YARDMASTER DEPARTMENT AWARDS

AWARD 131 - AGREEMENT RULES ALWAYS BEFORE BOARD

AWARD # REFEREE RAILROAD
Third Division Award 11644 Dolnick Chicago, Burlington & Quincy RR
Third Division Award 20183 Lieberman Burlington Northern RR
Fourth Division Award 2217 Coburn Union Pacific RR
Fourth Division Award 3473 McBrearty Norfolk & Western Ry
Public Law Board No. 3906, Case 3 McAllister RYA/Houston Belt Terminal

Third Division Award No. 11644 (Dolnick)

"When a claim is based upon a violation of an agreement, such as here, we are obligated to consider not only that agreement, but any others which give meaning and intent to the specific applicable rules or sections. The letters referred to are such agreements. They were written after a conference on the interpretation of the applicable agreement. Petitioner nowhere denies the substance of the interpretation set out in Carrier's letter of March 6, 1948. For all intents and purposes the letters represent an agreement between the parties on the interpretation of the Mediation Agreement of December 8, 1938. As such they must be considered by this Board even though they were not presented and considered on the property."

Fourth Division Award No. 3473 (McBrearty)

"Agreements of the parties and agreed-to interpretations thereof are proper subjects of appellate review whether or not they were cited or relied upon by the parties prior to the appeal of a claim to this Board. That is so because both parties are chargeable with full knowledge of the agreements and interpretations they have entered into. Accordingly, such agreements and interpretations are deemed to be in evidence at all stages of the progress of a claim and cannot be barred as "surprise evidence" when cited at this level of appeal. (See Fourth Division Award 2217; Third Division Awards 20183, 12075, and 11644; and First Division Awards 18467, 16962, 16072, 15851, 15709, 15254, 15230, 15042, 14716, 14707, 12469, and 5080). Accordingly, the Board will give due consideration to the Agreement, and the rule to which Carrier objects."

Third Division Award No. 20183 (Lieberman)

"With respect to the alleged impropriety of considering the contention of violation of Rule 34 (g), the record indicates that Petitioner cited Rule 2 and the entire agreement on the property. In Award 20042, involving the same parties, we said: "While the Organization cited Rule 40 on the property, the entire Agreement is before us and we may consider other Rules as they may clarify that Rule. We concur in that reasoning. It was well expressed in a number of earlier Awards including Award 18808, 19519, and 19080; we particularly reiterate the position taken in Award 11644:

'It is true that generally, matters raised for the first time on appeal to this Board may not be considered. This does not apply to Agreements and agreed interpretations of such Agreements. Both parties are charged with full knowledge of applicable rules, agreements and interpretations. These are always proper for Board consideration whether they were or were not specifically presented and discussed on the property…"

Fourth Division Award No. 2217 (Coburn)

"Petitioner's objections to the Board's consideration of the "questions and answers" agreement and Rule 10(a) as matters not raised during the progress of the claim on the property are without merit. Agreements of the parties and agreed-to interpretations thereof are proper subjects of appellate review whether or not they were cited or relied upon by the parties prior to the appeal of a claim to this Board. That is so because both parties are chargeable with full knowledge of the agreements and interpretations they have entered into. Accordingly, such agreements and interpretations are deemed to be in evidence at all stages of the progress of a claim and cannot be barred as "surprise evidence" when cited at this level of appeal. (Cf. Third Division Awards 11644 and 12075). Accordingly, the Board will give due consideration to the agreement and the rule to which Petitioner objects."

Public Law Board No. 3906, Case 3 (McAllister) (RYA/Houston Belt Terminal)

"Contrary to the Carrier's belief, the Board looks to the party advancing an explanation relating to an occurrence to offer substantial evidence in support. Once put on notice by the Organization that Yardmaster sides reported the violation, it is inadequate proof for the Carrier to attempt to discredit Sides' claim by arguing in the submission that Sides controlled the movement of the yards. Accordingly, we find the preponderance of evidence before the Board supports the Organization's claim that Car Foreman Cates performed work reserved to the Yardmasters craft by the Agreement."


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Last modified: April 29, 2005