Opposition Brief — Transportation Communications Union v. Baltimore & Ohio Railroad

| , Court, U.S.

2 fir L ERED

DEC 12 1987

No. 87-776 TB gosepe €, spanion, up.

CLERK

vane

In The

Supreme Court of the United States

October Term, 1987

°

TRANSPORTATION COMMUNICATIONS UNION,

Petitioner,

THE BALTIMORE AND

OHIO RAILROAD COMPANY,

Respondent.

Oo

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

Ly

Vv

H. Russet SMovusE

D. CHRrIsTOPHER OHLY

; MELNICOvE, KauFMAN, WEINER,

Of Counsel: Smovuse & Garsis, P.A.

36 S. Charles Street, 6th Floor

eee : toe Baltimore, MD 21201

( : (301) 332-8500

CSX Transportation

500 Water Street Attorneys for Respondent

Jacksonville, FL 32202

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or cail collect (402) 342-2831

QUESTION PRESENTED

WHETHER THE COURT OF APPEALS WAS COR-

RECT IN HOLDING THAT, BY COMPLETELY IG-

NORING CRITICAL CONTRACT TERMINOLOGY,

WHICH REQUIRED THAT AN AWARD BE MADE IN

FAVOR OF THE RESPONDENT, THE NATIONAL

RAILROAD ADJUSTMENT BOARD RENDERED A

DECISION WHICH DID NOT DRAW ITS ESSENCE

FROM THE PARTIES’ COLLECTIVE BARGAINING

AGREEMENT, AND THEREBY EXCEEDED ITS

JURISDICTION.

TABLE OF CONTENTS

APPENDIX:

Opinion of the Third Division of the National

Railroad Adjustment Board (June 28, 1984)

{| SOMA IER eS

iil

TABLE OF AUTHORITIES

CASES

Page

Amanda Bent Bolt Company v. International

Union, Etc., 451 F.2d 1277 (6th Cir. 1971)... 24

Andrews v. Lowisville & Nashville Railroad Co.,

I i snamssacsencenenennsnnisnennes 22

Atchison, Topeka & Santa Fe Ry. Co. v. Buell,

107 S.Ct. 1410, — U.S. — (1987) nanan aceasta 22

BRAC v. Kansas City Terminal Ry. Co., 587

5 S ) | eee 16, 19

Brotherhood of Railroad Trainmen v. Central

Georgia Railway Co., 415 F.2d 403 (Sth Cir.

AS Dl Scatbhbisiasassn 16, 19, 22, 23, 28

Clinchfield Coal v. District 28, UMW, 720

F.2d 1365 (4th Cir. 1983)_..........3, 17, 18, 25, 27, 28

Detroit Coil v. Int’l Ass’n of Mach., 594 F.2d

575 (6th Cir. 1979) ............... testis aka scien hoa 20, 24, 25

Diamond v. Terminal Ry. Alabama State Docks,

aie ae foe Gar. Aero) 16, 19

Gen’l Drivers, Warehousemen v. Hays &

Nicoulin, 594 F.2d 1093 (6th Cir. 1979).......... 20, 24, 25

Gunther v. San Diego and Arizona Railway

an ce ee fae) 16, 18, 21, 22

Industrial Mutual Association v. Amalga-

mated Workers, 725 F.2d 406 (6th Cir.

aa eer 24

Int’l Ass’n of Mach. v. Hayes Corp., 296 F.2d

I ead 18

Int’l Ass’n of Mach. v. So. Pac. Transp.,

coe fue ae (eee Car. 1960) 16, 19

Int’l U. of Operating Eng., Local No. 9 v.

Shank-Atrukovich, 751 F.2d 364 (10th Cir.

NS cn ES 20, 25

iv

TABLE OF AUTHORITIES—Continued

Page

Koloedey v. Mutual Beneficial Ass’n, etc., 526

Fr. ste The Ce Oe, Bee) 19

Ludwig Honold Mfq. Co. v. Fletcher, 405 F.2d

RED CORR SI, TI iene 16, 20, 28

Mistletoe Express Service v. Motor Express-

mens Union, 566 F.2d 692 (10th Cir.

ED ssesiscnaschcaprnteiadtaliads tetera me tari 17, 20, 24, 25

Monongahela Power Co. v. Local No. 2332,

IBEW, 566 F.2d 1196 (4th Cir. 1976) 0. 20, 25

Morgan Services, Inc. v. Local 323, etc. 724

F.2d 1217 (6th Cir. 1984) fe Seceass

Norfolk Shipping & Pry Dock v. Local No. 684,

671 F.2d 797 (4th Cir. 1982) awd, 20

Northern Pipeline Const. Co. v. Marathon

Pipeline Co,, 102 S. Ct. 2858 (1982) 18

Piggly Wiggly Operators’ Warehouse, Ine. v.

Piggly Wiggly Operators’ Warehouse In-

dependent Truck Drivers Union, Local No.

1, 611 F.2d 580 (5th Cir. 1980) 2... i aeeae 18

Sears Roebuck Company v. Teamsters Local

Union No. 243, 683 F.2d 154 (6th Cir.) cert.

dented, 103 S. Ct. 1274 (1982) 0. 24

Textile Workers Union v. American Thread

Co., 291 F.2d 894 (4th Cir. 1961) 21, 25

Timken Co. v. Local No. 1123, United Steel

Wrkrs., 482 F.2d 1012 (6th Cir. 1973)... 18, 20, 25

Truck Drivers and Helpers Union v. Ulry

Talbert Company, 330 F.2d 562 (8th Cir. 1964). 24

U.T.U. v. Pittsburgh Charters & Y. Ry. Co., 353

Py. Ce tooo (ee Fe, re) 19

Union Pacific Railroad v. Sheehan, 439 U.S.

____ aneiatirtnat iyiiertiowe ss 0S ORs os WEN tote eNO TE 18, 21

TABLE OF AUTHORITIES—Continued

Page

United Food d& Commercial Workers, Local

No. 222 v. lowa Beef Processors, Inc., 683

en er 19

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593 (1960) 17, 18, 19, 28

United Steel Workers of America v. Warrior

and Gulf N. Co., 363 U.S. 574 (1960) on. 17,18

W.R. Grace & Co. v. Local Union 759, 652 F.2d

eS ARR I ahaa oie aera abet et Pgs ae eta 17

Wilson v. Chicago & N.W. Transp. Co., 728

eb ey, Re A.) ee nares 24, 28

STATUTES

Railway Labor Act

Section 3, First, 45 U.S.C. § 153, First ............... passim

LEGISLATIVE MATERIALS

S. Rep. No. 1201, 89th Cong., 2d Sess., [1966]

U.S. Code Cong. & Admin. News, p. 2887

I a 23,28

MIscELLANEOUS

Champion Papers, Inc., 69-1 ARB {] 8341 0. 20

Schotts Bakery, Inc., 69-1 ARB § 8118 0... 20

Wilner Wood Company, 69-2 ARB { 8734 WW... 20

No. 87-776

In The

Supreme Court of the United States

October Term, 1987

TRANSPORTATION COMMUNICATIONS UNION,

Petitioner,

Vv.

THE BALTIMORE AND

OHIO RAILROAD COMPANY,

Respondent.

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

ray

Vv

RELEVANT STATUTORY PROVISIONS

Railway Labor Act § 3, 45 U.S.C. § 153 First(q), pro-

vides:

(q) If any employee or group of employees, or

any carrier, is aggrieved by the failure of any divi-

sion of the Adjustment Board to make an award in

a dispute referred to it, or is aggrieved by any of

the terms of an award or by the failure of the division

to include certain terms in such award, then such

employee or group of employees or carrier may file

in any United States District Court in which a peti-

tion under paragraph (p) could be filed, a petition

for review of the division’s order. A copy of the pe-

tition shall be forthwith transmitted by the clerk of

court to the Adjustment Board. The Adjustment Board

shall file in the court the record of the proceedings

on which it based its action. The court shall have juris-

diction to affirm the order of the division or to set

it aside, in whole or in part, or it may remand the

proceeding to the division for such further action as

it may direct. On such review, the findings and order

to the division may be set aside, in whole or in part,

or remanded to the division, for failure of the division

to comply with the requirements of this chapter, for

failure of the order to conform, or confine itself, to

matters within the scope of the division’s jurisdiction,

or for fraud or corruption by a member of the division

making the order. The judgment of the court shall be

subject to review as provided in sections 1291 and

1254 of Title 28.

SUMMARY OF ARGUMENT

Although this Court has stated that the standard of

judicial review established by the Railway Labor Act is a

narrow one, it has never held that decisions of the NRAB

are beyond all judicial review, or that the federal courts

must uphold every award, no matter how egregious. An

NRAB award may be set aside for failure of the order to

conform, or confine itself, to matters within the scope of

the division’s jurisdiction, if an award is wholly baseless

ae fe

and completely without reason, if it is actually and in-

disputedly without foundation in reason or fact, or if it

fails to draw its essence from the collective bargaining

agreement.

This Court has already construed the ‘‘ jurisdictional’’

provision of 45 U.S.C. § 153 on several occasions. The

lower federal courts need no further guidance concerning

its meaning. The decision in this case did nothing more or

less than apply well recognized principles. The Fourth

Circuit explicitly recognized and applied the prior de-

cisions of this Court which limit the role of federal courts

in reviewing NRAB awards. Confining itself within those

narrow limits, the Court of Appeals properly held that,

even thovgh a labor contract is a generalized code to

govern the myriad cases which the draftsman cannot antici-

pate, this generalized focus does not permit an arbitrator

to rewrite the provisions of the collective bargaining agree-

ment. The decision in this case was in full conformity

with all of the prior holdings of this Court.

The decision in Clinchfield Coal, upon which both the

trial eourt and the Fourth Circuit relied, held that where

‘*the arbitrator fails to diseuss critical contract termi-

nology, which terminology might reasonably require an

opposife result, the award cannot be considered to draw

its essence from the contract.’’ This holding is fully con-

sistent with the long series of federal cases which have

held that an arbitrator may not re-write a labor contract,

and that if an arbitrator does not follow the express terms

of the agreement, his ruling cannot stand. No conflict

exists among the circuits which must be resolved by this

Court. Full review of the Union’s petition should thus

be denied.

>)

STATEMENT OF THE CASE

On June 28, 1984, a panel of the National Railroad Ad-

justment Board (NRAB), chaired by Referee Herbert Fish-

gold, issued decisions in six cases, finding that The Balti-

more & Ohio Railroad Company (Railroad) had vioiated its

collective bargaining agreement with the Brotherhood of~

Railway, Airline and Steamship Clerks, now the Transpor-

tation Communications Union (TCU), because yardmasters

rather than clerks tore off and separated five-part switch

lists' received at railroad yards on teletype printers.

Though the task takes just ‘‘seconds to perform’’, and is

incident to the yardmasters’ other duties, Referee Fishgold

ordered that the Railroad pay some sixty individual claim-

ants for three hours’ work, for each day on which yard-

masters tore off switch lists, a sum approaching $3,000,000

for past conduct alone.

The same day, June 28, 1984, another NRAB panel,

chaired by Referee Robert Silagi, issued a decision in an

1. Switch lists are simply compiled lists of railroad cars,

with directions concerning their combination for future use.

These lists are prepared by clerks, but are used by yardmasters.

Incident to their other duties, the yardmasters have been re-

quired to tear off the switch lists which they receive for use in

their employment, and, because these new printers use multi-

part paper, since 1971 they have also been required to separate

each of the four or five parts of the printer paper from one an-

other. The time consumed in tearing off and separating each

such switch list is a matter of seconds. The total time involved

in this activity is less than 5 minutes per day.

eee

identical case, brought by TCU on behalf of two individual

claimants, finding that the Railroad had not violated its

collective bargaining agreement with TCU by assigning to

yardmasters the task of tearing off switch lists teletyped to

Railroad yard office printers.

Beginning in 1974, the Railroad opened Terminal Ser-

vice Centers at various locations in its system. When these

Centers were opened, various yard and agency personnel,

including a number of clerical personnel, were moved from

railroad yards into centralized data processing offices. This

centralization resulted in the creation of a number of new

clerical positions in the Centers, and left only yardmasters

at the Railroad’s yards. As part of this centralization,

printers were placed in an additional number of yardmas-

ters’ offices. The purpose was to permit yardmasters to re-

ceive switch lists electronically from clerical employees who

entered switch list data at a Center in the same city. All

such transmissions to yardmasters’ offices were originated

and received in the same city. In virtually every case,

clerical positions which existed in yardmasters’ offices were

abolished, and new clerical positions were created in Cen-

ters for the affected clerical employees.”

In December 1975, long after yardmasters began to

tear off and separate switch lists, TCU began to submit

claims to the Railroad contending that the Railroad had

violated Rules 1 and 67 of the parties’ 1973 collective bar-

2. In addition, as a result of this centralization, in or about

1976, the Railroad also installed ‘‘telecopier’’ facsimile equip-

ment at a number of Terminal Service Centers and correspond-

ing yardmasters’ offices in the same city. Because of the unre-

liability of this facsimile equipment, its use was discontinued

after a short time. This limited use of facsimile equipment, how-

ever, is also part of the subject matter of the current dispute.

6

gaining agreement (the Agreement), by assigning to yard-

masters the task of tearing off and separating the switch

lists received on the yardmasters’ printers, incident to the

yardmasters’ other responsibilities.’

Rule 1 of the Agreement contains a description of the

scope of work to be assigned to clerks and is commonly

known as the ‘‘Scope Rule.’’ In addition, however, Rule 1

recognizes the Railroad’s right to assign various tasks to

persons other than clerks, incident to their other duties,

provided the total time devoted to such work does not ex-

ceed four (4) hours per day. These so-called ‘‘ Incidental

Work Rules’’ have been uniformly and consistently in the

Railroad’s agreements with the clerks’ collective bargaining

representatives since at least 1924. In relevant part, Rules

1 of the 1973 Agreement provides:

RULE 1

Positions and Employees Affected.

(a) These rules shall constitute an agreement be-

tween The Baltimore and Ohio Railroad Company .. .

and the Brotherhood... and shall govern the hours of

service, working conditions, and rates of pay of all em-

ployees engaged in the work of the craft or class of

clerical, office, station and storehouse employees ...

Assignment of Work.

(b) When the assignment of clerical work in an

office, station, warehouse, freight house, store house, or

yard, occurring within a spread of ten (10) hours from

3. The Railroad also received claims, at or about the same

time, contending that it had violated the same Rules by assign-

ing to non-clerical personnel the task of picking up copies of

such switch lists from baskets, after their receipt by facsimile

equipment.

oN masts, *,

the time such clerical work begins, is made to more than

one (1) employee not classified as a clerk, the total time

devoted to such work by all such employees at a facility

specified herein shall not exceed four (4) hours per

day.

* * *

(c) When a position covered by this Agreement is

abolished, the work assigned to same which remains to

be performed will be reassigned in accordance with the

following:

* = =

(2) In the event no position under this Agree-

ment exists at the location where the work of the abol-

ished position or positions is to be performed, then it

may be performed by a Yardmaster, Foreman, or other

supervisory employee, provided that less than four (4)

hours work per day of the abolished position or posi-

tions remains to be performed; and further provided

that such work is incident to the duties of a Yardmas-

ter, Foreman or other supervisory employee. |

* ” *

(4) Work incident to and directly attached to the

primary duties of another class or craft such as prep-

aration of time cards, rendering statements or reports

in connection with performance of duty, tickets col-

lected, cars carried in trains, and cars inspected or

duties of a similar character, may be performed by em-

ployees of such other craft or class.

* * *

Nothing in Rule 1 assigns the tearing off of switch lists and

the separating of multi-part paper exclusively to clerical

employees. That is the subject of this dispute.

Rule 67 of the Agreement deals generally with the use

of teletype equipment, including the tearing off and sep-

arating switch lists, as a matter of regular clerical activity,

not incident to other work. This rule now provides:

RULE 67

Printing Telegraph Machines.

Positions in telegraph or other offices requiring

the operation of printing telegraph machines or similar

devices that are used for transmitting and receiving,

either or both, information, or communications of rec-

ord, irrespective of title by which designated or charac-

ter of services performed, shall be filled by employees

coming within the scope of this Agreement.

Work in connection with the operation of transmit-

ting, reperforating and receiving units, including tear-

ing off and separating messages and reports, checking

and correction of errors, shall be performed by em-

ployees covered by this Agreement.

Employees assigned as machine or device oper-

ators in relay offices shall not be required to punch or

type longer than two (2) consecutive hours without a

period of at least twenty (20) minutes on other work

and not more than six (6) hours punching in any eight

(8) hour period. Machines or device operators shall be

allowed a short relief of ten (10) minutes in each four

(4) hour period when requested. The remainder of the

day may be assigned to other work under this Agree-

ment.

None of the foregoing applies to the handling of

train orders or Forms A or any communication with a

train dispatcher.

The Agreement also includes Rule 75, which provides,

in relevant part, that ‘‘ Previous interpretations of Rules in

this Agreement, where such Rules have been adopted un-

9

changed from previous Agreements, continue to apply un-

less in conflict with other Rules in this Agreement.’”*

4. While the historical roots and meaning of Rule 1 are

unambiguous, the origin and purpose of Rule 67 are somewhat

confusing, at least at first blush. It was this confusion, which

TCU sought to engender by injecting Rule 67 into this matter,

that sidetracked much of the proceedings before the NRAB.

Beginning in or about 1928, the Railroad entered into

a series of agreements with the Order of Railroad Telegraphers

(Telegraphers). Since the late 1930’s, the Railroad has used

printing teletype machines. Work on such machines was gen-

erally performed by Telegraphers. In 1945, the Railroad entered

into a Memorandum of Understanding with the Telegraphers

concerning the use of teletype machines.

At the same time as the Railroad signed this Memoran-

dum of Understanding, the Railroad began to install teletype ma-

chines in some sales and yard offices, where non-telegraphers

were employed. To ensure that no uncertainty would exist con-

cerning application of the Memorandum of Understanding, in

1947, the Railroad and the Telegraphers executed a document

interpreting the Memorandum.

The Telegraphers’ agreement was reprinted in 1948, and

the terms of the 1945 Memorandum of Understanding, together

with the 1947 Interpretation, were included in the new agree

ment. At that time, clerical employees were covered by a sepa-

rate collective bargaining agreement which contained no provi-

sion relating to handling of teletype transmissions.

Since 1948, the Railroad has had a consistent practice

ot allowing non-telegraphers to operate teletypes in the limited

way that is the subject of this case.

As a result of increased mechanization, by 1955 the Rail-

road began negotiations with the Telegraphers to allow non-

telegraphers to use teletype equipment to transmit train consist

information and other reports from terminals located in one city

to terminals located in other cities. In 1955, the Railroad and the

Telegraphers reached an agreement, covering the use of teletype

machines which appeared in a new collective bargaining agree-

ment. The relevant provisions of the 1945 Memorandum of Un-

derstanding remained unaffected by the newly adopted proce-

dures, and remained in effect throughout the Railroad, without

change, until 1973.

(Continued on following page)

10

The claims requested compensation, on behalf of cler-

ical employees who were already working in the Railroad’s

Terminal Service Centers. Many of the claims submitted by

TCU acknowledged that the work sought by the clerks was

‘‘formally [sic] assigned to abolished positions,’’ making

the provisions of Rule 1 expressly applicable to those

claims. Each of the claims submitted by TCU was denied by

the Railroad and was handled in the usual manner, in ac-

cordance with 45 U.S.C. § 153 First (i). Because no adjust-

ment of these disputes could be achieved in this manner,

TCU petitioned the Third Division of the National Rail-

road Adjustment Board for review.

The first claim actually filed by TCU was the claim of

one D.A. Emmerich, a eiciical employee at the Railroad’s

Cincinnati Terminal who worked, together with a yardmas-

ter, in a yardmaster’s office. Unlike other claimants, Em-

&

(Continued from previous page)

In 1971, the Railroad began to replace some of its old

teletype machines with newer models. As a result of the Tele-

graphers’ 1971 merger with BRAC, on the railroad industry

reached a National Mediation Agreement, which allowed the

Railroad to combine the clerks’ and telegraphers’ seniority ros-

ters, and which permitted BRAC and the Telegraphers to select

provisions from their separate: agreements, without change in

substance, and include those provisions in a single combined

agreement. The railroads had no say in which provisions were

selected.

By 1973, BRAC combined two agreements with the

Railroad. The new agreement, like the previous Telegraphers’

agreements, generally assigned to persons covered by the agree-

ment work involving the use of teletype equipment, in Rule 67.

However, like the previous clerks’ agreements, the 1973 Agree-

ment also contained Incidental Work Rules in Rule 1, which pro-

vided an exception to Rule 67, allowing the Railroad under cer-

tain circumstances to assign clerical work to persons other than

clerks, incident to the other work of such non-clerks.

11

merich worked at a yardmasters’ office at which all clerical

positions were not abolished. Hence, the provisions of Rule

1(b) and 1(c) of the Agreement were not strictly applicable

to Emmerich’s case. The Emmerich claim was decided on

July 22, 1980, by neutral referee Kasher, over the vigorous

dissent of the carrier members of the NRAB.

Referee Fishgold was appointed on April 14, 1982, to

adjudicate claims filed on behalf of the individual Appel-

lants in this case. On May 18, 1982, TCU filed claims on

behalf of two of its niembers employed at the Chicago Term-

inal. The Chicago claims were submitted to Referee Silagi

shortly after April 1, 1983.

Both l"ishgold and Silagi issued their decisions on June

28, 1984. Referee Silagi denied the Chicago claims, finding

that Rule 1(b) of the 1973 Agreement, as well as the past

practice of the Railroad and TCU, could not be ignored.

Recognizing the ‘‘difficulty on this property in having con-

trary awards in different locations on the same issue on the

same basic facts,’’ Silagi felt ‘‘obliged’’ to reach a con-

clusion different from Referee Kasher in the Emmerich

case, Award 22912, and stated:

The origin of Rule 67 may not be disregarded.

Said rule derived from the 1945 memorandum of un-

derstanding between B&O and Order of Railroad

Telegraphers as later elucidated by the 1947 interpreta-

tion. It surfaced as Article 36 in the Telegraphers’

agreement and then metamorphosed into Rule 67 in the

1973 Clerk-Telegrapher agreement. To be sure Article

36 consisted of 18 paragraphs while Rule 67 has but

4 paragraphs. Therefore Award 22912 held that the

rule was not adopted unchanged on June 4, 1973. Yet

a careful comparison of Article 36 with Rule 67 shows

that the essential parts of the former are retained

12

in the latter. As noted earlier, obsolete portions and

those parts which were in conflict with other rules

were deleted. That being the case we are compelled

to construe Rule 67 in the light of Rule 75 which en-

joins upon the parties the obligation to continue to

apply previous interpretations in existence prior to

June 4, 1973. In contract construction a reasonable in-

terpretation should prevail over one which leads to

harsh and unjust consequences, Public Law Board

No. 2895, Award No. 2 (Lieberman).

It is alleged by the Carrier, and not denied by the

Organization, that since 1948, 5-ply paper had been

used for the transmission of switch lists at both towers

in the Barr Yard and that yardmasters tore off and

separated these switch lists. It was not until subse-

quent to 1973 that claims were made that such work

belonged to clerks. Award 22912 states that had the

parties wished to preserve prior agreements they

should have done so specifically. But nothing in Rule

75 negates 25 years of an unabated, unchallenged

practice, Award 20514 (Lieberman). The parties own

conduct for a quarter of a century simply cannot be

ignored, it is the best evidence that there was no in-

tent to terminate this minimal work assignment to

yardmasters. Had they so desired they could have

easily expressed that intent. Rule 67 must be read

as modified by Rule 75.

Without abandoning its position that the Organi-

zation failed to show exclusivity of the work in ques-

tion and that past practice must be considered the

Carrier argues that the remedy of 8 hours pay is not

justified. Even the remedy of 3 hours’ pay, as

granted by Award 22912, is not warranted for tearing

off and separating 5 pieces of paper, a task which

takes but a few seconds. We agree with the Carrier.

It is impossible to harmonize organized labor’s legiti-

mate demand for an honest day’s wages for an honest

day’s work with a pay claim that has the earmarks of

13

a lottery. The record in this case does not reveal that

claimant ever performed the work in question. This

Board is not inclined to award a clerk a windfall of

8 hours pay, or even 3 hours’ compensation, for ser-

vices not performed and which are incidental to the

work of a yardmaster. Such a claim is clearly exces-

sie, Award 18804 (Franden) and should be denied on

this ground alone.

Having given careful consideration to the entire

record, the arguments and to the awards cited by the

parties, it is the opinion of this Board that the dis-

puted work comes within the exception contained in

Rule 1(b). For all the reasons stated above the claim

is denied.

In contrast to Referee Silagi, Fishgold did not men-

tion the provisions of Rule 1(b) in his decisions. Like

Silagi, Fishgold recognized the ‘‘difficulty’’ in reaching

contrary conclusions. However, Fishgold decided to rely

on the Kasher decision in Award 22912, and rejected the

_ Railroad’s arguments concerning the meaning of Rules

67 and 75. Explicitly stating that he had not disregarded

‘‘the origin of Rule 67 nor the clear intent of Rule 75,’’

Fishgold opined:

While the Board is not persuaded that merely be-

cause Article 36 had 18 paragraphs and Rule 67 only

had 4, that Article 36 was not adopted unchanged.

The Board is persuaded that, when read in conjunc-

tion with Rule 75, the failure of the parties to spe-

cifically adopt in Rule 67 the distinction between

‘‘inter-city’’ and ‘‘intra-city’’ communications evi-

5. See, Appendix at 11-12. Reaching this conclusion, Silagi

did not need to note the differences between the Cincinnati

employee, Emmerich, and the employees of the Chicago Ter-~

minal, whose claims Silagi considered.

14

denced by the 1945 Memorandum of Understanding,

undermines the Carrier’s contractual argument. While

the Board can accept that certain obsolete provisions

pertaining to Morse telegraph and restrictions which

conflicted with other rules were deleted in Rule 67

without changing the meaning of Article 36, the Board

cannot conclude that the failure to continue to identify

a specific distinction between ‘‘intra-city’’ and ‘‘inter-

city’? communications means that Rule 67 was un-

changed from Article 36.

Winally, in this regard, the Board does not accept

the Carrier’s further argument that the history and

practice since 1948 of allowing Yardmasters in the

Barr Yard to tear off and separate these switch lists

without any claims by the Clerks until after 1973, con-—

stitutes an unabated, unchallenged practice, which

Rule 75 cannot negate.

Having found that the claims are to be sustained, the

question arises as to what is the appropriate remedy.

As in Award 22912, the Organization seeks eight (8)

hours pay for work that took just a few seconds to

perform, albeit on repeated oceasions. This Beard

agrees with Referee Kasher in Award 22912 that such

a remedv is inappropriate. This Board further con-

eludes that, as in Award 22912: ‘‘A more appropriate

remedy is found in the parties’ Call Rule—Rule 8.

Under this rule Claimant(s) should be compensated

three hours since the work performed was two hours

or lees.”” .. ©

6. Rule 8 of the parties’ 1973 Agreement provides, in rele-

vant part, that “Except as provided in paragraphs (b) and (c) of

this Rule, regularly assigned employees notified or called to per-

(Continued on following page)

15

On August 14, 1984, the Railroad filed a complaint,

pursuant to the Railway Labor Act, 45 U.S.C. 4 153 First

(q) (RLA), seeking to review the six Fishgold awards.

No similar complaint was filed by TCU to review the

Silagi award. However, on September 21, 1984, TCU

answered the Railroad’s complaint and filed a counter-

claim, petitioning the District Court to enforce the awards

entered by the Fishgold panel. The Railroad answered

the counterclaim and, on March 1, 1985, moved the Court

for summary judgment. TCU filed its own motion for

summary judgment on February 21, 1985.

On September 12, 1985, an initial hearing on the cross-

motions for summary judgment was held before District

Judge J. Frederick Motz. Demonstrating great care in

exercising his jurisdiction under the RLA, Judge Motz

wrote counsel for the parties on October.8 and again on

November 18, 1985, requesting that they address in writing

certain additional questions bearing on the decision. After

counsel responded, an additiOnal hearing on the motions

was held on January 24, 1986.

Finding that the Fishgold panel had exceeded its jur-

isdiction, had rewritten the Agreement, and had contra-

vened its essence and purpose, ‘‘by simply omitting one of

(Continued from previous page)

form work not continuous with, before, or after the regular work

period or on their designated rest days other than Sundays or

specified holidays shall be allowed a minimum of three (3) hours

for two (2) hours’ work, or less, and if held on duty in excess of

two (2) hours, time and one-half will be allowed on the minute

basis.” The Rule continues to provide that “Regularly assigned

employees who have completed their work period for the day

and been released from duty, required to return for further serv-

ice, may be paid as if on continuous duty.”

16

its critical provisions’’, Judge Motz vacated the awards

entered by the Fishgold panel. In addition, Judge Motz

found that these awards were not compensatory, but puni-

tive in nature, and that, ‘‘by awarding penalty pay the

Fishgold panel was merely ‘dispensing its own brand of in-

dustrial justice’, rather than following the Agreement.

As a result, the court granted the Railroad’s motion for

summary judgment and denied TCU’s. TCU appealed to

the United States Court of Appeals for the Fourth Circuit.

The Fourth Cireuit affirmed. Fully recognizing ‘‘that

the scope of review of an NRAB decision is among the nar-

rowest known to law,’’ and that such decisions may only

be set aside under the three restricted circumstances set

forth in 45 U.S.C. § 153 First (q), the Court applied well

established principles:

That the scope of review is highly restricted, how-

ever, does not mean that courts may never set aside an

NRAB award. Awards may be set aside if they are

wholly baseless and completely without reason, Gun-

ther v. San Diego and Arizona Railway Co., 383 U.S.

257 (1965); if they are actually and indisputedly with-

out foundation in reason or fact, Brotherhood of Rail-

road Trainmen v. Central Georgia Railway Co., 415

F.2d 403 (5th Cir. 1969); or if the NRAB decision fails

to draw its essence from the collective bargaining

agreement, International Association of Machinists v.

~ So. Pac. Transp. 626 F.2d 215 (9th Cir. 1980); BRAC

v. Kansas City Terminal Ry. Co., 587 F.2d 903 (8th

Cir. 1978): Diamond v. Terminal Ry. Alabama State

Docks, 421 F.2d 228 (5th Cir. 1970).

The NRAB exceeds its jurisdiction when there is

manifest disregard of the collective bargaining agree-

ment, Ludwig Honold Mfq. Co. v. Fletcher, 405 F.2d

1123 (3rd Cir. 1969), or when an award fails to take

into account any existing common law of the particular

17 3

plant or industry, Norfolk Shipping & Dry Dock v. Lo-

cal No. 684, 671 F.2d 797 (4th Cir. 1982). A collective

bargaining agreement is more than a contract, it is a

generalized code to govern the myriad cases which the

draftsman cannot anticipate. United Steel Workers of

America v. Warrior and Gulf N. Co., 363 U.S. 574

(1960). This generalized focus does not however, per-

mit an arbitrator to rewrite the provisions of the col-

lective bargaining agreement. See, e.g., Mistletoe Ex-

press Service v. Motor Expressmens Union, 566 F.2d

692 (10th Cir. 1977) ;-W.R. Grace & Co. v. Local Union

759, 652 F.2d 1248 (5th Cir. 1981). Thus, this court

has held that where an arbitrator fails to discuss, in

his decision, critical contract terminology, which might

reasonably require the opposite result, the award can-

not be said to draw its essence from the contract.

Clinchfield Coal v. District 28, UMW. 720 F.2d 1365

(4th Cir. 1983).

In the instant case, the NRAB panel noted that

B&O had raised the Seope Rule issue but then the

panel failed to provide any discussion or enalysis of

that issne. Even a cursory reading of the relevant

sections of the Scope Rule would lead the reader to

believe that those practices which BRAC now chal-

lenges are completely proper under the collective bar-

gaining agreement. Because the NRAB panel has pro-

vided no explanation of either the Scope Rule provi-

sions at issue here, or their applicability to the instant

case, Clinchfield Coal, supra, requires that the panel’s

decision be vacated.

Because this holding conforms to the prior decisions of

this Court, and because there is no conflict between the

Fourth Cireuit’s decision in this case and the decisions of

other cireuits, TCU’s petition for a writ of certiorari

should be denied.

}

18

REASONS FOR DENYING THE WRIT

[.

Although this Court has stated that the standard of

judicial review established by the Railway Labor Act is a

narrow one, Union Pacific Railroad v. Sheehan, 439 U.S.

89, 91 (1978), it has never held that decisions of the NRAB

are beyond all judicial review, or that the federal courts

must uphold every award, no matter how egregious.’ To

the contrary, this Court has construed the ‘‘jurisdictional’’

provision of 45 U.S.C. § 153 to require that NRAB awards

be set aside if they are ‘‘wholly baseless and completely

without reason,’’ Gunther v. San Diego & Arizona E. Ry.

Co., 383 U.S. 257, 261 (1965), cited in Sheehan, supra, 439

U.S. at 93. Indeed, for a court to uphold a wholly base-

less award would raise constitutional problems under Ar-

ticle III, which guarantees the right to judicial review.

See, Northern Pipeline Const. Co. v. Marathon Pipeline

Co., 102 S.Ct. 2858 (1982).

7. Here, as in Clinchfield Coal, supra, 720 F.2d at 1370,

the Union has argued that the provisions of 45 U.S.C. § 153 fore-

close all judicial review of arbitration. Here, as in Clinchfield,

the Union’s argument “goes too far.’’ Judicial deference to ar-

bitration does not grant carte blanche approval to any decision

that an arbitrator may issue. Piggly Wiggly Operators’ Ware-

house, Inc. v. Piggy Wiggly Operators’ Warehouse Independent

Truck Drivers Union, Local No. 1, 611 F.2d 580, 583 (5th Cir.

1980); Int’! Ass’n of Mach. v. Haves Corp., 296 F.2d 238, 243

(5th Cir. 1961). The integrity of the NRAB arbitration process

and the public interest in having management-labor disputes re-

solved without unnecessary judicial involvement is fully pro-

tected by the limited standard of review described by this Court

in Gunther, Sheehan and similar cases, as well as the Stee/work-

ers Trilogy, upon which Clinchfield relied. See, Clinchfield, 720

F.2d at 1370.

19

The NRAB, like an arbitrator, is ‘‘confined to inter-

pretation and application of the collective bargaining

agreement; [it] does not sit to dispense [its] own brand of

industrial justice.’’ See, United Steelworkers of America

v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960) ;

United Food & Commercial Workers, Local No. 222 v. Iowa

Beef Processors, Inc., 683 F.2d 283, 285 (8th Cir. 1982).

While an arbitrator or the NRAB ‘‘may of course look for

guidance from many sources .. . his award is legitimate

only so long as it draws its essence from the collective bar-

gaining agreement. When the arbitrator’s words manifest

an infidelity to this obligation, courts have no choice but to

refuse enforcement of the award.’’ Enterprise Wheel,

supra, 363 U.S. at 597 (emphasis added).

Properly construing the ‘‘jurisdictional’’ provision

of 45 U.S.C § 153 First (q), the lower courts have re-

peatedly held, without question by this Court, that an

NRAB award may be set aside ‘‘for failure of the divi-

sion to comply with the requirements of this chapter, for

failure of the order to conform, or confine itself, to mat-

ters within the scope of the divisions jurisdiction,’’ if an

award is ‘‘actually and indisputedly without foundation

in reason or fact,’’ Bhd. of R.R. Trainmen v. Central of Ga.

Ry. Co., 415 F.2d 403, 410 (1969); or if it fails to ‘‘draw

its essence from the collective bargaining agreement.’’ /d.,

415 F.2d at 412. See, also, Int’l Ass’n of Mach. v. So. Pac.

Transp., 626 F.2d 715, 717 (9th Cir. 1980); Bhd. of Ry.

Airline & Steamship Clerks v. Kansas City Terminal Ry.

Co., 587 F.2d 903, 906 (8th Cir. 1978); Diamond v. Ter-

minal Ry. Alabama State Docks, 421 F.2d 228, 233-34 (5th

Cir. 1970); Koloedey v. Mutual Beneficial Ass’n, etc., 526

F.Supp. 1158, 1161 (D. Del. 1981); U.7.U. v. Pittsburgh

20

Charters d Y. Ry. Co., 353 F.Supp. 1305, 1306 (W.D. Pa.

1973).

The NRAB acts outside its jurisdiction when there is

‘‘manifest disregard of the agreement’’, Ludwig Honold

Mfg. Co. v. Fletcher, 405 F.2d 1123 (3rd Cir. 1969); or

when an award fails to ‘‘take into aecount any existing

common law of the particular plant or industry.’’ Norfolk

Shipbuilding & Drydock v. Local No. 684, 671 F.2d 797,

799-800 (4th Cir. 1982). Arbitrators have frequently

recognized restrictions on their own powers and have ac-

knowledged that they may not re-write the provisions of

the contract upon which the parties have agreed. See,

e.g., Schotts Bakery, Inc., 69-1 ARB { 8118, at 3397; Wil-

ner Wood Company, 69-2 ARB { 8734, at 5498 and Cham-

pion Papers, Inc., 69-1 ARB % 8341, at 4168. Similarly,

the federal courts have held that an arbitrator may not

re-write a labor contract. See, e.g., Int’l U. of Operating

Eng., Local No. 9 v. Shank-Artukovich, 751 F.2d 364, 366

(10th Cir. 1985) (if the arbitrator does not follow the ex-

press terms of the agreement, his ruling cannot stand) ;

Gen’l Drivers, Warehousemen v. Hays & Nicoulin, 594

F.2d 1093, 1094 (6th Cir. 1979) ; Detroit Coil v. Int’l Ass’n

of Mach., 594 F.2d 575, 579 (6th Cir. 1979) (an arbitrator

is without authority to disregard or modify plain and un-

ambiguous provisions of an agreement); Monongahela

Power Co. v. Local No. 2332, IBEW, 566 F.2d 1196, 1199

(4th Cir. 1976) (an arbitrator is without authority to dis-

regard or modify plain and unambiguous provisions) ;

Mistletoe Exp. Serv. v. Motor Expressmens Union, 556

F.2d 692, 695 (10th Cir. 1977) (an arbitration award will

not be upheld when it contravenes the express language

of the labor contract); Timken Co. v. Local No. 1123,

21

United Steel Wrkrs., 482 F.2d 1012, 1015 n.2 (6th Cir.

1973) (‘‘It is axiomatic that if the arbitrator undertook to,

in effect, amend the contract, to substitute his own discre-

tion for that of the parties or to dispense ‘his own brand

of industrial justice,’ the enforcement of the award must

be denied.’’) ; Textile Workers Union v. American Thread

Co., 291 F.2d 894, 899 (4th Cir. 1961).

The Union has sought to manufacture confusion from

this consistent line of federal cases, which have faithfully

applied the clear and unambiguous holdings of this Court.

While citing both Sheenan and Gunther, TCU has suggested

that this Court has not yet construed the ‘‘jurisdictional”’

provision of 45 U.S.C. § 153, and that ‘‘the court of appeals

would have been less likely to reach the result it did [in this

case]... if it had been bound by a decision of this Court

definitively construing the dispositive statutory language.’’

Petition, at 13, 18. The Union’s argument only reflects its

dissatisfaction with the result which the Fourth Cireuit did

reach in this case. As this Court held in «/unther, and re-

peated in Sheehan, and as the Fourth Cireuit recognized in

this case, the ‘‘jurisdictional’’ provision of 45 U.S.C. § 153

‘‘means just what it says.’ Jd., 439 U.S. at 93. Contrary to

TCU’s suggestions, this Court has already construed the

‘* jurisdictional’ provision of 45 U.S.C. § 153 on several oc-

casions. The lower federal courts need no further guidance

concerning its meaning.

The decision in this case did nothing more or less than

apply well recognized principles. The Fourth Cireuit ex-

plicitly recognized and applied the prior decisions of this

Court which limit the role of federal courts in reviewing

NRAB awards. Confining itself within those narrow limits,

22

the Court of Appeals nevertheless properly concluded that

these limitations upon the federal courts’ scope of review

do not mean that courts may never set aside an NRAB

award. It held that, even though a labor contract is a gen-

eralized code to govern the myriad cases which the drafts-

man cannot anticipate, this generalized foeus does not per-

mit an arbitrator to rewrite the provisions of the collective

bargaining agreement. The Fourth Circuit appropriately

concluded that, even under this Court’s most restrictive rul-

ings, awards may be set aside if they are wholly baseless

and completely without reason, if they are actually and in-

disputedly without foundation in reason or fact, or if they

fail to draw their essence from the collective bargaining

agreement. See, Petitioner’s Appendix C, at 7a-9a. In

short, the decision in this case did not conflict with the opin-

ions of this Court dealing with judicial review of NRAB

awards. Rather, that decision was in full conformity with

all of the prior holdings of this Court.

II.

The legislative history of 45 U.S.C. § 153 establishes

that Congress intended for the courts to exercise the same

authority to review NRAB decisions which apply to review

of arbitration awards. See, Central of Ga., 415 F.2d at

410-12. When considering 1966 amendments to the RLA,

8. See, also, Atchison, Topeka & Santa Fe Ry. Co. v. Buell,

107 S.Ct. 1410, 1414, — U.S. — (1987) (referring to the NRAB and

Public Law Boards as arbitration boards); Andrews v. Louisville

& Nashville Railroad Co., 406 U.S. 320, 322 (1972) (finding the

record “convincing” that provisions of the RLA “dealing with

the Adjustment Board were to be considered as compulsory

arbitration in this limited field’); and Gunther, supra, 382 U.S.

at 263 (stating that the Court has given NRAB decisions ‘the

same finality that a decision of arbitrators would have’’). In Cen-

(Continued on following page)

23

the Central of Ga. court noted, the Senate Labor and Public

Welfare Committee stated that the grounds for review of

NRAB awards ‘‘should be limited to those grounds com-

monly provided for review of arbitration awards.’’ The

(‘onmittee continued :

The committee gave consideration to a proposal

that the bill be amended to include as a ground for

setting aside an award ‘‘arbitrariness or capricious-

ness’? on the part of the Board. The committee de-

clined to adopt’such an amendment out of concern that

such a provision might be regarded as an invitation to

the courts to treat any award with which the court

disagreed as being arbitrary or capricious. This was

done on the assumption that a Federal court would

have the power to decline to enforce an award which

was actually and indisputedly without foundation in

reason or fact, and the committee intends that, under

this bill, the courts will have that power. The limited

grounds for judicial review provided in H.R. 706 are

the same grounds that are provided in section 9 of the

Railway Tabor Act and also Publie Law 88-108, which

provided arbitration for the so-called work rules dis-

pute. [1966] U.S. Code Cong. & Admin. News, p. 2287.

Central of Ga., 415 F.2d at 410.

Applying these Congressionaily mandated standards,

the courts have set aside the decisions of the NRAB or

arbitrators when an award has ignored clear and express

(Continued from previous page)

tral of Ga., supra, the court quoted the Senate Reporf concern-

ing the 1966 amendments to the RLA, as follows: ‘Also, be-

cause the National Railroad Adjustment Board has been char-

acterized as an arbitration tribunal by the courts, the grounds

for review should be limited to those grounds commonly pro-

vided for review of arbitration awards.” /d., 416 F.2d at 410.

The Senate Report thereafter quoted the three grounds for re-

view of NRAB awards set forth in 45 U.S.C. 153.

24

contractual provisions. Such awards have been set aside

most often when an arbitrator has declined to sustain an

employee’s discharge from service, when such discharge

was expressly contemplated by the applicable collective

bargaining agreement. See, e.g., Morgan Services, Inc. v.

Local 323, etc., 724 F.2d 1217, 1222-23 (6th Cir. 1984);

General Drivers, Etc. v. Haynes and Nicoulin, Inc., supra;

Mistletoe Express Service, supra, 566 F.2d at 695 (over-

turning award that disregarded clear language allowing

discharge without ‘‘progressive discipline’’ because award

violated essence of agreement). See, also, Amanda Bent

Bolt Company v. International Union, Etc., 451 F.2d 1277,

1279-80 (6th Cir. 1971); Truck Drivers and Helpers Union

v. Ulry Talbert Company, 330 F.2d 562 (8th Cir. 1964).

See, especially, Wilson v. Chicago & N.W. Transp. Co.,

728 F.2d 963, 967 (7th Cir. 1984) (NRAB exceeded its au-

thority by ignoring provisions mandating dismissal of

charges for railroad’s failure to comply with contractually

specified time limits.)

However, the issue has also arisen outside the dis-

charge area. See, e.g., Sears Roebuck Company v. Team-

sters Local Union No. 243, 683 F.2d 154 (6th Cir.), cert.

denied, 103 S.Ct. 1274 (1982) (arbitrator improperly re-

wrote contract disregarding express provision giving em-

ployer right to subeontract work); Detroit Oil Company,

supra, 594 F.2d at-579-81 (disregard of contractual notice

for grievances constitutes ‘‘clear failure to draw the es-

sence of the award from the agreement’’) ; Industrial Mu-

tual Association v. Amalgamated Workers, 725 F.2d 406,

411 (6th Cir. 1984) (disregard of plain contract provision

placing liability for shortages in accounts).

cipbemenmemnimemnineenmen

25

The decision in Clinchfield Coal, upon which both the

trial court and the Fourth Circuit relied, held that where

‘‘the arbitrator fails to discuss critical contract terminol-

ogy, which terminology might reasonably require an op-

posite result, the award cannot be considered to draw its

essence from the contract.’’ Jd., 720 F.2d at 1368-69. This

holding is fully consistent with the long series of federal

cases which have held that an arbitrator may not re-write

a labor contract, and that if an arbitrator dees not follow

the express terms of the agreement, his ruling cannot

stand. See, e.g., Int’l U. of Operating Enq., Local No. 9

v. Shank-Artukovich, supra; Gen’l Drivers, Warehouse-

men v. Hays & Nicoulin, supra; Detroit Coil v. Int’l Ass’n

of Mach., supra; Monongahela Power Co. v. Local No.

2332, IBEW, supra; Mistletoe Exp. Serv. v. Motor Ez-

pressmens Union, supra; Timken Co. v. Local No. 1123,

United Steel Wrkrs., supra; Textile Workers Union v.

American Thread Co., supra.

Both the trial court and the Fourth Circuit decisions

in this case found that Referee Fishgold was made fully

aware o. the unambiguous terms of Rules 1(b) and (ec) of

the 1973 agreement, by both parties’ ex parte submissions

to the NRAB. Rule 1(b) provides a general exception to

all parts of the 1973 Agreement, applicable by the parties’

practice only at facilities where no clerk is employed. Rule

1({b) authorizes the assignment of clerical work to persons

other than clerks when, during a period of 10 hours after

any such clerical work is begun by a non-clerk, the total

amount of time devoted to clerical work by non-clerks is

less than four (4) hours. Similarly, Rule 1(c) provides a

general exception to all parts of the 1973 Agreement, ex-

26

pressly applicable when, as here, clerical positions are

abolished. Rule 1(c) authorizes the assignment of clerical

work to non-clerks, including yardmasters, where no cleri-

eal position exists at the location where the work of the

abolished clerical position is to be performed, provided the

clerical work is incident to the duties of the non-clerk and

takes less than four (4) hours per day.

The referee was well aware that the claims which he

considered were, in the Union’s words, concerned with

work which was ‘‘formally [sic] assigned to abolished posi-

tions.’’ Application of Rules 1(b) and (c) was clear since

the disputed work ‘‘took a few seconds to perform, albeit

on repeated occasions,’’ and, therefore, did not exceed

four hours per day; because the work was performed by

yardmasters incident to their duties; and since no posi-

tions covered by the 1973 Agreement exist at the locations

where the claimed work of the abolished positions was per-

formed. Nevertheless, as the trial court and the Fourth

Circuit correctly found, the Fishgold decisions failed com-

pletely to mention, let alone consider, the terms of Rules

1(b) and (c).9

9. TCU suggests that the trial court somehow ignored his

proper role and conducted a de novo review of the Fishgold de-

cisions, because the trial court sought diligently to understand the

distinction between “major’ and “minor” disputes under the

RLA. Petition, at 6. Judge Motz readily expressed his own lack

of familiarity with RLA concepts, stating ‘that is something which

| really need advice of counsel who are knowledgeable in the

area... ”. In the succeeding minutes of the hearing quoted by

TCU, however, Judge Motz clearly stated his understanding of

his “job”’—“to apply the law and | am, my mind is not—-my

mind is quite open as to what the final outcome of this case

should be.” Counsel for the Railroad clarified the distinction

(Continued on following page)

27

Notwithstanding TCU’s efforts to distinguish this

case, the Fishgold panel’s decisions are like that of the

arbitrator in Clinchfield Coal, supra, and similar cases.

In Clinchfield, as here, the union argued that, by mention-

ing an issue, without further discussing it, in his list of

questions raised by the employer, the arbitrator must have

considered the employer’s position and rejected it, al-

though his decision did not develop his reasons in detail.

Id., 720 F.2d at 1369. There, as here, the union’s argu-

ment was ‘‘wholly unsatisfactory for it would allow an

arbitrator to shield his award simply by the ruse of stat-

ing an issue without discussing it.’’ Jd. This case, like

Clinchfield Coal, is one where the arbitrator failed to dis-

cuss ‘‘critical contract terminology,’’ which would neces-

sarily lead to an opposite result, and where the arbitrator

thus rendered an award which ‘‘cannot be considered to

draw its essence from the contract.’’ 7/7.

(Continued from previous page)

between major and minor disputes under the RLA, a distinc-

tion which the court quickly grasped. Counsel for the Railroad

then engaged in argument about the appropriate standards of

review and their application in this case. Judge Motz indicated

his complete understanding of the limits of his authority, stating,

in response to counsel’s argument, that if the arbitrator had to be

cautious about “dispensing his own brand of industrial justice”,

the court had to be “even more cautious”. Judge Motz added

that “the fact that [he] think[s] its senseless is something that [he]

had better examine [his] conscience very closely to think [he’s]

just not relating [sic] the contract or overturning the arbitrator’s

decision because of what [his] view is, right or wrong.” While

those remarks may show that Judge Motz “agonized” over the

decision which he rendered, as the Union averred before the

Fourth Circuit, they also show the great care which he brought

to bear in reaching the correct result, and completely disprove

the Union’s contention that the trial court and the Fourth Cir-

cuit conducted a de novo review of the challenged Fishgold

decisions.

28

By ignoring Rules 1(b) and 1(c) the Fishgold deci-

sions did not simply commit ‘‘error’’, or contain some

‘fambiguity’’. Petition, at 11-12. Rather, by ignoring

‘‘eritical contract terminology’’, Clinchfield Coal, 720 F.2d

at 1369, the Fishgold decisions showed a ‘‘manifest disre-

gard of the agreement,’’ Ludwig Honold Mfg. Co. v.

Fletcher, 405 F.2d at 1128; effectively ‘‘attempted to alter

the existing agreement,’’ Wilson v. Chicago & N.W.

Transp. Co., 728 F.2d at 967; and failed to ‘‘draw [their] .

essence’’ from the Agreement. United Steelworkers of

Am. v. Enterprise Wheel & Car Corp., 363 U.S. at 597;

Central of Ga., 415 F.2d at 412. -As a result, as both the

trial court and the Court of Appeals correctly found that,

by ignoring Rules 1(b) and 1(c) of the parties agreement,

the Fishgold panel exceeded the authority of the NRAB

and violated the terms of the Railway Labor Act, within

the meaning of 45 U.S.C. § 153 First (q).

In sum, the decision of the Fourth Circuit in this case _

did not conflict with the decisions of other Courts of Ap-

10. Even a cursory review of Judge Motz’ decision demon-

strates that the District judge did not, as TCU contends, vacate

the Fishgold decisions on the basis that the NRAB had misinter-

preted the contract. Instead, Judge Motz’ opinion rests on the

obviously correct premise that Fishgold ignored Rule 1 and that

“by ignoring Rule 1 the panel contravened the essence and pur-

pose of the 1973 agreement.” Hence, Judge Motz properly

considered the reasons given by the referee, as well as evidence

available to assist the court in determining whether the referee’s

award drew its essence from the Agreement. Such consideration

does not violate any of the standards of review established by

Congress and the courts. To the contrary, if Judge Motz had

failed to make these determinations, he would have abdicated

his judicial responsibility, in the words of Congress, “to decline |

to enforce an award which was actually and indisputedly with-

out foundation in reason or fact .. .” [1966] U.S. Code Cong.

& Admin. News, p. 2287, quoted in Central of Ga., 415 F.2d at

410.

29

peals which have interpreted 45 U.S.C. § 153. To the con-

trary, both the decision of the trial court and the opinion

of the Fourth Cireuit were fully consistent with the deci-

sions of other courts. No conflict exists among the cir-

cuits which must be resolved by this Court. Full review

of the Union’s petition should thus be denied.

f>

a

CONCLUSION

For the foregoing reasons, the Respondent, the Balti-

more & Ohio Railroad Company, respectfully submits that

the decision of the United States Court of Appeals for the

Fourth Circuit was correct, and that the Petition of the

Transportation Communications Union for a Writ of Cer-

tiorari to review that decision should be denied.

Respectfully submitted,

H. Russeit SMovuse

D. CuristoPHER OHLY

MELNicove, KaurMan, WEINER,

Smovuse & Garsis, P.A.

36 S. Charles Street, 6th Floor

Baltimore, MD 21201

(301) 332-8500

Attorneys for Respondent

Of Counsel:

Tuomas L. SaMvuEL

Nicuo tas 8S. YovaNnovic

CSX Transportation

500 Water Street

Jacksonville, FL 32202

APPENDIX

App. 1

NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 24881

Docket Number CL-24747

THIRD DIVISION

Robert Silagi, Referee

PARTIES TO DISPUTE:

(Brotherhood of Railway, Airline and Steamship

( Clerks, Freight cuca Express and Station

( Employes

~ (Baltimore and Ohio Chicago Terminal Railroad

( Company

STATEMENT OF CLAIM:

Claim of the System Committee of the Brotherhood

(GL-9630) that:

(1) Carrier violated, and continues to violate, Clerk-

Telegrapher Agreement beginning with the claim date of

June 1, 1981, when it caused and permits employees not

covered by said Agreement to perform work and functions

in connection with the operation of printing telegraph

(teletype) machines and similar devices used for trans-

mitting and receiving communications, including tearing

off and separating message reports of cars, at Ashland

Avenue and Halsted Street Towers; two (2) locations at

Barr Yard, Chicago, Illinois and

(2) Asa result of such impropriety, Carrier shall be

required to compensate Clerk M. A. Gasper, Barr Yard,

Chicago, Lllinois, eight (8) hours pay commencing June 1,

1981, and continuing each subsequent date until the fore-

going violations of the Agreement cease, and

App. 2

(3) That Carrier shall also, because of its violative

action, compensate Clerk F. Neilson, Barr Yard, Chicago,

Illinois, eight (8) hours pay beginning June 1, 1981, and

continuing each subsequent date until Carrier ceases to

violate the Clerk-Telegrapher Agreement at Barr Yard,

Chicago, Illinois, as heretofore described.

OPINION OF BOARD: The issue presented in this dis-

pute is whether the tearing off

and separating of 5-ply message reports of cars from

teletype machines by yardmasters contravenes Rule 1—

Scope, Rule 18—Installation of Machines or Rule 67—

Printing Telegraph Machines. The relevant portions of

said rules are quoted below.

‘‘Rule 1—Positions and Employees Affected.

(a) These rules shall constitute an agreement be-

tween the Baltimore and Ohio Railroad Company, The

Baltimore and Ohio Chicago Terminal Railroad Com-

pany, and The Staten Island Railroad Corporation

and the Brotherhood of Railway, Airline and Steam-

ship Clerks, Freight Handlers, Express and Station

Employees and shall govern the hours of service,

working conditions, and rates of pay of all employees

engaged in the work of the craft or class of clerical,

office, station and storehouse employees, which shall

include all employees formerly covered by clerical

agreement effective July 1, 1921 (as revised December

15, 1969) as amended, and all employees engaged in

the work of the craft or class of Transportation-Com-

munication Employees, which shall include all em-

ployees formerly covered by the Transportation-Com-

munication Agreements: The Baltimore and Ohio

Railroad-Company effective July 1, 1928, as revised

June 16, 1960, as amended; The Baltimore and Ohio

Chicago Terminal Railroad Company effective June

,

hal ay UNM NY na le lee

App. 3

3, 1963, as amended; and The Staten Island Railroad

Corporation effective August 1, 1959, as amended.’’

‘*Rule 1(b)—Assignment of Work

When the assignment of clerical work in an office, sta-

tion, warehouse, freight house, store house, or yard,

occurring within a spread of ten (10) hours from the

time such clerical work begins, is made to more than

one (1) employee not classified as a clerk, the total

time devoted to such work by all employees at a facil-

ity specified herein shall not exceed four (4) hours

per day.’’

‘*Interpretation of Rule 1(b)

The word ‘employee’ in Rule 1(b) means one in the

employ of this Company, whether coming under the

Scope of this Agreement, another agreement, or out-

side the Scope of any agreement.’’

‘‘Rule 18—Installation of Machines.

(a) When and where new types of machines or me-

chanical devices of any kind are used for the purpose

of performing work previously handled by such ma-

chines, coming within the Scope of this Agreement,

sucuh work will be assigned to employees covered by

this Agreement.’’

‘*Rule 67—Printing Telegraph Machines.

Positions in telegraph or other offices requiring the

operating of printing telegraph machines or similar

devices that are used for transmitting and receiving

either or both, information, or communications of rec-

ord, irrespective of title by which designated or char-

acter or services performed, shall be filled by em-

ployees coming within the scope of this Agreement.

Work in connection with the operation of transmitting,

reperforating and receiving units, including tearing

off and separating messages and reports, checking and

App. 4

correction of errors, shall be performed by employees

covered by this Agreement. “a

The Organization relies heavily upon Rule 67, second

paragraph, which assigns to Clerks the work of ‘‘tearing

off and separating messages and reports’’.. Such lan-

guage is, in the Organization’s view, ‘‘explicit unambigu-

ous, certain, definite and unequivocally clear’’, consequent-

ly it demands an absolute right to insist upon compliance

with the Rule. Conflicting past practices are material and

relevant in the interpretation and application of a con-

tract only when its terms are ambiguous (Awards 21130—

Blackwell; 18287—Dorsey ; 18064—Quinn; and 14338—Per-

elson). Finally the Organization maintains that sustain-

ing Award 22912 (Kasher), a case identical with the one

at bar, is dispositive of the issue. It is, therefore, self

evident that tearing off switch lists from printing teletype

machines in Barr Yard and separating the 5-ply paper

messages is work which must be done by Clerks and none

others.

The Carrier’s argument is three-fold: (a) that the

Organization failed to sustain its burden of proving exclu-

sive right to the work in question, (b) that even if such

right exists, there is an exception under Rule 1(b), and

(c) that Award 22912 (Kasher) has no precedential value.

To better understand the arguments of the parties the

history of the dispute must be examined. A synopsis of

the history follows:

Prior to the mid-1930’s Morse key sabia operators

transmitted administrative messages on Carrier’s sister

railroad, the Baltimore and Ohio. Railroad Company

SRR oe AIRE eta A Sake

Cn ene ee

App. 5

(B&O). In the late 1930’s printing teletype machines were

installed. The operation of the machines was a completely

new assignment. In 1945 B&O and Order of Railroad

Telegraphers entered into a memorandum of understand-

ing assigning such work to telegraphers. Section 5 of said

memorandum is almost identical with the second para-

graph of Rule 67, supra. About this time the Carrier

began to install printing teletype machines in some of its

B&O yard offices where non-telegraph employees used this

equipment to transmit reports and messages. These re-

ports and messages were transmitted from Yard and Sales

offices to a relay office in the same terminal where teleg-

raphers retransmitted this information to other terminals.

At the B&O Cincinnati Terminal the Telegraphers claimed

exclusive rights to operate the teletype machines. To avoid

misunderstanding, in 1947 the parties executed an inter-

pretation of their first memorandum. The parties agreed

that:

‘‘This Memorandum of Understanding does not apply

to intra-city communication by direct key-board tele-

type machines in offices where Morse telegraph has

never been in use and the communication service prior

to the installation of teletype was being handled by

telephone or messenger.

Where intra-city communication by machines referred

to in the above Memorandum of Understanding is per-

formed by other than employees coming within the

Scope of the Telegraphers’ Agreement, the business so

handled except wheel reports, shall not be transmitted

by reperforator tape to intra-city points.’’

In 1948 the B&O Telegrapher’s Agreement was re-

printed. The 1945 memorandum of agreement and its 1947-

App. 6

interpretation appeared as Article 31 of the new agree-

ment.

In 1948 the Carrier installed printing teletype ma-

chines in the Yardmasters’ Towers in Barr Yard. Such

machines were also installed in the Barr Yard Office where

non-telegraphers used them to transmit switch lists to the

yardmasters at their towers in Barr Yard. At both towers

yardmasters tore off the switch lists from the machines in

their offices and separated the 5-ply papers. No dispute

arose between Carrier and Telegraphers nor between Car-

rier and the Organization as to the right of yardmasters

to do these tasks. At this time the telegraphers in Chicago

Terminal were covered by a different working agreement

than that governing employes on the B&O. Said agree-

ment did not contain the equivalent of Article 31. Clerical

employes on both properties were covered by the same

working agreement which contained no rule whatever deal-

ing with the handling of teletype transmissions.

In the mid-1950’s Carrier installed teletype equipment

in yard offices throughout its system. In 1955 Carrier

and Telegraphers negotiated a revision of Article 31 to

cover employes of the Carrier. The Telegraphers’ agree-

ment covering B&O employes was reprinted in 1960 with

the 1955 revision of Article 31 appearing as Article 36

which reads in pertinent part:

‘‘Printing Telegraph Machines.

(a-1) Positions in telegraph or other offices requir-

ing the operation of printing telegraph machines...

shall be filled by employees coming within the scope of

the Telegraphers’ Agreement . . . except as herein pro-

vided. In offices, other than telegraph offices, per-

sons not coming within the scope of the Telegraphers’

App. 7

Agreement may operate machines ... for transmitting

or receiving information directly to or from telegraph

offices in the same terminal. Such persons may oper-

ate such machines . . . for transmitting information

. or receiving information . .. to or from offices,

other than telegraph offices when the information is

confined to reports of the movement of cars to or ser-

vice messages concerning transmission errors, correc-

tions or modifications. . .

(e) Except as provided in paragraph a-1, work in

connection with the operation of transmitting, reper-

forating and receiving units, including tearing off and

separating messages and reports, checking and cor-

rection of errors, shall be performed by employees

covered by the Telegraphers’ Agreement. In emer-

gency cases, individuals used for such service will not

establish seniority.’’

In 1963 the agreement between Carrier and Tele-

graphers was reprinted. Article 36, above, appeared as

Article 2 with two deletions not relevant hereto. After

the 1955 agreement was extended to cover employees of

the Carrier no complaint was made by the Brotherhood in

regard to the use of yardmasters to tear off or to separate

the switch lists sent to them by personnel in the Barr Yard

office.

In 1966 Carrier installed a computer at Barr Yard

which maintained a perpetual freight car inventory of all

cars within defined limits at Chicago Terminal. Yard-

masters continued to receive switch lists from Barr Yard

office by teletype. In 1971 these machines were replaced

by Kleinschmidt Receive Only Printers and in the follow-

ing year Data Fax machines were added. Since then em-

ployes in the Barr Yard office have sent switch lists to

App. 8

yardmasters by use of the Kleinschmidt and Data Fax

machines.

In 1972, negotiations began regarding the consolida-

tion of Clerk-Telegrapher work. The eventual result of

such negotiations was the current consolidated Clerk-Tele-

ecrapher Agreement, effective June 4, 1973. Article 36 of

the former B&O Telegraphers’ agreement was incorpo-

rated into the consolidated agreement, however, deleted

therefrom were certain obsolete provisions pertaining to

Morse telegraph and restrictions which conflicted with

other rules. The revised Article 36 appeared as Rule 67,

reproduced above. In order to provide a continuum of

interpretations of the rules extracted from former con-

tracts the consolidated agreement of 1973 contains Rule 75:

‘‘This Agreement supersedes previous Collective Bar-

gaining Agreements, and interpretations thereof, be-

tween the parties, and existing Circulars, Memoranda

of Agreement and Letters of Agreement are cancelled

unless otherwise agreed between the parties. Previ-

ous interpretations to Rules in this Agreement, where

such Rules have been adopted unchanged from previ-

ous Agreements, continue to apply unless in conflict

with other Rules in this Agreement. Effective Na-

tional Agreements remain in effect unless, or until,

changed in accordance with Railway Labor Act, as

amended.”’

In 1974 Carrier began to open Terminal Service Cen-

ters at various locations throughout its system. In most

eases these new data centers consolidated yard and agency

personne! into one central point leaving only yardmasters

in the individual yards. Wherever a Terminal Service

Center was opened, Kleinschmidt Receive Only Printers

were placed in the yardmasters’ offices so that they could

App. 9

receive switch lists. At each such location yardmasters

tore off the lists and separated the copies. Thereafter

Carrier began to receive claims that such work should be

assigned to Clerks pursuant to Rule 67. Since the dispute

could not be resolved on the property, the Organization

progressed a December 1975 claim in the Cincinnati yard

office and presented it to this Board for adjudication. The

Board sustained the claim in Award 22912 (Kasher) which,

however, reduced the claim of eight hours’ pay ‘‘for work

that took just a few seconds to perform’’ to a three-hour

call. -

The Organization argues forcefully that the merger of

the Clerks’ and Telegraphers’ crafts in 1973 guaranteed to

employes covered by the joint Clerk-Telegrapher agree-

ment the exclusive right to perform all work in all offices

involving teletype machines including tearing off and sep-

arating messages. The Organization acknowledges that

hundreds of demands for eight hours’ pay based upon

claimed violations of Rule 67 were submitted and held in

abeyance pending a decision in Award 22912. The Organi-

zation asserts that Carrier bargained in bad faith when it

refused to honor Award 22912 and apply it to the pending

identical claims. The Organization attacks Carricr’s ref-

erence to former Telegraphers’ Agreements with Carrier

as outmoded for over 30 years. The Organization also

claims that the disputes as to ‘‘communication work’’ over

the years was between Clerks and Telegraphers and not

with Yardmasters, nor have Yardmasters ever contended

for such work. Moreover, the Organization points out

that although the Railroad Yardmasters of America were

named as an interested third party in the proceedings in

the claim leading to Award 22912, the Yardmasters elected

App. 10

not to participate in that case. Nor are the Yardmasters

making any claim to the disputed work in the instant case.

The Organization rejects the notion that any portion of

the operation of a teletype machine, no matter how slight,

may be splintered from the jurisdiction of the Clerks, cit-

ing Awards 1501 (Shaw) and 2282 (Fox).

The Carrier argues with equal vigor that Award 22912

must be overturned. The doctrine of stare decisis, says

the Carrier, is not absolute and should not be followed

when an award is palpably erroneous. The history of col-

lective bargaining must be given due consideration. Past

practice is an important element in disclosing how the par-

ties themselves interpreted their agreement. In any event

claimant’s demand for 8 hours’ pay is harsh and excessive.

Continuity in the interpretation of contract rules is

highly desirable. Such interpretations should not be over-

ruled without strong and compelling reasons, Public Law

Board No. 1790, Award No. 98 (Dolnick). Award 22912

involved the Cincinnati Terminal of the Carrier. Never-

theless,-there is no honest way to distinguish the decision

in this dispute from that decision. The parties are the

same, the agreement is the same and the facts virtually

identical. Certainly there will be difficulty on this prop-

erty in having contrary awards in different locations on

the same issue under the same basic facts. But it is prefer-

able in the overall interest of the parties to give the best

direction to the parties, as this Board sees it, as to how

the rule should be applied, rather than follow the precedent

set in another award, particularly as that decision is re-

cent and, therefore, could not have developed substantial

precedent, Award 22024 (Ables). With due deference to

App. 11

the distinguished referee who wrote the opinion in Award

22912 and to the members of this Board who concurred in

his views, we feel obliged to reach a different conclusion

for the following reasons:

The origin of Rule 67 may not be disregarded. Said

rule derived from the 1945 memorandum of understanding

between B&O and Order of Railroad Telegraphers as later

elucidated by the 1947 interpretation. It surfaced as Ar-

ticle 36 in the Telegraphers’ agreement and then meta-

morphosed into Rule 67 in the 1973 Clerk-Telegrapher

agreement. To be sure Article 36 consisted of 18 para-

graphs while Rule 67 has but 4 paragraphs. Therefore

Award 22912 held that the rule was not adepted unchanged

on June 4, 1973. Yet a careful comparison of Article 36

with Rule 67 shows that the essential parts of the former

are retained in the latter. As noted earlier, obsolete por-

tions and those parts which were in conflict with other

rules were deleted. That being the case we are compelled

to construe Rule 67 in the light of Rule 75 which enjoins

upon the parties the obligation to continue to apply previ-

ous interpretations in existence prior to June 4, 1973. In

contract construction a reasonable interpretation should

prevail over one which leads to harsh and unjust conse-

quences, Public Law Board No. 2895. Award No. 2 (Lieb-

erman).

It is alleged by the Carrier, and not denied by the

Organization, that since 1948, 5-ply paper had been used

for the transmission of switch lists at both towers in the

Barr Yard and that yardmasters tore off and separated

these switch lists. It was not until subsequent to 1973 that

claims were made that such work belonged to clerks.

App. 12

Award 22912 states that had the parties wished to preserve

prior agreements they should have done so specifically.

But nothing in Rule 75 negates 25=vears of an unabated,

unchallenged practice, Award 20514 (Lieberman). The

parties own conduct for a quarter of a century simply can-

not be ignored, it is the best evidence that there was no

intent to terminate this minimal work assignment to yard-

masters. Had they so desired they could have easily ex-

pressed that intent. Rule 67 must be read as modified by

Rule 75.

Without abandoning its position that the Organization

failed to show exclusivity to the work in question and that

past practice must be considered, the Carrier argues that

the remedy of 8 hours’ pay is not justified. Even the

remedy of 3 hours’ pay, as granted by Award 22912, is not

warranted for tearing off and separating 5 pieces of paper,

a task which takes but a few seconds. We agree with the

Carrier. It is impossible to harmonize organized labor’s

legitimate demand for an honest day’s wages for an honest

day’s work with a pay claim that has the earmarks of a

lottery. The record in this case does not reveal that claim-

ant ever performed the work in question. This Board is

not inclined to award a clerk a windfall of 8 hours’ pay.

or even 3 hours’ compensation, for services not performed

and which are incidental te the work of a yardmaster. Such

a claim is clearly excessive, Award 18804 (Franden) and

should be denied on this ground alone.

Having given careful consideration to the entire ree-

ord, the arguments and to the awards cited by the parties,

it is the opinion of this Board that the disputed work comes

within the exception contained in Rule 1(b). For all of

the reasons stated above the claim is denied.

eee)

App. 13

FINDINGS: The Third Division of the Adjustment Board,

upon the whole record and all the evidence,

finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved

in this dispute are respectively Carrier and Employes

within the meaning of the Railway Labor Act, as approved

June 21, 1934;

That this Division of the Adjustment Board

has jurisdiction over the dispute involved herein; and

That the Agreement was not violated.

AWARD

_ Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST: /s/ Nancy J. Dever

Nancy J. Dever - Executive Secretary

Dated at Chicago, Illinois, this 28th day of June, 1984