SPECIAL BOARD OF ADJUSTMENT NO, 570
Established Under
Agreement of September 25,1964
SBA ?v`o. 570
Award No.
1~04
PARTIES Brotherhood of Railroad Carmen Division Transportation
Communications International Union
TO and
DISPUTE: , Burlington Northern Railroad Company
STATEMENT OF THE CLAINI:
1, That the Burlington northern Railroad Company violated the terms
of our Current Agreement, in particular Appendix "G-1" National
Mediation Agreement of September 25, 1964, Article 1, when they
failed
to give proper notice of a change in operation and failed to
provide Claimants with protective benefits as per Sections 6 or 7 of
Article 1.
2. That, accordingly, the Burlington Northern Railroad Company be
ordered to compensate furloughed Carmen R., L. Todd, D. L.
McCabe, S. C. Young, E. E. Fraerich, J. J. Schoolcraft~ S. D.
Toombs, P. E. Avers, and K. Fi. Eloge in the amount of fifty-five
(55) days pay each for their rate and class account of the deficiency
in notice of the change in Carrier operation and that the Claimants
be afforded a monthly dismissal allowance as provided, for in
Article 1, Section 6 or their option of Section 7 of September 25,
1964 Agreement.
FT?YDLN~,S,:
By bulletin dated January 13, 1987, the Carrier abolished three train yard inspector positions in the Mechanical Department at Guernsey, Wyoming,effecdve January 18,
1987. By bulletin dated January 20, 1987, the Carrier abolished two leadman relief, two
leadman and ten Carman positions 'at Alliance, Nebraska, effective January 25, 1987. By
bulletin dated January 20, 1987, the Carrier advertised for two leadman, one leadman rslief, two relief carmanlleadrnan and two carman positions at Alliance. By bulletin dated
January 20, 1987, the Carrier furloughed seven of the eight
named
Claimants at Alliance,
effective January 30, 1987. By corrected abolishment notice dated January 21, 1987, the
' SBA No. 570
Award No.
Case No. 1 b~
i r
Page 2
Carrier abolished two leadman, one Leadman relief and nine Barman positions effective
January 30, 1987.
According to the Carrier, these abolishments occurred as a result of the decision
of Oklahoma Gas and Electric Company (OG&E) to cease coal shipments under a con
tractual arrangement with the Carrier during the
remaining two
years of that arrange
ment-an arrangement that, according to the Carrier, expired December 31, 1988.' The
Carrier asserts that in December 1986 it was advised by OG&E that OG&E was going to
divert all of the Red Rock tonnage to another carrier effective January 1, 1987Bwhich ul
timately resulted in a loss of approximately 4 million tons of coal, or approximately
40,000 cars of business in 1987, thereby causing the abolishment of certain cw-man posi
tions at Guernsey and Alliance.
This Board does not find that the Organization has sufficiently demonstrated the
existence of an Article I, Section 2 event and therefore we mast deny the claim.
. First, a threshold dispute raised by the Carrier focuses upon the Carrier's assertion
that Article I, Section 2(e)'s reference to "Voluntary or involuntary discontinuance of
contracts" is not applicable to the coal hauling Co=actual arrangement between the
Carrier and OGRE because at the time Article I, Section 2(e) was drafted the kind of
contractual arrangement between the Carrier and OG&x was illegal. Specifically, the
Carrier argues that these types of arrangements were not made lawful until the ICC es
tablished a procedure in 1978 for dete , =ning the legality of such provisions which was
then superseded by the passage of the Staggers Rail Act of 1980 which expressly permit
ted private rate contracting. The Organization asserts that the arrangement between the
Carrier and OG&E constitutes a contract within
the meaning
of Article I, Section 2(e).
The Carrier's argument is
not
persuasive. '?his Board is confined to the clear ]an
The
record discloses the existence
of two
contracts between
the
Carries and OG&E.
The
fast involves
the movement
of Wyoming Powder River Basin coal
via BN-Kansas City-MP to OG&H's Muskogee
Plant
at Fort Gibson, 01dahoma. The second involves
the
movement of Wyoming Powder River Basin coal via
BN-Kansas City-ATSF to OG3tE's Sooner Plant at Red Rock, Oklahoma.
' SBA No.
spa
Award No,
Case No. i2~
Page 3
guage of the Agreement Assuming for the sake of discussion that contracts of the type
between the Carrier and OG&E were illegal at the time the Agreement was drafted, it is
undisputed that at the time of the relevant incidents in this matter those types of contrac
tual
arangements were
lawful, A fundamental rule of contract construction is that nego
tiated words are to be given their ordinary and commonly accepted meaning.
At the rime
this dispute arose,
the contractual relationship between the Carrier and OG&E was a
valid "contract". Had the sophisticated negotiators of this Agreement intended that the
kind of contractual arrangement between the Carrier and OG&E not be within the ambit
of Attic'.-a 1, Section 2(e), then, when those types of contracts were made lawful, they
could have easily exempted them from coverage from Article T, Section 2(e). Their fail
ure to do so speaks eloquent silence to that fact that such was nor intended Although
perhaps simplistic, given the rule of constzuction requiring ordinary and common usage
`~ of words, the argument that "a contract is a contract is a contact" is a persuasive one.
T"ne Carrier's cited authority does not change our conclusion. The Carrier cites
Awards standing for the proposition that the Agreement :rust be construed in accord--.cc
with existing laws and practices and, for example, cites to Awards 283 and 710 of this
Board and Thixd Division Award 12970. However, examination of those Awards shows
that contract provisions which conflicted with existing law
at the time the dispute arose
would not be applied because such would itself be unlawful. See Award 283 (ICC issued
notice it would enforce existing regulations concerning car cleaning[; Award 710 ("the
[statutory] requirement of a master plumber was in force at
the rime
that the work was
contracted out ...."); Award 12970 ("due to the
esisrence
of this ordinance [requiring Iieensed individuals to perform plumbing and electrical work], we hold the Carrier did not
violate the agreement when it allowed an outside contractor to perform the work ...,"j
~, [emphasis added].
l.-t
those cases, at the time the dispute arose the existing statute, regu-
lation or ordinance conflicted with the terms of the relevant Agreementand, therefore, the
SHA No 570
Award No:
LO Z
Case No. 1269
Page 4
Hoard would not construe the contract so as to violate the existing law. That is not the
case herein- Here, at the
time the dispute arose
in 1987, there was nothing unlawful
about the contractual arrangement between the Carrier and OG&E.
Second, with respect to the Organization's position, we are not persuaded that the
facts herein demonstrate a "discontinuance of contracts" under Article I, Section 2(e). It
is undisputed that the arrangement between the Carrier and OG&E "was to expire in
December, 1988" as the Carrier asserts. See the Organization's letter of July 21, 1987
(Org. Exh. I). Thus, it is not disputed, that at the time the events arose in January 1987, the
contractual arrangement between the Carrrier and OG&E existed and had approx4riately
two years to run. Therefore, we cannot say that there was a "discontinuance"
of
the contractual arrangement between
the Carrier
and OG&E therefore making the occurrence in
this matter an Article 1, Section 2 event- At most, OG&E did not utilize the contractual
arrangement to the extent it did in tire past. Hut nevertheless, the contractual arrangement
remained in effect after the incident L7volved in this case.z
The Organization's cited authority does not change our conclusion. Reliance
upon the line of authority typified by Avrards 95 and 406 of this Board show that in those
cases
there was an action by the customer to "cancel the arrangement" (Award 95) or a
"termination of the agreement" (Award 406). Here, the evidence shows that the contractual arrangement remained in effect for two years after the incidents giving rise to the
dispute.
Third, with respect to the notice question, Article 1, Section 4 mandates "at least
sixty (60) days ... written notice of the abolition of jobs as a result
of changes
in operations for any of the reasons set forth in Section 2 hereof ...:' The Carrier clearly did not
give 60 days notice in this r"natter. However, because we are not satisfied that an Article
According to the affidavit of Assistant
Vice
President Y. M. Mmagan (Car.
Exh. 8), OG&E
continued
to nove tonnage under the contract covering ahe Muskogee plant.
' SBA No. 570
Award No.
Case No. 12
' Page 5
I, Section 2 event has been shown, we axe unable to find a violation of the notice provi
sions in Article I, Section 4.
Fourth. we must address the consequences of the Carrier's failure to provide a
copy of the OG&E contract to the Organization. Because of confidentiality reasons arising out of the competitive nature of the coal business, the Carrier declined to provide the
Organization with a copy of the contract between it and OG&E. Instead, the Carrier provided an affidavit from Assistant Vice President Flanagan addressing certain aspects of
the arrangement! Under other circumstances, such a failure to disclose would entitle the
Organization to adverse inferences against the Carrier. See Third Division Awardi 28430
and 28229 (the carriers were not pennutted to rely upon the terms of leases that they refused to timely divulge to the Organization). However (with the exception of the
Organization's assertion that OG&E bought back the contract discussed immediately below), here the existence of the contractual arrangement between the Carrier and OG&E is
not disputed and the duration of that arrangement for two years after the events in qucston is similarly not disputed. Given these undisputed facts essential to the resolution of
this dispute, we are not satisfied that disclosure of the terms of that contractual arrangement would have changed the result of this matter. Most significantly, the Carrier has not
relied upon a specific term of that contractual arrangement as a defense in this matter
wherein the existence of t-hat terns is disputed by the Organization and that term is material for the resolution of the dispute. Again, the operative and undisputed determinative
fact is the existence of the contractual arrangement between the Carrier and OG&E which
ran until December 1988. Compare Third Division Award 28430 ("after having failed to
produce the Lease
upon which it relied,
the Carrier cannot now rely upon the terms of
that Tease as a defense to the Claim.' [emphasis added]). Here, the Carrier has not relied
upon a disputed term of the OG&E contract
which
is material to the resolution of this
3
According to the Carrier (Car. Submission at 17), confidentiality
is
further mandated by ICC rules.
- SBA No. 570
' Award No.
Case No. 12
Page 6
dispute.4
Fifth,
while the record developed on the property shows that the existence of the
contractual arrangement between the Carrier and OG&fi lasting until December 1988
was
not a disputed fact, the Organization did argue that OG&E
"bought back a
contract with
the
Burlington Northern Railroad Company for an arnount of twenty-one
million
dollars
($21,000,000) which was paid to the Burlington
Northern Railroad
... [which] information was received by one of [the Carrier's] supervisors." See Org. Exh. I. We find that,
without further detail, such an unsupported assertion is, at most, speculative and not sufficient for this Board to find that the Organization
has shown
that the contractual arrangement between the Carrier and OG&E which was to last until December 1988 ceased
to exist before that date. .
Thus, the record sufficiently demonstrates that as
a
result of OG&E's actions, the
Carrier incurred a loss of approximately 4 million tons of coal, or approximately 40,000
cars of business in 1987 thereby causing the abolishment of certain positions at Guernsey
and Alliance. See SBA 5?0, Award 409 (no violation where a shipping route was
changed at the request of shippers). «'e are therefore unable to sustain the claim.
Based on the above, the claim must be
denied.
Perhaps this entire problem could have been avoided through a disclosure of the terms of the contract
with the competitive material
6eteted. However,
given a circumstance where the Carrier specifically relies
upon a term of a non-disclosed contract which term is material to the resolution of the dispute. we cannot
say the result would
be cltc same. See Awards 28430, 28229,
supra and cases cited Herein. While we recognize the need (and. indeed the requirement in some circumstances) for confidentiality, by the same wkm
the Organization is entitled to see the information material to the resolution of a dispute
upon which
the
Carrier may rely. Procedures for
disclosure of
arguably confidential material
are
routine
in
litigation
(c.g..
through use of protective agreements preventing disclosure to outside interests, excising of competitive material and the like). The same could have been accomplished here which would have efeczively balanced
the Carrier's right to confidentiality and the organization's right to see evidence.
Claim denied.
This Board, after consideration of the dispute identified above, hereby orders that
an
award favorable to the Claimants not be
made.
Edwin H. Benn, Neutral
~,._x-~-
J
atrcerMembe~ Labor ~ e bets
Adopted at Chicago, lllinois, this
0
day of JA,vro,4.,%J') , 1993.
S
SPECIAL BOARD OF ADJUSTMENT NO. 570
AWARD NO.
ZD
94
(SBA CASE NO. 12699)
REFEREE: EDWIN H. BENN
CONCURRING AND DISSENTING OPINION OF THE LABOR MEMBERS
OF SPECIAL BOARD OF ADJUSTMENT AWARD NO. 570
The Labor Members of SBA 570 concur in the
findings of the
eminent and
distinguished neutral in this instant case wherein he
stated:
"According to the Carrier, these abolishments occurred as
a result of the decision of the Oklahoma Gas and Electric
Company (OG&E) to cease coal
shipments under
a
contractual arrangement with the carrier during the
remaining two years of that arrangement-an arrangement
that, according to the Carrier, expired December 31,
1988.I/ The Carrier asserts that in December 1986 it was
advised by OG&E that OG&E was going to divert all of the
Red Rock tonnage to another carrier effective January 1,
1987, which ultimately resulted in a loss of 4 million
tons of coal, or approximately 40,000 cars of business in
1987, thereby causing the abolishment of certain carmen
positions at Guernsey and Alliance."
Labor Members point out to the interested reader of this
document that the referee has accurately and factually set forth
The record discloses the existence of two contracts between
the Carrier and
oG&E.
The first involves the movement of Wyoming
Powder River Basin coal via BN-Kansas City-MP to OG&E's Muskogee
Plant at Fort Gibson, Oklahoma.
The second
involves the movement
`°' of Wyoming Powder River Basin coal. via BN-Kansas City-ATSF to
OG&E's Sooner Plant at Red Rock, Oklahoma.
SBA 570
Award No. / t
`~tr
case No. 1269
Page 2
the exact position of the carrier and the employees in this instant
dispute. This dispute is bottomed on Article I of the September
25, 1964 Agreement, as amended and it is noted that certain
provisions of this agreement reads specifically:
"The protective provisions of the Washington Job
Protection Agreement of May, 1936, shall be applicable,
as more specifically outlined below, with respect to
employees who are deprived of employment or placed in a
worse position with respect to compensation and rules
governing working conditions as a result of any of 'the
following changes in their operations of this individual
carrier:
e. Voluntary or involuntary discontinuance of
contracts;"
The Labor Members carefully point out that the exact contract
language above (e. Voluntary or Involuntary Discontinuance of
Contracts) does not contain the word cancellation and/or
termination. it is discontinuance. It was and is the position of
the employees that the OG&E was engaged in the voluntary
discontinuance of its contract with this carrier when it diverted
40,000 cars of business away from this carrier. It was and
continues to be the position of the employees that this carrier was
involved in an involuntary discontinuance of contracts, over which
it had no control, when the customer (OG&E) discontinued the use of
its contract. It is simply pointed out that in the agreement
itself there is no necessity
and
no need for a cancellation or a
cessation of a contract but rather the voluntary or involuntary
discontinuance of that contract will trigger benefits.
The employees dissent to the referees finding that:
OThe Board does not find that
the
organization has
sufficiently demonstrated the existence of an Article I,
section 2 event, and therefore, we Taust deny the claim."
The employees simply point out that the learned and revered
referee has clearly indicated a connective cause or a causal nexus
that directly affected the named claimants when this carrier lost
approximately 40,000 cars of business by a discontinuance of a
contract. by its customer. In the same breath this referee finds
that there is no connective cause between the placing of these
employees in a worse position with respect to compensation and
working rules and the discontinuance of contracts that covered
approximately 40,000 cars of business. The employees vigorously
dissent to the finding that there was not a connective cause
between the furloughing of the named claimants in this claim and
the carrier being affected by an involuntary discontinuance of the
contract on its part and these named claimants were affected by a
voluntary discontinuance of a contract with this carrier on the
part of the OGSE. With SBA 570 Awards 658, 704 and 739, in front
of him the referee elected to find that there was no nexus or
connective cause between these two events. SBA 570 award 6S8, 704
and 739 define, by referee's, a connective cause or a causal nexus
between events and claimants under Article a of the September 25,
1964 Agreement, as amended.
The findings of this
Board also
state:
"The organization's cited authority does not change our
conclusion. Reliance upon the line of authority typified
by Awards 95 and 406 of this Board show that in those
cases
there was an action by the
customer to "Cancel
the
arrangement" (Award 95) or a "termination of the
agreement'*
(Award 406).
Here,
the evidence shows that
the contractual arrangement remained in effect for two
years after the incidents giving rise to the disput&."
It is once
again carefully pointed out to the
interested
reader of this document that the words of that agreement itself 'do
not contain "cancellation" or "termination" but rather the
!'voluntary or involuntary discontinuance" of a contract.
The employees respectfully submit that this award contains
palpable error and is, therefore, worthless for any
use
as
precedental value in any arbitration forum, including but not
limited to those created under the Railway Labor Act.
Labor Member
a
r
Laborer
habor~tjhaber
CARRIER MEMBERS' CONCURRING
AND DISSENTING OPINION
TO
AWARD 1096 CASE 1269
(Referee Jenny
The Referee
denied
the claim on
the basis
"...the operative
and undisputed determinative fact is the ,existence of the
contractual arrangement between the Carrier and the OG&E which ran
until
December 1988." The record supports the existence of the
contract and the Referee's
decision is
clearly correct
in
that
regard.
We
cannot
agree, however, with the Referee's dicta rejecting
the carrier's assertion that the 8N-OG&E Agreement could not
properly be characterized as a "contract" within the meaning of
Article I, Section 2 of the September 25, 1964 Agreement.
While there is
much
that
could be
said about this matter in
'support of the Carrier's argument, inasmuch as the issue is moot
insofar as this
case is concerned, we will
refrain from doing so.
in our view, the Referee erred by addressing the matter and further
erred with
respect
to his conclusion concerning it.
s
M. C.
Lesnik M. W.
FifigerWE-
E. Yos t
I
January 20, 1993 _