necessity"sufficient to overcome the presumption discussed supra, and railroading, per se, has always been a 24/7 operation. See, e.g., Board of Arbitration NMB Case No. 212 (Cole); Special Board of Adjustment 488 B&O/BMWE, Award 35 (Lynch); NRAB Awards 3-6695, 3-7370, 3-14098, 3-17343 and 3-19622; Special Board of Arbitration UP/BLE (Van Wart).
Aside from rhetorical flourishes, there is virtually no evidence in this record to support Carrier's assertions that the challenged work week/rest days change was necessitated by material operational changes involving safety or customer demands and the other asserted reasons simply do not rise to the level of material operational necessity sufficient to rebut the presumption and justify unilateral change of the status quo. To the contrary, the available evidence supports the conclusion
that, just as in Award 35 of SBA 488, supra, before, during and after the disputed changeover by Carrier, the work performed by Gang 5DC6 remained de facto a five-day operation, despite Carrier's unilateral de jure declaration that, effective April 1, 1996, it would henceforth be scheduled and compensated as a seven-day operation. In that connection, the record shows that on only two (2) occasions in the two (2) years that they worked under the disputed Wednesday-Sunday workweek schedule did Claimants perform work on a Saturday or Sunday which immediately affected Carrier's operations on those days; otherwise the work they performed on those former Saturday and/or Sunday rest days was routine maintenance work no different than that performed on any other work day. [It is noted that after approximately two (2) years under the disputed schedule, in mid-May 1998, Carrier unilaterally changed the Gang 5DC6 work week to a Sunday-Thursday work week with Friday-Saturday rest days.]
Based upon all of the foregoing, we conclude that Carrier did violate Rule 17 of the Agreement when, effective April 1, 1996, it changed the work weeks/rest days of two (2) man Gang 5DC6 from Monday through Friday with Saturdays and Sundays designated as rest days to Wednesday through Sunday with Mondays and Tuesdays designated as rest days, as claimed in System Files B-TC-1699/12(96-1499) and B-TC-1756/12(970063) BOR. As remedy for that proven violation, Carrier is directed to compensate Claimants, for the periods of tune claimed in the claims under consideration, in an amount equal to the difference between what they actually earned under the contractually invalid schedule and what they would have earned but for the violation of Rule 17. Specifically, Carrier shall compensate Foreman R. J. Nedeff and Trackman D. B. Bohrer,
the two (2) employes assigned to Gang 5DC6 before and after the invalid change, an additional halfhours pay for each hour worked on their former Saturday-Sunday rest days because of the new changed schedule during the period June 1, 1996 through August 6, 1996, [as claimed in System Files B-TC-1699/12(96-1499)] and for the period August 10, 1996 through September 23, 1996, [as claimed in System Files [B-TC-1756/12(970063) BOR]. [Contrary to the assertions of the Organization, the two (2) claims which are the foundation for the Board's jurisdiction in this matter were filed for specific dates certain and not as "continuing claims"].
As authority for the overtime "make whole" remedial damages for the Saturdays and Sundays covered by these claims, we rely on NRAB Awards 3-13738 (Dorsey) , 3-19947 (Blackwell), 325968 (Marx), 3-30662 (Eischen), 3-30987 (Eischen), 3-31453 (Meyers) , 3-31590 (Eischen) , 332107 (Zusman) and PLB No. 2206, Award 52 of (Eischen). In short, the appropriate rate for calculating damages is the rate the injured employee would have earned but for the violation of Rule 17. The Organization's plea for additional straight time damages for the "lost work opportunity" on Mondays and Tuesdays covered by these claims is not persuasive. The majority of reported decisions, including the only on-property precedent between these same Parties involving the same facts, contract language and issues, do not award such damages in addition to the overtime damages. See SBA No. 488, Award 35 (Lynch). Finally, the Parties have informed the Board that they wish to use this decision as a basis for possible resolution of a number of related claims. At their joint request, the Board will retain jurisdiction for that purpose, which may be invoked by either Party upon written notice to the Chairman.
1) Carrier did violate Rule 17 of the Agreement when, effective April 1, 1996, it changed the work weeks/rest days of two (2) man Gang 5DC6 from Monday through Friday with Saturdays and Sundays designated as rest days to Wednesday through Sunday with Mondays and Tuesdays designated as rest days, as claimed in System Files B-TC-1699/12(96-1499) and B-TC-1756/12(970063) BOR.
2) As the appropriate remedy for the proven violation, Carrier shall compensate the Claimants [Foreman R. J. Nedeff and Trackman D. B. Bohrer, the two (2) employes assigned to Gang 5DC6 before and after the change] in an amount equal to the difference between the overtime rate and the straight time rate for each hour of work which they performed on their former Saturday/Sunday rest days because of the new changed schedule during the period June 1, 1996 through August 6, 1996, [as claimed in System Files B-TC-1699/12(96-1499)] and the period August 10, 1996 through September 23, 1996, [as claimed in System Files B-TC-1756/12(970063) B OR], .
3) Carrier shall implement this Award within thirty (30) days of its execution by a majority of the Board.
4) At the joint request of the Parties, this Board retains jurisdiction to resolve any disputes which might arise over the interpretation of this Award and/or over its application toward the resolution of other related claims held in abeyance pending rendition of this Award.