YARDMASTER DEPARTMENT AWARDS

AGREEMENT MUST BE APPLIED AS WRITTEN (10)
AWARD # REFEREE RAILROAD
Second Division Award 1738 Wenke New York Central
Third Division Award 6856 Carter Erie Railroad
Third Division Award 6872 Carter Chicago Burlington & Quincy
Third Division Award 10240 Gray Erie Railroad
Third Division Award 11225 Sheridan Virginian Railway
Third Division Award 13491 Dorsey Southern Pacific (T&L)
Third Division Award 16489 Perelson Southern Railway
Third Division Award 23517 Roukis Chesapeake and Ohio
Third Division Award 24891 Cohen Chesapeake and Ohio
Third Division Award 29865 Fletcher CSX (L&N)
Third Division Award 35172 Cohen BNSF
Public Law Board No. 5362, Awd. 3, Case 3 (Sickles) - (UTU/Buffalo & Pittsburgh)    
Public Law Board No. 4357, Awd. 24, Case 24 (Lieberman) (UTU/Norfolk & Western)    
Public Law Board No. 6485, Awd. 8, Case 8 (Suntrup) (UTU/BNSF)    
Public Law Board No. 6630, Awd. 1, Case 1 (Twomey) (UTU/Delaware & Hudson)    
Public Law Board No. 3906, Case 4 (McAllister) (Railroad Yardmasters of America/Houston Belt & Terminal Rwy)    
Public Law Board No. 4195, Awd. 1, Case 1 (Suntrup) (UTU/Long Island RR)    
Public Law Board No. 4195, Awd. 2., Case 2 (Suntrup) (UTU/Long Island RR)    
Public Law Board No. 3906, Case 2 (McAllister) (Railroad Yardmasters of America/Houston Belt & Terminal Rwy)    
Public Law Board No. 3726, Awd. 8, Case 8 (Marx) Railroad Yardmasters of America/Consolidated Rail Corp.    
Public Law Board No. 3833, Awd. 3, Case 3 (Suntrup) Railroad Yardmasters of America/Seaboard System RR)    
Public Law Board No. 3337, Awd. 1, Case 1 (Sickles) (Railroad Yardmasters of America/Consolidated Rail)    
Public Law Board No. 3513, Awd. 1, Case 1 (Lieberman) (Railroad Yardmasters of America/Seaboard System RR)    
Public Law Board No. 3107, Awd. 4, Case 4 (Sickles) (Railroad Yardmasters of America/Terminal RR Assoc. of St. Louis)    
Public Law Board No. 2826, Awd. 1, Case 1 (Marx) ((Railroad Yardmasters of America/The Ogden Union Ry and Depot Co.)    
Public Law Board No. 3056, Awd. 1, Case 1 (Seidenberg) ((Railroad Yardmasters of America/Baltimore & Ohio RR)    
Public Law Board No. 3055, Awd. 1, Case 1 (Seidenberg) ((Railroad Yardmasters of America/Chesapeake & Ohio)    
Public Law Board No. 3073, Awd. 3, Case 3 (Muessig) ((Railroad Yardmasters of America/The Pittsburgh & Lake Erie RR)    
Public Law Board No. 3107, Awd. 5, Case 5 (Sickles) ((Railroad Yardmasters of America/Terminal RR Assoc. of St. Louis)    

Third Division Award No. 6856 (Carter)

"It is presumed that all of the contentions and arguments of the parties are merged in the written agreement. A party is not permitted to go behind his written agreement and offer special knowledge on the intent of plain provisions. It is conclusively presumed that all such matters were considered and incorporated in or left out of the agreement to the extent that the written contract shows. The integrity of written agreements requires that they be so construed. The meaning of a written agreement must be gathered from the language used in it where it is possible to do so. The meanings of written contracts are not ambulatory and subject to undisclosed or rejected intentions of either of the parties...."

Third Division Award No. 10240 (Gray)

"We must keep in mind at all times that a party is not permitted to go beyond his written Agreement. It must be presumed that all questions of importance were considered, and incorporated in or left out of the Agreement in question. The meaning of a written Agreement must be obtained from the language used in the Agreement...."

Third Division Award No. 13491 (Dorsey)

"The Board is a statutory body of limited jurisdiction. It may only interpret and apply collective bargaining agreements negotiated and executed by the disputants. It may not insert in such agreements its sense of equity or economic and labor relations predilections. Where the parties to an agreement, or one of them, find it wanting, recourse lies in the collective bargaining procedures prescribed in the Railway Labor Act."

Third Division Award No. 11225 (Sheridan)

"It is clear and unambiguous, and if it contains deficiencies detrimental to either party, we are committed to its provisions. This Board lacks authority to vary, alter, or amend its terms."

Third Division Award No. 16489 (Perelson)

"...We are bound by the terms and provisions of the Agreement before us. We have no power or authority and we may not make new provisions, abrogate or alter existing provisions of the Agreement...."

Third Division Award No. 6872 (Carter)

"To determine the issue, we must look to the agreement made. It is presumed that all the negotiations of the parties, including their various contentions and agreements, are merged in the written agreement. Undisclosed or rejected intentions of either of the parties must give way to the agreement made as discerned from the language used...."

As quoted in Second Division Award No. 4506 (McDonald), Award No. 1738 (Wenke) of the Second Division held that:

"Under the situation existent on the carrier it may seem extremely harsh to require payment of this claim but we can only interpret and apply the provisions of the agreement the parties have entered into. We have no equity powers to relieve from a harsh situation nor is it our prerogative to rewrite the rules of an agreement by means of an award."

Third Division Award No. 24891 (Cohen)

"OPINION OF BOARD: Pursuant to notification by the Carrier, the Claimant attended a hearing on August 19, 1981 with respect to a charge concerning an injury which he sustained due to his failure to follow `Safe Job Procedure'. After the hearing was held, the Carrier determined that the evidence adduced at the hearing was insufficient to uphold a finding of guilt and exonerated the Claimant. The issue in dispute arises from the Carrier's failure to furnish a transcript of the hearing to the Claimant and his representative, as demanded by the Organization.

"Rule 21 (c) provides:

"`A transcript of the evidence developed at the hearing shall be made and the employee and his representative shall be furnished copy of such transcript.'

"The terms of Rule 21 (c) are clear, unambiguous and unqualified. By its failure or refusal to furnish a transcript of the hearing held on August 19, 1981, the Carrier has violated Rule 21 (c). That the charges were not sustained and thus no discipline imposed against the Claimant is irrelevant to the application of Rule 21 (c). The terms of the Rule are in no way modified or nullified by the outcome of the hearing.

"Nor is it relevant that the Claimant has no need for the transcript in order to file an appeal. Again, it must be underscored that Rule 21 (c) is written in clear and simple language and the obligation by the Carrier, must be honored even though there is no need for an appeal. Third Division Award No. 23843.

"Moreover, it cannot be urged that since there was no `evidence developed at the hearing' to support the charge in the instant case, there is no requirement under Rule 21 (c) to provide a transcript. Rule 21 (c) provides in relevant part that a transcript of the evidence developed at the hearing shall be made***.' Rule 21 (c) does not distinguish between `evidence developed at the hearing' in support of, or not in support of, a charge. The terms of Rule 21 (c) are unqualified.

"A final matter which must be addressed is the Carrier's contention that the `transcript is nonexistent and therefore the issue is moot.' If the stenographer's notes of the hearing exist, the Carrier is required to have them transcribed. If, for some reason, it is impossible for the Carrier to satisfy its obligation under Rule 21 (c), the issue which has been raised cannot be considered moot. Indeed, the Board is of the view that a resolution of the issue is required, if only to establish the integrity of Rule 21 (c) and to be faithful to its terms.

* * *

"Claim sustained in accordance with the Opinion."

Third Division Award No. 23517 (Roukis)

"Carrier was obligated to recall Claimant in accordance with the Agreement's unambiguous procedures and Rule 5(c) does not provide an alternate notification process for temporary work assignments. The Agreement was violated and we will sustain the claim."

Third Division Award No. 29865 (Fletcher)

"Carrier also argued that because Claimants were working a four day workweek instead of a five day workweek, four working days' notice is all that would be required in their case. The Rule does not provide for a four working day notice in cases where employees only work four days per week. If the parties had intended that only four days' notice be given in such circumstances the Rule could easily have so stated. It does not. This Board is without authority to make such amendment in its language. We can only direct that the Rule be applied as drafted. Five working days' notice means five full working days' notice. Notice in writing means notice in writing and oral advice does not start the clock ticking." (Emphasis added)

Third Division Award No. 35172 (Cohen) (ATD/BNSF)

"It is determined that this is the controlling factor in the case and that the provisions of the Agreement must be applied to Velasquez as an exempt employee. The record is insufficient to provide guidance for any other remedy, other than as set forth herein."

Public Law Board No. 5362, Awd. 3, Case 3 (Sickles) - (UTU/Buffalo & Pittsburgh)

"The simple fact that Mr. Palumbo was sick, and therefore unavailable for duty on the claim date, dictates that the claim is invalid. Whether or not the Carrier "blanked" the position in this case is irrelevant. Simply stated, if the claimant had not marked off sick, he would have been paid. He would have been paid for the claim date even if he had not worked. But because he was unavailable, he was not paid."

Public Law Board No. 4357, Awd. 24, Case 24 (Lieberman) (UTU/N&W)

"The Board is not convinced that Carrier's position has merit. On the contrary, it is quite apparent that Claimant herein was the most senior Yardmaster of the two individuals involved in this matter, and should have been awarded the position in question. While the Board does not question Carrier's right to assign an Extra Yardmaster who had seniority in another craft to a vacancy in this instance, the individual who filled the position did not have sufficient seniority. In short, this was a matter of Carrier selecting the wrong employee for the vacation vacancy. Claimant had sufficient seniority to be called for the position and was available at the time. He should have been called, and based on Carrier's actions, was deprived of the work which was rightfully his."

Public Law Board No. 6485, Awd. 8, Case 8 (Suntrup) (UTU/BNSF)

"The Carrier uses a variety of arguments stating, for example, that the Claimant only worked 16 hours in a 24 hour period and that she had 8 hours off between shifts in accordance with Rule 2 (D) (E). This is all true. But this does not lead to the conclusion that she should have been paid straight time for both shifts. Rule 2(D)(D) does not tell us anything about compensation. That is reserved for Rule 2 (A)(B). And the latter tells us that 8 hours shall constitute a day's work and that all time worked in excess of 8 hours shall be paid at the premium rate."

Public Law Board No. 6630, Awd. 1, Case 1 (Twomey) (UTU/Delaware & Hudson)

"The question 'Does the Letter of Understanding No. 1 dated March 28, 2000, 'me too' provision, provide for a 2% General Wage Increase (GWI) retroactive to January 1, 2000?' is answered in the affirmative."

Public Law Board No. 3906, Case 4 (McAllister) (RYA/HB&T)

"If the intentions of the parties can be ascertained from the plain meaning of the language itself, this intention should be given full effect without resort to parol evidence. Additionally, if a document incorporates prior oral or written understandings and the resultant language is clear and unambiguous, this language will be deemed to constitute the entire agreement, and the Board will not entertain proferred evidence which is offered to alter the agreement."

Public Law Board No. 4195, Awd. 1, Case 1 (Suntrup) (UTU/Long Island RR)

"Relief requested is for one day's pay at overtime rate. The Agreement between the parties states the following at Rule 32(h):

Monetary claims based on the failure of the Carrier to use an employee to perform work shall be invalid unless the claimant was the employee contractually entitled to perform the work and was available and qualified to do so. A monetary award based on such a claim shall not exceed the equivalent of the time actually required to perform the claimed work on a minute basis at the straight-time rate less amounts earned in any capacity in other railroad employment or outside employment."

Public Law Board No. 4195, Awd. 2, Case 2 (Suntrup) (UTU/Long Island RR)

"Rule (e) (1) is clear and unambiguous. The Claimant to this case was incumbent of the position. He wanted to work. He was not asked. As underlined in Award No. 1 of this Board, which reasoning applies equally here, a past practice may not supercede clear contract language when the latter is present, nor is such language nullified in its intent absent claims filed to dispute its meaning (See First Division 21780; Second Division 5675; Third Division 18957 inter alia).

Public Law Board No. 3906, Case 2 (McAllister) (RYA/HB&T)

"The Carrier's general contentions have merit. Notwithstanding, without developing supportive facts and circumstances in the on-the property record, they cannot serve to effectively rebut the Organization's claim. Herein, the Organization has introduced sufficient, unrebutted, probative evidence to support its claim."

Public Law Board No. 3726, Awd. 8, Case 8 (Marx) RYA/Consolidated Rail Corp.

"Cardibe acted on his own initiative to discontinue dues payments and thus failed to maintain membership. In so doing, he voluntarily passed up the opportunity to 'retain and accumulate' Yardmaster seniority. His name is thus improperly on the Yardmaster seniority issue."

Public Law Board No. 3833, Awd. 3, Case 3 (Suntrup) RYA/Seaboard System RR)

"There is sufficient evidence of record to warrant the reasonable conclusion that the Carrier was in violation of the Rules and Letter of Understanding at bar. The only issue to be resolved is whether the damages claimed are justified."

Public Law Board No. 3337, Awd. 1, Case 1 (Sickles) (RYA/Consolidated Rail)

"We do not necessarily interpret the Agreement as requiring a disqualification hearing in each and every instance, however, under the facts of this case we feel that the Employee was entitled to a disqualification hearing and accordingly we will sustain the claim until such time as he may be properly disqualified, after a contractually required hearing."

Public Law Board No. 3513, Awd. 1, Case 1 (Lieberman) (RYA/Seaboard System RR)

"The Board notes that Carrier submitted no information whatever during the handling of this matter on the property with respect to the impact of the UMWA strike on its operations. There is no question but that the elimination of the third shift job reduced the need for the relief assignment in this dispute. However, the fact that it is admitted that the relief assignment for four days was covered by the Extraboard list employees negates the position taken by the Carrier that the position of the claimant was abolished because of the emergency. If the work continued, even though on a reduced basis, there was no emergency reason established for the abolishment of the position. For the reasons indicated, therefore, the claim must be sustained."

Public Law Board No. 3107, Awd. 4, Case 4 (Sickles) (RYA/TRRA)

"The remaining question, then, is whether the claimant should have been called first rather than third.

With respect to the first employee called, this matter was considered in Case No. 5 before this Board with respect to the circumstances under which the employee was called and the obligation of the Carrier with respect to this employee. The employee did not work on the previous day, and it is the Organization's theory that, by virtue of having missed this call, that the employee should have been placed at the bottom of the rotation list. The Carrier has not denied this interpretation of the rules, and we will accept for the purpose of this Award that the person who was called first should have been placed at the bottom of the rotation list.

The person who was called second actually worked on the previous day, and it is the position of the Organization that this would place said employee at the bottom of the rotation list. The Carrier has not denied this allegation and, for the purpose of this Award, we will accept that interpretation."

Public Law Board No. 2826, Awd. 1 (Marx) (RYA/The Ogden Union Ry & Depot Co.)

"The Board can only determine that the employes of this Carrier simply are not party to the new Supplemental Agreement. It follows therefore that Rule 10 remains in full force and that the Claimant is covered thereunder."

Public Law Board No. 3056, Awd. 1, Case 1 (Seidenberg) ((RYA/B&O RR)

"The Carrier is not entitled to determine at its leisure when an applicant is a successful bidder, and to contend that an employee's seniority rights do not vest until the Carrier gets around to notifying the successful applicant, is to weaken, if not vitiate, the attributes of seniority. The Board finds that seniority is a contractual right that vests when a determination is made that the employee's seniority rights have prevailed as against other bidders."

Public Law Board No. 3055, Awd. 1, Case 1 (Seidenberg) ((RYA/C&O)

"The Board finds that, absent a clear and overt indication by the Carrier that it is not establishing a regular permanent position, an employee who was aware that the Carrier was operating the said job for two consecutive calendar days, could not know when he could avail himself of his Rule 5(e) contractual rights."

Public Law Board No. 3073, Awd. 3 (Muessig) (RYA/The Pittsburgh & Lake Erie RR)

"The Carrier blanked the Claimant's position under the provisions of Section 4 of the Holiday Rule, and by so doing, its rights became limited, as in the instant case, by the last sentence of the Rule which requires that:

If any work of such position is performed by other than the incumbent on the shift on which it is blanked, it shall be performed in accordance with existing schedule rules."

Public Law Board No. 3107, Awd. 5 (Sickles) (RYA/Terminal RR Assoc. of St. Louis)

"This Board is called upon in many instances to determine the application of an Agreement to circumstances which were not necessarily predicted at the time the Agreement was entered into. This Agreement, however, does not fit that category and must be presumed to have been agreed to in order to resolve the very issue before us."
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Last modified: April 29, 2005