SPECIAL BOARD OF ADJUSTMENT N0. 570
ESTABLISHED UNDER
AGRE'DENT OF SEPTEMBER
25. 1964
Chicago, Illinois - January
28, 1972
PARTIES System Federation No. 11/,
ZQ
Railway Employes' Department
DISPUTE: AFL - CIO - Firemen & Oilers
and
Southern Pacific Transportation Company
(Pacific Lines)
STATE That under the provisions of Article I, Section
2
O
(a) Transfer of work; (b) Abandonment, discontinu-
W
:
ance for
6
months or- more, or consolidation of
facilities or services or portions thereof; (c)
Contracting out of work; Mediation Agreement Case
No. A-7030 of September 25, 1964, the six (6)
furloughed laborers at the abandoned car cleaning facility at
Sacramento, California should have been given a 60 day notice and
all~the protective benefits contained in said Article I of the
September.25, 1964 Agreement. The laborers positions were abol
ished and the car cleaning-facility closed, resulting in the fur
lough at.the close of shift January 13, 1970 of laborers C..,Reed,_
- E. J. Ollison, W. W. Echols, M. M. Wormely, G. Aldana and W. L
Langston. . These abovlisted employer hereinafter.referred-to as
the Claimants, should-have been afforded the
60
day.notice and the
protective provisions of Article I of the September 25, 1964 Medi
ation Agreement, Case No. A-7030..
DISCUSSION An important issue exists in this case. It appears
AND that the Claimants were Laborers who held car clean
FIP?DINGS: ing positions at Sacramento. Their positions were
abolished at the close of their shift on January 13,
- 1970. Carrier wrote the Employes-on May 8, 1970
that "These job abolishments were made in the normal
fluctuation of work and lack of cars to be cleaned, partially as a
result of ICC regulations".
S.B.A. No. 570
Award
No.
263
Case
No.
325
_-2 _
Employes-contend that the Carrier has "abandoned its
car cleaning facility at Sacramento, California'. The work of clear
ing freight cars was primarily transferred to the shippers.
The record shows that prior to January 13, 1970 eight
laborers cleaned cars on tracks 25, 26, 27, 28 and 29 by removing
all dunnage and debris. 7tro such laborer positions were not abolished. They are still retained to do essential work. In addition
to cleaning cars they perform a variety of other laborer duties.
Since 1903 shippers have been required by law to
clean cars. But it was never enforced until the ICC issued a notice on October 20, 1969 which, in part, says; ,
'7he Interstate Commerce Commission by
this notice cautions the public and
carriers of consignees' duty to completely unload rail cars received
loaded with goods that have moved in
interstate commerce subject to carload
rates and charges, .
"The Commission interprets Rules 1.4 and
27~of the Uniform Freight Classification
to obligate consignees of carload freight
to completely unload frcm such cars,. at .. .
their expense,
all
dunnage, debris, or
other foreign-matter connected with-theinbound shipment so as to return rail
height cars to the carrier in a condition for loading by another shipper
without further unloading. The Commission reminds consignees that the
attempted release as empty of a car
which has not been completely unloaded
or in which debris has been placed by
a consignee is an unlawful solicitation
of a trash removal privilege having the
_ -, effect of a concession or discrimina-
tion forbidden by the Elkins Act and
Section 6 (7) of the Interstate Com
merce Act.
S.B.A. No. 570
Award No. 283
Case No. 325
"The Commission expects all carriers by
railroad subject to its ,jurisdiction to
enforce Rules ll, and 27 of the Uniform
Freight Classification to the extent
that when a carrier becomes aware of
the breach by a consignee of its duty
to unload completely, the carrier is
not to pull the car but to leave it at
the consignee's tracks on demurrage or
under special detention rules in accordance with applicable tariffs until
the consignee has fulfilled its unloading obligation. Additionally, the Commission expects carriers, when they become aware that a consignee has put debris into a car released as empty,
either to refuse the car and hold it on
demurrage or under special detention
rules, or to bill the consignee under
applicable tariffs for the transporta=
tion of refuse".
The notice sets
up
an-investigative force and provides for prosecution of the consignee or the carrier or both under
the Elkins Act.
There was neither a "transfer of work" nor an "aban-.
donment" under Article I, Section 2 of the September 25; 1964 Agreement. Carrier did not.voluntarily.transfer the.work of cleaning
cars to its consignees, nor did it abandon car cleaning operations.
It merely complied with the legal order of. the ICC and ceased cleaning consignees' cars. The mere fact that consignees were obliged
by law to clean their cars.prior to the October 20, 1969 ICC notice
is of no criteria. That this law had not been previously enforced
is also irrelevant. The fact remains that a law obligating consipnees to clean their own car does exist and action to enforce
ttat law was taken. Carrier could not ignore the law nor the ICC
notice e~z thout subjecting itself to prosecution and resulting penalties.
S.B.A. No. 570
Award No. 283
Case No. 325
It is a well established general principle of law
that "a contract which binds a party to do that which is contrary
to public policy is void". (17 Am Jur 2d para 176). Such a contract is unenforceable. In Award No. 221 this Board recognized
this principle and said:
".
. The Courts of our land have held,
without exception, that a provision in
a contract of any type is a nullity if
the same violates a Municipal, State or
Federal law".
In Third Division Award No. 16325 a junior employe,
who had a New Jersey license to operate a locomotive crane, was
assigned to a vacant position. A claim by a senior employe was
denied and the Board said:
!'The Sovereign State of-,New Jercey had
by statute required persons engaging
in operating locomotive cranes to first
qualify by examination and obtain a
license from the-State to so engage.
If the normal operation of the seniority
rule. was interferred with in this case
it was on account of law and not management".
A comparable claim was denied for_th_e same reason in Award No.
10977: See also. Award No. 12970. -
There are many awards holding that the Hours of Service Law takes precedence over specific contract provisions. In - -
Award 10956, with this Referee, the.Hoard held that the "Hours of
Work Act like the Railway Labor Act is substantive law which takes
precedence over procedural matters, past practices, and issues of
fact. Neither may the parties by contract or practice, nor may
this Board, ignore the specific limitation of work hours contained
therein."-
S.B.A.
No, 570
Award
No. 283
Case No.
325
As a result of the law and the ICC enforcement notice,
Carrier may no longer clean consignees' cars. Fewer laborers are
needed. The abolishment of Claimants' position resulted from the
decision of the ICC.
No
other employes of the Carrier are doing
this work. Carrier did only what it was obligated to do by law.
The work practice that existed prior to October
20, 1969
has no
legal effect or obligation since its very essence was in violation of law. A practice may not contravene or ignore a statutory
requirement. This is not a transfer of work, an abandonment of
service or a discontinuance of a contract. See Awards
11,3, 144
and 145.
Upon the whole record and all of the evidence, it
is the finding of the Board that Carrier's compliance with the law
is not such an act that can be construed as a violation of Article
I, Section
2.
of the September 25,:
1964
Agreement.
AWARD
Claim denied.
Adopted at Chicago, Illinois - January
28, 1972.
Neutral Member
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Carrier Members, Employee Members