223 F.Supp. 296 (M.D.Ga. 1962), Civ. A. 1698-1703, Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Enginemen

Docket Nº:Civ. A. 1698-1703
Citation:223 F.Supp. 296
Party Name:Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Enginemen
Case Date:July 20, 1962
Court:United States District Courts, 11th Circuit, Middle District of Georgia
 
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Page 296

223 F.Supp. 296 (M.D.Ga. 1962)

SOUTHERN RAILWAY COMPANY et al.

v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al.

Civ. A. Nos. 1698-1703, 1764-1769, 1777.

United States District Court, M.D. Georgia

July 20, 1962

Page 297

Charles J. Bloch, Ellsworth Hall, Jr., Macon, Ga., Edgar A. Neely, Jr., Atlanta, Ga., O. Winston Cameron, Meridian, Miss., Burton A. Zorn, New York City, for plaintiffs.

David L. Mincey, Macon, Ga., Milton Kramer, Washington, D.C., C.E. Gregory, Jr., Atlanta, Ga., for defendants.

BOOTLE, Chief Judge.

Findings of Fact

1. The plaintiffs are corporations which are carriers by railroad engaged in interstate commerce, are 'carriers' as defined in the Interstate Commerce Act and Railway Labor Act, and are subject to the provisions of those acts. Collectively the plaintiffs are known as the Southern Railway System.

2. The defendants are incorporated and unincorporated associations which are the duly designated and authorized collective bargaining representatives of classes of employees of the Southern Railway System and officers or members of such associations.

3. Six of these thirteen actions were commenced in this Court. The others were originally filed in United States District Courts for other districts, but on joint motion of the parties, pursuant to stipulation approved by this court, were transferred by orders of said other courts to this court. After said transfers the thirteen cases were consolidated for trial, and came on regularly for trial after the overruling of plaintiffs' motion for summary judgment.

4. The plaintiffs and the defendants have from time to time in the past, pursuant to the provisions of the Railway Labor Act, met, treated, and bargained concerning rates of pay, rules, and working conditions applicable to employees represented by the defendant labor unions.

5. On November 1, 1956 the Southern and most of the defendant labor organizations entered into an agreement which included a provision that until November 1, 1959 neither party would request any change in rates of pay, holidays, vacations, or the amount of payments for health and welfare insurance. Similar agreements were made with the remaining

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defendant labor organizations. Said 'Moratorium' provision was not only limited as above described but also specifically excepted requests concerning stabilization of employment and a number of other subjects.

6. On or about May 22, 1958 each of the defendant labor organizations served upon plaintiffs identical notices pursuant to section 6 of the Railway Labor Act, of their desire to amend existing agreements in accordance with eight proposals. The proposals were as follows:

'1. All positions within the scope of the rules and working conditions agreement between the Carrier and the Signatory Organization which were in existence on March 22, 1957 and which have been abolished or have become vacant, or the incumbents of which have been furloughed, shall immediately be restored and shall be filled in accordance with the applicable rules of said agreement. Thereafter no position within the scope of said agreement shall be abolished, or allowed to remain vacant, or the incumbent thereof be furloughed except after conference and agreement between the representative of the Carrier and the General Chairman of the Signatory Organization. '2. Notwithstanding the provisions of any agreement heretofore made, no work within the scope of the rules and working conditions agreement between the Carrier and the Signatory Organization shall under any circumstances be performed by any official, supervisory officer or employee or any other person not employed under said agreement. Supervisory employees covered by any rule of said agreement but excepted from some rules of said agreement shall perform only supervisory duties. In case of any violation of this rule the employee or employees who would have performed such work if such work had been performed without violation of this rule shall be compensated on the same basis as if he or they had performed the work. '3. No work which, if it were performed by the Carrier with its employees, would be within the scope of the rules and working conditions agreement between the Carrier and the Signatory Organization shall be performed otherwise than by the Carrier with employees employed under said agreement except pursuant to a special agreement made in each instance between the representative of the Carrier and the General Chairman of the Signatory Organization for the performance of specifically described work through an independent contractor. In case of any violation of this rule the employee or employees who would have performed such work if such work had been performed without violation of this rule shall be compensated on the same basis as if he or they had performed the work. '4. No disciplinary action of any kind shall be taken against any employee employed within the scope of the rules and working conditions agreement between the Carrier and the Signatory Organization except in accordance with the following rules:

'(a) Within five calendar days after the alleged offense the employee and the representative of the Signatory Organization will be furnished written charges specifically describing in detail the alleged offense and the time and place of its alleged commission. The employee shall be afforded a full and fair hearing on such charges within ten calendar days after charges are served or within such further time as may be agreed upon between the carrier and the employee or his representative. The employee's representative shall be entitled to participate in the hearing and in any investigation preliminary thereto or to the serving of charges together with such other persons as such representative may deem desirable for the protection of the employee's interests,

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and the employee and his representative shall be furnished with copies of the transcript of the proceedings. Such hearing, and any investigation preliminary thereto or to the serving of charges, shall be held only at the headquarters or home terminal of the employee involved.

'(b) Any penalty or discipline imposed shall be based solely on the proven facts established at the hearing with respect to the offense specified in the charges and shall not be more severe than is commensurate therewith. Any such penalty or discipline shall be subject to appeal in accordance with the rules of the rules and working conditions agreement between the Carrier and the Signatory Organization.

'(c) In no case shall a penalty be imposed more than twenty-five calendar days after the alleged offense unless such period is extended by agreement between the representative of the Carrier and the representative of the Signatory Organization.

'(d) Any employee involved in disciplinary proceedings and any employee participating in such proceedings shall be compensated by the Carrier for all time spent and expenses incurred in connection therewith. Time so compensated shall include time lost from work, time (other than that included in time lost from work) spent in attendance at such proceedings together with time spent in going to and returning from the proceedings, and all time the employee involved is held out of service pending final decision in the proceedings. Compensation for such time shall be computed under the applicable rules of the rules and working conditions agreement, considering such time as time worked. '5. Employees employed under the scope of the rules and working conditions agreement between the Carrier and the Signatory Organization shall be required to take physical examinations only under the following rules:

'(a) The employee shall be compensated by the Carrier for all time spent and expenses incurred in connection therewith. Time so compensated shall include time lost from work, time (other than that included in time lost from work) spent in attendance at such physical examination together with time spent in going to and returning from such examinations, and all time the employee is held out of service pending final determination of his physical qualifications. Compensation for such time shall be computed under the applicable rules of the rules and working conditions agreement, considering such time as time worked.

'(b) If the examiners designated by the Carrier for a physical examination find the employee disqualified for any service he would otherwise be entitled to perform under the rules and working conditions agreement the employee shall have the right to secure an independent examination by a physician or surgeon of his choice and to submit the report of such examination to the examiners who made the examination for the Carrier. If the report so submitted disagrees with the findings of the examiners designated by the Carrier and, after consideration of such report, the examiners designated by the Carrier still hold that the employee is disqualified for any service he would otherwise be entitled to perform, the physician or surgeon chosen by the employee shall join with the examiner representing the Carrier in selecting a disinterested qualified examiner to make an independent examination, including proper field tests when requested, and the findings of such independent examiner shall be final and binding. All expenses incurred by the employee in any examination provided for in this

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paragraph shall be reimbursed by the Carrier.

'(c) Nothing in this rule shall be taken to imply any right of the Carrier to require physical examination of employees not now subject to such examination. '6. All communications governing the movement of trains shall be by train order issued by a trick train dispatcher and delivered to train and engine...

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