Central of Georgia Ry. Co. v. UNITED TRANSP. UNION (S)

• Citation: 353 F. Supp. 293
• Decision Date: 09 January 1973
• Docket Number: Civ. A. No. 2671.
• Parties: CENTRAL OF GEORGIA RAILWAY COMPANY, Plaintiff, v. UNITED TRANSPORTATION UNION(S), an unincorporated association, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

353 F. Supp. 293

CENTRAL OF GEORGIA RAILWAY COMPANY, Plaintiff, v. UNITED TRANSPORTATION UNION(S), an unincorporated association, et al., Defendants.

Civ. A. No. 2671.

United States District Court, S. D. Georgia, Savannah Division.

January 9, 1973.

COPYRIGHT MATERIAL OMITTED

A. Martin Kent (Miller, Beckmann & Simpson), Savannah, Ga., E. Edward Bruce, Charles A. Horsky (Covington & Burling), Washington, D. C., for plaintiff.

Clarence M. Small, Jr. (Rives, Peterson, Pettus, Conway & Burge), Birmingham, Ala., A. Pratt Adams, Jr. (Adams, Adams, Brennan & Gardner), Savannah, Ga., for defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

I

LAWRENCE, Chief Judge.

Hostlers move "light" engines (that is, engines to which cars are not coupled) to and from shops, roundhouses, passenger sheds, fueling stations and other points in and near railroad yards. Hostler helpers assist and perform such incidental duties as throwing switches and giving hand signals. Switchmen throw switches, give signals to enginemen and perform other services connected with switching. Their work is on the ground, not on engines. Historically the hostler and switchmen crafts have been represented by different unions.¹

The identifiability of the respective functions is ordinarily clear. In penumbral areas, however, there is frequently uncertainty. The problem is accentuated by the fact that labor contracts and customs vary from yard to yard within a single rail system. The right to do work is governed by agreements and practices applicable to the property on which the dispute has arisen. These factors as well as the jealously-guarded divisions of labor in a complex industry is the genesis of the present litigation.

Central of Georgia Railway Company (Central) has filed a petition for review of an award made in October, 1969, by a Special Board of Adjustment organized pursuant to the Railway Labor Act as amended. 45 U.S.C. § 151 et seq. The defendants are United Transportation Union (UTU), Switchmen; a local official thereof and three individual employees who were made parties as representative of the class of "yardmen" (switchmen).

The defendant Union representing the switchmen asks full or, in the alternative, partial enforcement of the award of the Special Board sustaining the allowance of certain claims of switchmen at Savannah. See 45 U.S.C. § 153 First (q). Both sides have moved for summary judgment on the pleadings, record, depositions, answers to interrogatories, affidavits and exhibits.

The record in this case is voluminous. The depositions cover more than 200 pages and there are some 550 pages of pleadings, exhibits, labor contracts, the record before the Special Board, copies of awards in other jurisdictional disputes, correspondence and interrogatories and answers.

The claims originated in 1962 when Switchmen's Union of North America (SUNA) filed grievances against Central on behalf of three switchmen-employees. It claimed that the men were rested and ready to work in the early hours of May 1, 1962, but, despite their right to perform the work, a hostler and hostler helper (BLF&E) placed a passenger train under the passenger shed at Savannah. Numerous grievances by switchmen were subsequently filed by SUNA. The claims were declined by Central.

In 1963 the controversy over the use of hostler and hostler helpers in performing duties to which switchmen claimed contractual entitlement was submitted by SUNA to the National Railroad Adjustment Board. The claims involved work in turning passenger trains on the wye, placing passenger engines into the shop for servicing, and the carrying of light engines from Bay Street crossing to the shop yard. The latter (third) type of work did not involve passenger trains but related to light freight and yard engines operating in the yard area of Central at the Bay Street viaduct.

II

The Railway Labor Act (45 U. S.C. § 151 et seq.) created a National Railroad Adjustment Board, conferring jurisdiction upon it in disputes involving, among other crafts, engineers, firemen, hostlers, and outside hostler helpers and yard service employees. A backlog of disputes clogged the dockets of NRAB. It was eight to ten years behind in the disposition of minor claims growing out of railroad bargaining agreements. In 1966 the Act was amended so as to provide for the establishment of special adjustment boards upon written request of the representative of any craft or of any carrier in order to resolve disputes otherwise referable to NRAB. The Amendment was intended to provide an efficient alternative to processing minor disputes through the permanent Board. Brotherhood of Locomotive Engineers v. Denver & Rio Grande Western Railroad Company, D.C., 290 F.Supp. 612, 619-620, aff'd 411 F.2d 1115 (10th Cir.).

Special or "Public Law" boards consist of one representative of the carrier and one of the employees. If they are unable to agree, they "shall by mutual agreement select a neutral person to be a member of the board for the consideration and disposition of such dispute or groups of disputes." The temporary boards are empowered to make "final and binding" awards. 45 U.S.C. § 153 First (m), (p), (q) and § 153 Second.

In 1967 G. T. DuBose who at that time was SUNA's General Chairman for the yard switchmen on the Central property requested that a Special Board of Adjustment be established under the Act since the claims of employees represented by SUNA had been pending before NRAB more than twelve months. The Carrier took the position that third party participation by the hostlers was necessary. On February 4, 1968, General Chairman Billy E. Moore (SUNA) was advised by Vice President of Personnel Tolleson of Central that it objected to the form of agreement submitted as respects "possible third party disputes." He sent Mr. Moore a rough draft of a clause deemed appropriate in that respect. See p. 3 of defendant's answers to interrogatories. The draft provided that where it is determined that a third or additional party may have an interest in a dispute, it shall be given notice and opportunity to appear before the Public Law Board. SUNA seems to have disagreed as to the necessity of third party participation. It appears that there were negotiations.² The third party provision of Central's draft was not incorporated in the formal PL board agreement entered into by the parties on March 14, 1968.

As of January 1, 1969, SUNA and BLF&E were merged into a new organization called United Transportation Union. The Order of Railway Conductors & Brakemen also became part of UTU. See deposition of Charles A. Luna, President, p. 9. The merger did not affect the autonomy of the various crafts which was preserved by the merger Agreement. The Grievance Committee of SUNA which had handled labor disputes between Central and switchmen employees was merely renamed. Mr. Moore was General Chairman of the yard employees. A. B. Healan was General Chairman of the enginemen craft, including hostlers. The labor contracts between the three constituent Unions and the Carrier remained in effect. All officers and functional leaders remained the same. See letter of Billy E. Moore to Central, January 13, 1969. Exhibit E, Central.

The Agreement establishing Special Board No. 217 recited that the claims and grievances to be decided by it were attached as "A." The attachment in question is unfortunately vague. It merely listed the cases to be "withdrawn" in five docket numbers.

Jacob Seidenberg was agreed upon as "Chairman and Neutral Member" of PL Board No. 217. Dr. Seidenberg is experienced in railroad labor law.

III

The Award was handed down on October 2, 1969. It sustained all the claims of the switchmen. General Chairman Moore (Switchmen) concurred. The Carrier Member dissented. The claim was thus defined in the Award:

"Statement of Claim: `Claim is made for J. C. Beasley, Foreman, D. M. DeLoach and W. M. Anderson, Switchmen, Savannah Yard, for one day's pay at pro rata rate account of Hostler and Hostler Helper performing Switchmen's duties on May 1, 1962.

`Above named Claimants are identified as Carrier's Docket SU 9393.

`Claim is also made for all crews in the following Dockets, said Dockets being similar in nature and involving the use of Hostler and Hostler Helper in performing Switchmen's duties: Dockets SU 9394 through SU 9423, SU 9424 through SU 9453, SU 9455 through SU 9477, SU 9478 through 9490, SU 9491 through SU 9559, SU 9728 through 9817, SU 9892, SU 9895, SU 9914, SU 9915 and SU 9916.'

`Discussion: The parties stipulated at the December 2, 1968, hearing of this Board that the following listed SU Dockets would be governed by Award No. 1 of this Board. These Dockets are:

                1423     1325     1199      1294
                1341     1181     1201      1307
                1342     1183     1256      1309
                1324     1193     1257      1315
                                            1319.'"
                

Dr. Seidenberg stated at the outset of the Special Board's Award, "The gravamen of the dispute is whether Outside Hostler and Hostler Helpers are contractually entitled to handle light Passenger Engines to and from the Passenger Station at Savannah." The Neutral Member seems to have assumed that the case before the Special Board was confined to services connected with light passenger engine movements. Apparently the Chairman was not the only one who assumed that such was the only issue. General Chairman Moore representing the switchmen testified in a deposition taken after the Award that the "primary dispute by both the railroad" and "our side of the table" was "the movement of passenger engines from the shop to the passenger shed." Deposition, p. 138. "What we were primarily interested in in this claim was that it applied to the movement of these passenger trains back and forth between the shop and the passenger shed." P. 170 "The thrust of the argument . . . dealt primarily and exclusively with that issue insofar as I know." P. 164. In respect to the scope of the Award Mr. Moore...