AWARDS 69 - INDIVIDUALS CANNOT ENTER INTO SPECIAL AGREEMENT WITH CARRIER

Fourth Division Award No. 4244 (Suntrup)

"The Carrier appears to be arguing here that a unilateral agreement was made between itself and the Claimant with respect to assignment of hours on the day in question. Companies in American labor relations, by both tradition and law, cannot make agreements with individual members of collective bargaining units. This principle is so basic that it need no elaboration here (Fourth Division Award 3702)."

Fourth Division Award No. 4228 (McAllister)

"The evidence before this Board clearly demonstrates the initial transfer of Special Agent Hind was temporary (Department Personnel Order 1-82-96). Claimant was made aware of this fact and informed of the agreement reached between his Organization and the Carrier to correct the mistakes made. The Claimant's disagreement with the provisions of that understanding fails to alter the fact that, in the handling of disputes, settlements made by duly authorized representatives are dispositive. Absent express provisions to the contrary, such understandings are not subject to review as herein raised. Accordingly, we will deny the claim."

Fourth Division Award No. 3702 (Carter)

"The Carrier contends that the work at Orleans Road was offered to Claimants to perform on their rest days, and that it was explained to them that they would report for duty at the Orleans Road location and would not be allowed any expense for traveling to or from that location.

"It is well settled that a Carrier may not enter into agreements with individual employes contrary to the provisions of the collective bargaining agreement."

Fourth Division Award No. 3149 (O'Brien)

"Finally, Carrier cannot avail itself of an understanding reached by Trainmaster Johnson and Local Chairman Brooks since that understanding runs counter to the written collective bargaining agreement. That agreement provided the procedure by which McFall's position was to be filled and the Local Chairman could not alter it by reaching an understanding with Trainmaster Johnson. Article 4, Section 2 was violated and the claim will be sustained."

Fourth Division Award No. 2645 (Weston)

"The substance of the present claim is that Carrier is violating its Collective Bargaining Agreement with Petitioner by failing to make contributions to the Union Pension Plan and Welfare Plan for two non-members of the Organization.

"Petitioner has been duly designated their exclusive bargaining agent by Carrier's engineers and in that capacity has negotiated the applicable Agreement, Rules 10 and 11 of which prescribe that Carrier pay over to the District No. 2 MEBA Welfare Plan and to the District No. 2 MEBA Pension Plan a stipulated sum `each day an employee receives compensation on a position which is subject to the wages and working conditions agreed to by and between the Carrier and District No. 2, Marine Engineers Beneficial Association.' These provisions are definite and unambiguous and may not be abrogated or modified by contracts between Carrier and individual employes. In view of their clarity, there is no occasion to consider past practice and whether or not Petitioner sought to amend Rules 10 and 11.

"Carrier's assertions that the two men in question are not employes is not substantiated by the record. Both fill positions and perform work that are embraced by the Agreement and there is no question but that they are covered by its rules.

"The Petitioner has the exclusive right to represent the engineers and must exercise that power fairly and on behalf of all employes in the bargaining unit. If, as Carrier suggests, some question exists as to whether engineers who are non-Union members are being deprived of contract benefits received by other engineers, that question may be explored in an appropriate proceeding. The instant case concerns only the issue as to whether or not Carrier is required to make welfare and pension payments for all employes within the bargaining unit, whether or not they are members of the Organization; that issue must, without any question, be resolved in the affirmative."

Fourth Division Award No. 2262 (Larkin)

"The right to negotiate with the carrier rules governing the performance of the work of the yardmaster craft, including the exercise of seniority to obtain positions covered by the yardmasters' agreement, is vested solely in the organization legally authorized to represent the yardmaster craft. See Awards 430, BRT v. IHB; 495, NPTC v. BRT; 1360, SUNA v. WP; and 1531, SUNA v. SP, by this Division. See also Switchmen's Union of North America v. Southern Pac. Co., C. A. Cal. 1958, 253 F. 2d 81, certiorari denied 79 S. Ct. 29, 358 U. S. 818, 3 L. ed. 2d 60, rehearing denied 79 S. Ct. 152, 358 U. S. 896, 3 L. ed. 2d 123, and Order of Railway conductors and Brakemen v. Switchmen's Union of North America, C. A. Ga. 1959, 269 F. 2d 726, certiorari denied 80 S. Ct. 206, 361 U. S. 899, 4 L. ed. 2d 155. The controlling Agreement involved in this dispute is between the Railroad Yardmasters of North America, Inc., and the Southern Pacific Company and contentions to the contrary are invalid."

Fourth Division Award No. 1650

"It is well established that the carrier could not lawfully deal with the Brotherhood of Railroad Trainmen in connection with matters regulating the class or craft of yardmasters unless that organization was the certified collective bargaining agent for the yardmaster craft; that organization is not, however, the representative of that craft. Consequently, the manner of filling vacancies of yardmasters, being a matter addressing itself to the parties to the agreement covering yardmasters, the carrier could not lawfully enter into an agreement with an organization representing yardmen, that yardmen would be used to fill yardmaster vacancies unless such an agreement were concurred in by the designated representative of the craft of yardmaster.

"The right to negotiate with the carrier rules governing the performance of the work of the yardmaster craft, including the filling of temporary and/or day-to-day vacancies is vested solely in Railroad Yardmasters of America, the organization legally authorized to represent the yardmaster craft. See Awards 430, 495 and 1360 by this Division. Switchmen's Union of North America v. Southern Pac. Co., C. A. Cal. 1958, 253 F. 2d 81, certiorari denied 79 S. Ct. 29, 358 U. S. 818, 3 L. ed. 2d 60, rehearing denied 79 S. Ct. 152, 358 U. S. 896, 3 L. ed. 2d 123, and Order of Railway conductors and Brakemen v. Switchmen's Union of North America, C. A. Ga. 1959, 269 F. 2d 726, certiorari denied 80 S. Ct. 206, 361 U. S. 899, 4 L. ed. 2d 155."

Fourth Division Award No. 1582 (Burch)

"The manner in which the American Railway Supervisors Association has doggedly attempted to deprive Smith of most of his seniority as a foreman, smacks of violation of the Railway Labor Act. As the designated representative for collective bargaining purposes, the Association is obligated to render fair treatment to all of the Mechanical Department supervisors included in that class or craft. This obligation to protect all of the members of that group, irrespective of race, creed, color or union membership, arises from Section 2 Fourth of the Act where it states that:

"`Fourth. Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this Act.'

"Coupled with this right of the majority to represent the entire group is the obligation to represent each and every member of the group in a fair and impartial manner.

"The United States Supreme Court has upheld the rights of the minority to fair and equal representation under Section 2 Fourth of the Railway Labor Act. Most of these cases are familiar to the members of this Board, but for ready reference the following citations are made.

"In Steele v. Louisville & Nashville Railroad Co. et al., 323 U. S. 192, (December 18, 1944), the BLF&E sought and obtained an agreement which operated the detriment of colored firemen on the L&N. The negro firemen filed suit in court asking that the enforcement of the agreement be enjoined. The Supreme Court upheld their positions, speaking through Chief Justice Stone, stated at page 199:

"`But we think that Congress, in enacting the Railway Labor Act and authorizing a labor union, chosen by a majority of the craft, to represent the craft, did not intend to confer plenary power upon the union to sacrifice, for the benefit of it members, rights of the minority of the craft, without imposing on it any duty to protect the minority.'

and at pages 200-201, the Court said:

"`The labor organization chosen to be the representative of the craft or class of employees is thus chosen to represent all of its members, regardless of their union affiliations or want of them. As we have pointed out with respect to the like provision of the National Labor Relations Act in J. I. Case Co. v. Labor Board, supra, 338, "The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit . . ." The purpose of providing for a representative is to secure those benefits for those who are represented and not to deprive them or any of them of the benefits of collective bargaining for the advantage of the representative or those members of the craft who selected it.'

"Again at page 202 the Chief Justice's opinion states:

"`While the majority of the craft chooses the bargaining representative, when chosen it represents, as the Act by its terms makes plain, the craft or class, and not the majority. The fair interpretation of the statutory language is that the organization chosen to represent a craft is to represent all its members, the majority as well as the minority, and it is to act for and not against those whom it represents. It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those for whom it is exercised unless so expressed.'

"It is apparent that the American Railway Supervisors Association is acting `against those whom it represents' in prosecuting this claim solely to deprive Relief Foreman C. W. Smith of eleven years' seniority.

"The Supreme Court's opinion in the Steele case also states, as page 204:

"`While the statute does not deny to such a bargaining labor organization the right to determine eligibility to its membership, it does require the union, in collective bargaining and in making contracts with the carrier, to represent non-union or minority union members of the craft without hostile discrimination, fairly, impartially, and in good faith' (Emphasis added).

"The instant claim, prosecuted to the Fourth Division under the guise of contract interpretation, is so lacking in merit that it must be construed as an act of hostility by the American Railway Supervisors Association against Relief Foreman C. W. Smith. Surely the organization has not attempted to interpret the agreement in a fair and impartial manner.

"The Steele case was merely the forerunner of a line of decision in the U. S. Supreme Court, imposing the same obligations upon the railway labor unions to treat the minorities in good faith. The case of Tunstall v. Brotherhood of Locomotive Firemen & Enginemen et al., 323 U. S. 210, was decided the same date, December 18, 1944. It was a companion case to Steele, with a similar opinion by Chief Justice Stone. In neither of these cases did a single one of the nine Supreme Court Justices dissent.

"The same interpretation to the Railway Labor Act was set forth five years later by the U. S. Supreme Court in the case of Graham et al. v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232, in an opinion rendered November 7, 1949 by Justice Jackson. The Court said, as page 239:

"`It would serve no purpose to review at length the reasons which, in the Steele and Tunstall cases, supra, impelled us to conclude that the Railway Labor Act imposes upon the Brotherhood the duty to represent all members of the craft without discrimination and invests a racial minority of the craft with the right to enforce that duty. It suffices to say that we reiterate that such is the law." (Emphasis added).

"Again there was no dissenting opinion by any of the nine Supreme Court justices.

"A more recent case in this line of decisions is that of Brotherhood of Railroad Trainmen et al. v. Howard et al., 343 U. S. 768, an opinion by Mr. Justice Black dated June 9, 1952. Similar discriminatory practices against minority groups were indulged in by the BRT, and these practices were again held contrary to law. At page 774 the Court stated:

"`Bargaining agents who enjoy the advantages of the Railway Labor Act's provisions must execute their trust without lawless invasions of the rights of other workers.' (Emphasis added).

"Surely the Petitioner in this docket is attempting a `lawless invasion' of the seniority rights of Relief Foreman C. W. Smith, and such action merits a most severe censure by this Board, an administrative agency created to uphold the Railway Labor Act."

Fourth Division Award No. 1531

"It is well established that the carrier could not lawfully deal with the Switchmen's Union of North America in connection with matters regulating the class or craft of yardmasters unless that organization was the certified collective bargaining agent for the yardmaster craft: that organization is not, however, the representative of that craft. Consequently, the manner of filling vacancies of yardmasters, being a matter addressing itself to the parties to the agreement covering yardmasters, the carrier could not lawfully enter into an agreement with an organization representing switchmen, that switchmen would be used to fill yardmaster vacancies unless such an agreement were concurred in by the designated representative of the craft of yardmaster.

"The right to negotiate with the carrier rules governing the performance of the work of the yardmaster craft, including the filling of temporary vacancies, is vested solely in the organization legally authorized to represent the yardmaster craft. See Awards 430, 495 and 1360 by this Division. See also Switchmen's Union of North America v. Southern Pac. Co., C. A. Cal. 1958, 253 F. 2d 81, certiorari denied 79 S. Ct. 29, 358 U. S. 818, 3 L. ed. 2d 60, rehearing denied 79 S. Ct. 152, 358 U. S. 896, 3 L. ed. 2d 123, and Order of Railway conductors and Brakemen v. Switchmen's Union of North America, C. A. Ga. 1959, 269 F. 2d 726, certiorari denied 80 S. Ct. 206, 361 U. S. 899, 4 L. ed. 2d 155."

Fourth Division Award No. 1360

"Railroad Yardmasters of America is the duly authorized and accredited representative of the class and craft of yardmasters, employes of the W. P. R. R. Co., and the agreement between the W. P. R. R. Co. and R. Y. A. is controlling; the record shows that the parties thereto are in accord that the claim asserted herein is without merit, and this Division so holds."

Fourth Division Award No. 495

"The question involved in this docket must be resolved under the agreement between the carrier and the Railroad Yardmasters of America. At least since the agreement between these parties, effective December 18, 1937, seniority as yardmaster could be obtained only from date of regular assignment as yardmaster. The so-called Three-Way Agreement of June 5, 1931 did not in any manner affect the seniority standing of a yardmaster, nor did it ipso facto give seniority as a yardmaster to a yardman who had not qualified as a yardmaster. It is the general rule of contract law that a written contract merges all prior and contemporaneous agreements on the subject."

Fourth Division Award No. 430

"The carrier has shown that the arrangement complained of was properly negotiated with the organization that holds the contract and that the rules urged by the complainant organizaion (sic) are not applicable and do not support the claims.

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"The claim in this Docket involves the question of the coverage and extent of the Yardmasters' Agreement and the performance of the work of the craft or class covered thereby, viz., Yardmasters.

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"Also involved is the question of the right of the contracting parties signatory to the agreement, to reach an understanding in respect to the performance of Yardmaster work.

"The record discloses that the contracting parties reached an understanding that on a certain day of the week, because of the shutdown of a large portion of the industries served, the work of one Yardmaster absent on his assigned rest day could be absorbed by another Yardmaster then on duty. To such an understanding the Petitioner makes objection.

"Agreement between the Indiana Harbor Belt and its Yardmasters represented by the Railroad Yardmasters of North America, Inc., is controlling. Memorandum Agreement, dated August 7, 1945, between the parties to the agreement, permits a relief assignment such as the one complained of."

Third Division Award No. 4461 (Carter)

"There appears in the record a disclaimer of any right to reparations by Tregenza, the occupant of the position during the period of the claim. The Carrier insists that this operates to defeat the claim. We think not. The Organization has the authority to police the Agreement. It is authorized to correct violations and to see that the Agreement is carried out in accordance with its terms. In so doing, it acts on behalf of all the employes who are members of the Organization. Individual members are not permitted to contract with the Carrier contrary to the provisions of the collective agreement and thereby make the collective agreement nugatory. Neither can such a result be secured by indirect action. The Carrier will not be permitted to protect itself against its own violations of the Agreement by securing waivers, disclaimers, releases, or other formal documents having the effect of excusing its contract violations. Such methods, carried to the extreme, would ultimately result in the destruction of the collective Agreement. We quote with approval from Award 2602 on this point:

"`It appears, however, that no less an authority than the Supreme Court of the United States, has declared in the case of The Order of Railroad Telegraphers v. Railway Express Co. (No. 343, decided February 28, 1944) that where collective bargaining agreements exist their terms cannot be superseded or varied by special voluntary individual contracts, even though a relatively few employes are affected and these are specially and uniquely situated. The Court based its decision upon the fundamental proposition that if it were otherwise "statutes requiring collective bargaining would have little substance, for what was made collectively could be promptly unmade individually". The decision is precisely in point, clear, positive and unequivocal, and we have no other choice than to apply the law of the land, as declared by the nation's highest tribunal. The Carrier will have to find whatever solace it can in the thought that it was motivated by a generous humane impulse, for the benefit of an unfortunate employe.'"

Third Division Award No. 30020 (McAllister)

"It is evident the Claimant did not receive written notice of the abolishment of his position as required by this Rule. Although we find a violation of the Rule, there are circumstances present which cause us to deny the relief sought on behalf of the Claimant. The evidence establishes the Claimant entered into an agreement that was contradictory to the Rule. Both the Carrier and the Claimant received the benefit of this Agreement. We cannot, however, recognize the validity of such agreements when they are not made by the duly authorized representatives of the employees and the Carrier. On the other hand, we cannot allow an employee to take the benefit of such an improper agreement and then seek to enforce the rights he had waived therein."