MANUAL CONTENTS

 

History of Railroad Unions

 

United Transportation Union —Structure

            •International Level

            •Intermedicate Level

            •Local Level

 

Local Committee of Adjustment

            •Local Chairperson

 

Authority to Represent

 

UTU Constitution

 

Grievance Handling

            •Why Violations Occur and Grievances Are Filed

            •Knowledge of Schedule Agreements

            •Time Claims (5 Important Ws)

            •Gathering Information

            •Time Limits

            •How Do You Count the Days in Relationship to theTime Limit

            •Rights of Claimants Involved in ContinuingViolations

 

Past Practice

            •Past Practice Under Ambiguous Agreements

            •Past Practice in Absence of Rule

 

Doctrine of Laches

 

Practical Approach to TimeClaims and Grievance Handling

            •Factors in the First Step of Claim and GrievanceHandling

            •Summarizing Your Case at the Claim or GrievanceConference

 

How Local Chairpersons Can HelpThemselves to Better Handle Claims and Grievances

            •Claims Erroneously Stated

            •Eight Basic Steps in the Initiation and Progression ofa Time Claim in the “Usual Manner,” on the Property

1.     Presentation of claim or grievance in the first instance

2.     Get the facts clearly and comprehensively stated

3.     Claim is either allowed or rejected

4.     Appeal to the designated officer ofthe carrier

5.     Conference

6.     Appeal to the general chairperson forfurther handling

7.     Appeal to the highest carrier officer

8.     Final conference with carrier

The General Principles of FairRepresentation

The Duty of Fair Representation inGrievance Handling

Attitudes and Attributes of a Successful LocalChairperson

 

Railway Labor Act

            •Arbitration Act

            •Erdman Act

            •Newlands Act

            •Adamson Act

            •Government Seizure of the Railroads During World WarI

            •The Transportation Act

            •The Railway Labor Act

            •National Mediation Board

            •Interest Arbitration

            •Emergency Boards

            •National Railroad Adjustment Board

            •Public Law Boards

            •Proper Notice

            •Cases Withdrawn from the National Railroad AdjustmentBoard

            •Third Party Interest Jurisdictional Work Disputes

            •Craft Autonomy

            •Executive Session

            •Interpretations – Compliance – Enforcement

 

Investigations

            •Prepare! Prepare! Prepare!

            •An Investigation Is Not a Court of Law

            •Primary Purpose – Build a Record Contained in theTranscript

            •Fair and Impartial

            •Burden of Proof

 

Information About www.utu.org

 

 

 

HISTORY OFRAILROAD UNIONS

 

 

Railroad unions representing operating crafts wereorganized in the 1860s. They were formed primarily to provide life insurance tothose members who died as a result of the extremely hazardous jobs.

 

Railroademployees belonged to separate unions along craft lines. The Brotherhood ofLocomotive Engineers (BLE) originally represented engineers only. TheBrotherhood of Locomotive Firemen & Enginemen (BLF&E) representedfiremen and enginemen; the Brotherhood of Railroad Trainmen (BRT) representedtrainmen; the Order of Railway Conductors and Brakemen (ORC&B) representedconductors and brakemen, and the Switchmen’s Union of North America(SUNA) represented switchmen.

 

At thetime these organizations were formed, conditions for employees were horrible.Wages averaged $1.00 per day and 70 percent of all train crews could expectinjury within five years of service. In 1893, over 18,343 railroad workers wereinjured and 1,657 were killed. Insurance was not available to railroad workersbecause of the hazards of the job. In addition, railroad workers did not havethe following:

 

• Seniority rightsfor employees;

• DisciplineAgreements – employees were fired at the whim of officers;

• Laws requiringsafety in the railroad industry;

• The RailwayLabor Act, and

• The FederalEmployers’ Liability Act.

 

Infact, employees who attempted to form or belong to a union were fired with norecourse. Many employees were required to sign so called “yellowdog” contracts at the time of hire. These so-called agreements meantimmediate discharge to an employee who joined a union.

 

Progresswas slow and hard fought. However, in 1893, one of the first victories forunions was won with the passage of the Safety Appliance Act. Among otherthings, the Act outlawed the “old man-killer link and pin coupler.”There were other victories for the union such as, but not limited to:

 

1898:    The Erdman Act provided for mediation and voluntaryarbitration on the railroads. It made it a criminal offense for railroads todismiss employees or to discriminate against prospective employees because oftheir union membership or activity.

 

              Legalprotection of employees’ rights to membership in a labor union, a limiton the use of injunctions in labor disputes, lawful status of picketing andother union activities, and requirement of employers to bargain collectively.


1908:    Federal Employers’Liability Act passed on April 22nd.

 

1910:    Accident Reports Act passed onMay 6. A 10-hour work day and standardization of rates of pay and workingconditions were won by the Railway Brotherhoods.

 

1911:    Locomotive Inspection Act passedon Feb. 17.

 

1916:    Hours of Service Act passed on Sept. 3. The RailroadBrotherhoods won an 8-hour day.

 

1918:    Eight-hour day becomes law in Canada on Sept. 1.

 

1920:    Rail employment reached a high oftwo million workers. Control of the railroads by the government, a wartimemeasure, ceased in 1920.

 

1926:    Railway Labor Act passed May20th. It required employers, for the first time and under penalty of law, tobargain collectively and not to discriminate against their employees forjoining a union. It provided also for mediation, voluntary arbitration,fact-finding boards, cooling off periods and adjustment boards.

 

1935:    Wagner Act passed July 5th. The National LaborRelations Act of 1935 followed the example of the Railway Labor Act, andclearly established the right of all workers to organize and to elect theirrepresentative for collective bargaining.

 

1936:    Washington Job Protection Agreement, May 21.

 

Early on, it was obvious to many that a single unionrepresenting all operating employees or even all railroad employees would bemuch stronger and more effective. However, there was much resistance alongcraft lines.

 

Around 1890, Labor Leader Eugene V. Debs founded theAmerican Railway Union (ARU) as an all craft organization. The ARU, however,was destroyed by management, government collusion and the use of federal troopsduring the Pullman Strike in 1894.

 

Other unity attempts included proposed mergers between theBLFE and BLE in 1942 and 1953. Both attempts failed due to BLE’s refusalto merge.

 

In January of 1968 the presidents of the BLE, BLFE, BRT,ORCB and SUNA were invited to meet in Cleveland, Ohio, to discuss a merger. Ofthe five invited, all participated except the BLE. Presidents Charles Luna(BRT), H.E. Gilbert (BLF-E), C.F. Lane (ORCB) and N.P. Speirs (SUNA) built asolid foundation of mutual trust and understanding in their initial discussionsaimed at forming a single organization.

 

In May of 1968, each of the four unions selected a 10-mancommittee to draft a unification agreement and constitution suitable to all.The group labored five months before the agreement and constitution werebelieved to be acceptable.

One of the most important parts of the unificationagreement was “craft autonomy.” The agreement provided that eachcraft would be autonomous and that none of the crafts could interfere withanother craft’s working conditions.

 

A merger plan was submitted to every eligible member for avote. The members voted overwhelmingly for the largest union merger ever in therailroad industry.

 

The merger created a powerful new union which enjoysgreater respect in the industry and increased strength at the bargaining table.UTU’s voice is stronger among labor organizations and in government inboth national and state legislative activities.

 

Unity has boundour members into a wiser, more-stable organization. Old craft jealousiesand barriers are disappearing. Closer association developed more communication,discussion and constructive criticism to the benefit of all members.

 

The purpose ofthe UTU is to represent transportation service employees and to promote theirgeneral welfare, social, moral, intellectual, economical and politicalinterests.

 

The UTU isgoverned by a Constitution that details the laws of the union and howthey are applied. Regular conventions have been held quadrennially commencingin 1971 and every four years thereafter. Delegates from each local are electedto attend the convention and the delegates elect International officers andrevise the Constitution as deemed necessary.

 

 

UNITEDTRANSPORTATION UNION - STRUCTURE

 

 

(1) INTERNATIONAL LEVEL

 

The“International (Union)” is located in Cleveland, Ohio, and consistsprimarily of the president, assistant president, general secretary andtreasurer, national legislative director and vice presidents located throughoutthe U.S. and Canada.

 

The presidentheads all union affairs and activities, presides at conventions, supervisesofficers and employees, interprets union laws, decides all disputes andexercises general executive and administrative control of daily activities ofthe union.

 

The assistantpresident is a representative of the president and assists the president incarrying out all policies and programs of the union.

 

The generalsecretary and treasurer is the chief financial officer of the union and shallreceive and collect all monies due the union, pay all bills, countersign allchecks and drafts requiring his or her signature, and such other papers as maybe necessary in the transaction of the business.

 

The national legislative director is the chieflegislative and political officer. He or she shall devote his or her efforts tosecure the enactment, modification, or repeal of laws in accordance with thelegislative policy of the organization and handle all legislative mattersreferred to him/her by the International president.

 

The vicepresidents maintain headquarters at different locations throughout the country.They act as field agents, assisting general committees and locals at thedirection of the president.

 

(2) INTERMEDIATELEVEL

 

The general chairperson and state legislativedirector serve at the intermediate level of the union.

 

The generalchairperson heads the general committee of adjustment and handles all claims,grievances and discipline matters on a regional basis, with authority to makeand interpret contracts (consistent with Article 85 of the constitution) onwork rules and rates of pay.

 

The statelegislative director heads the legislative board in his or her state. The boardis made up of the elected legislative representative of each local. The statedirector attends sessions of the state legislature and keeps in close contactwith state lawmakers to promote political and legislative interests of themembers.

 

(3)LOCAL LEVEL

 

At the local level the primary officers include thelocal president, local secretary, local treasurer, local chairperson, and locallegislative representative. To most members these officers are the UTU. Theysee the UTU as they look at these officers. The actions or inactions of theseofficers are what the members will judge the UTU to be.

 

The localpresident acts to lead and direct the local. He presides over meetings,supervises the local’s affairs, decides disputes, appoints committees,etc.

 

The localsecretary records minutes of meetings, handles correspondence, signs and sealsdocuments. The secretary also furnishes officers with a current list ofmembers, both active and retired.

 

The localtreasurer collects dues, disburses funds, keeps accurate records and files allreports required by law. The treasurer’s job has been simplified by theuse of payroll deduction, UTU’s new direct receipts and thetreasurer’s Web application. Prior to dues being deducted from amember’s payroll check, collection was a problem.

 

Locallegislative representatives attend state legislative board meetings and workunder the direction of the state legislative director, and make proposals forlegislation to remedy any unsafe and unsanitary working conditions.

 

LOCAL COMMITTEES OF ADJUSTMENT

 

 

Each local shallelect a local committee of adjustment, consisting of a chairperson, one or morevice chairpersons and a secretary. The International president may grantdispensation for the establishment of separate local committees of adjustmentfor the members of a local working in one of the various crafts represented bythe United Transportation Union. Each local committee shall be maintained bydues and/or assessments set by the members under the jurisdiction of suchcommittee.

 

Compensation andexpenses for members of the local committee shall be determined by the membersof the local under the jurisdiction of the committee. The local chairperson,when authorized by the general chairperson to perform service in connectionwith general committee matters, shall be compensated from the general committeefund.

 

When required, it shall be the duty of the chairperson of thelocal committee of adjustment to furnish the treasurer of the local and theinterested general chairpersons the names of non-members and members who havebeen taken out of service, or who have been returned to service. Additionally,the chairperson of the local committee of adjustment will assist in furnishinginformation to the treasurer as to the names of employees working under thejurisdiction of his/her committee.

 

It shall be the duty of the vice chairperson to handlematters referred to the local committee when so directed by the chairperson.The vice chairperson of the local committee shall act as chairperson when thechairperson is unable to perform his/her duties, and in case of a permanentvacancy in the office, he/she shall act as chairperson until the office isfilled as provided in Article 57. When more than one vice chairperson iselected to a local committee of adjustment, the local committee shall designatethe vice chairperson who shall act as required by this paragraph.

 

Local committees shall not take grievances to the generalofficers of an employer, except through the general chairperson, and will notbe permitted to enter into any agreement or understanding or change anagreement or understanding unless approved and signed by the generalchairperson and the designated carrier representative.

 

LOCAL CHAIRPERSON

 

It shall be the duty of the local chairperson topromptly handle claims and grievances when presented in accordance with Article79. He/she shall be authorized to file claims and grievances including thosewhere time has not been claimed, or where claims were incorrectly filed. He/sheshall report on the handling of all claims and grievances at the next localmeeting.

 

Should the local chairperson failto satisfactorily adjust any case presented, he/she may refer it to the generalchairperson with the complete facts and history of the case, including copiesof correspondence exchanged with local carrier officials.

 

The local chairperson is the“chairperson” of the local committee of adjustment. He/she is thecornerstone of the “Union.” Upon his or her shoulders rests thegrave responsibility of enforcing the agreement, knowing his or her members,knowing management, knowing agreements, public law board awards, and federaland state laws. The job encompasses a tremendous amount of work and commonsense.

 

As localchairperson of the UTU, the chairperson is the key person in the relationshipof UTU to management, and of UTU to its members. The success or failure of thehandling of claims and grievances rests on the local chairperson’sknowledge of the agreements. You, as local chairperson, will be doing this on aday-to-day basis.

 

Without you, andothers like you, even the best agreement is meaningless. You give it life. Youmake it work. The wisest union leader, the most effective administrator, cannotbuild the union and make it function efficiently without your help. The UTUdepends on you and your fellow local chairpersons for future leadership. Dowhat you know is right. Be fair in your judgments and you will win the respectof all concerned.

 

You are to theUTU what an officer is to the company. It is your responsibility to protect therights and interests of your brother and sister union members. In order tocarry out your responsibilities, you must train yourself to be a skillful:

 

NEGOTIATOR

 

Your constituency expects you to present theirgrievances to the carrier officers. Your success as a negotiator will determineyour success as a local chairperson.

 

ORGANIZER

 

You must win the willing support of a great majorityof the group. Successful labor-management relations require an equal balance ofpower.

 

EDUCATOR

 

Your local and International have definite policiesand programs. They expect you to understand them and transmit these ideas tothe members.

 

LEADER

 

A leader getsthings done with the minimum of friction. He/she sparks the enthusiasm andenlists the cooperation of his/her fellow workers.

 

A localchairperson’s salary (if any) and all expenses of the local committeeadjustment are supported by a portion of each member’s dues. Inaccordance with Article 81 of the UTU Constitution, each local committee ofadjustment shall be maintained by dues and/or assessments set by the membersunder the jurisdiction of such committee.

 

Local chairpersons have a definite responsibility asprovided for in Article 81 of the UTU Constitution which states in pertinentparts:

 

            “Itshall be the duty of the Chairperson of the Local Committee of Adjustment topromptly handle claims and grievances when presented in accordance with Article79. He/she shall be authorized to file claims and grievances including thosewhere time has not been claimed, or where claims were incorrectly and/orimproperly filed. He/she shall report on the handling of all claims andgrievances at the next local meeting.

            “Shouldthe Local Chairperson fail to satisfactorily adjust any case presented he/shemay refer same to the General Chairperson with the complete facts and historyof the case including copies of correspondence exchanged with localofficials.”

 

Therefore, thelocal chairperson must also be a good manager of money to ensure there areadequate funds available to represent the membership.

 

Localchairpersons also hold a position on the general committee of adjustment. Onmany committees, local chairpersons elect the general chairperson.

 

It is readilyapparent the local chairperson has a huge responsibility and must be armed witha great deal of knowledge about the union, the agreements and applicable lawsin order to be effective. Without question, the local chairperson is the“cornerstone of the UTU.”

 

The two mostimportant roles of a local chairperson are: 1.) defending the contract on thelocal level, i.e., handling time claims and grievances, and 2.) preserving theright of the membership to a fair and impartial investigation.

 

 

AUTHORITYTO PRESENT

 

 

TheRailway Labor Act, as amended, provides for labor organizations to be dulydesignated and authorized to represent employees on any U.S. rail carrier orcarriers.

 

Section152. Fourth.

 

“Fourth. Organization andcollective bargaining; freedom from interference by carrier; assistance inorganizing or maintaining organization by carrier forbidden; deduction of duesfrom wages forbidden

 

            “Employeesshall have the right to organize and bargain collectively throughrepresentatives of their own choosing. The majority of any craft or class ofemployees shall have the right to determine who shall be the representative ofthe craft or class for the purposes of this chapter. No carrier, its officers,or agents shall deny or in any way question the right of its employees to join,organize, or assist in organizing the labor organization of their choice, andit shall be unlawful for any carrier to interfere in any way with theorganization of its employees, or to use the funds of the carrier inmaintaining or assisting or contributing to any labor organization, laborrepresentative, or other agency of collective bargaining, or in performing anywork therefore, or to influence or coerce employees in an effort to induce themto join or remain or not to join or remain members of any labor organization,or to deduct from the wages of employees any dues, fees, assessments, or othercontributions payable to labor organizations, or to collect or to assist in thecollection of any such dues, fees, assessments, or other contributions: Provided,That nothing in this chapter shall beconstrued to prohibit a carrier from permitting an employee, individually, orlocal representatives of employees from conferring with management duringworking hours without loss of time, or to prohibit a carrier from furnishingfree transportation to its employees while engaged in the business of a labororganization.”

 

Section152.Ninth.

 

“Ninth.Disputes as to identify of representatives; designation by Mediation Board;secret elections

 

            “Ifany dispute shall arise among a carrier’s employees as to who are the representativesof such designated and authorized in accordance with the requirements of thischapter, it shall be the duty of the Mediation Board, upon request of eitherparty to the dispute, to investigate such dispute and to certify to bothparties, in writing, within thirty days after the receipt of the invocation ofits services, the name or names of the individuals or organizations that havebeen designated and authorized to represent the employees involved in thedispute, and certify the same to the carrier. Upon receipt of suchcertification the carrier shall treat with the representative so certified asthe representative of the craft or class for the purposes of thischapter.”

 

 

UTUCONSTITUTION

 

 

TheUnited Transportation Union Constitution sets forth requirements that designatesubordinate bodies within the organization to provide representation foremployees where the United Transportation Union is the duly designated andauthorized representative. In addition, such employees grant United TransportationUnion complete authority.

Article44 of the Constitution provides: Authority To Represent

 

“Every member of the UnitedTransportation Union grants complete authority to the United TransportationUnion and any of its constituted representatives to act in said member’sbehalf for the purpose of disposing, in any manner, of any and all of saidmember’s claims, complaints, or grievances against their employer; and tosubmit such claims, complaints, or grievances for determination to any person,board, or other tribunal provided by law or otherwise as may be deemed to benecessary. The United Transportation Union shall have authority to receivenotice of hearings, or to waive hearing, and to appear for, represent, and actfor its members before any person, board, or other tribunal in connection withconsideration and determination of claims, complaints, or grievances, subjectto the right of appeal in accordance with the provisions of this Constitution,except where the member involved serves reasonable written notice on the UnitedTransportation Union to the contrary.

 

“Decisions reached disposing of orsettling claims, complaints, and grievances referred to herein shall befurnished in writing, within thirty (30) days after such decision, to the LocalChairperson and Secretary of the local submitting such claims, complaints, andgrievances.”

 

 

GRIEVANCE HANDLING

 

 

There is no more important function to our unionthan the proper handling of time claims and grievances. To successfullyprevail in the handling of claims and grievances, there must be solid facts anddata that not only explain the violation, but also contain information thatwill support the union’s position. This information can only bedeveloped by the local chairperson.

 

Many instances occur where a general chairpersonwill receive a file on a claim or grievance from the local chairperson thatlacks sufficient information and data to support the union’s position.While both the local chairperson and the general chairperson may be fully convincedan actual violation occurred, there may be an instance where sufficientinformation was not properly developed at the local level. This places thegeneral chairperson and the union in a no-win situation.

 

If thegeneral chairperson progresses the violation to arbitration without sufficientdata, he/she no doubt will receive a denial award. If the denial award onlyaffected the one claim or grievance, the situation would not be so serious.However, in most situations, a denial award could have the effect of losing animportant provision in the collective bargaining agreement. If the provisionwas part of a system agreement, it could result in an adverse effect on themembers working under the contract on the railroad. If it was a provision undera national agreement, it could have an adverse effect on our entire membershipsubject to such national agreement.

 

Why Violations Occur andGrievances Are Filed

 

Many contract violations occur as a result of anoversight or complete disregard by a local carrier officer of the provisions inthe collective bargaining agreement. But others occur because of greed of thecarrier and/or its dislike of a particular provision in a contract, especiallyif an arbitrary is involved. In these types of situations, the carrier will tryto drag out the process as long as possible for several reasons. If the carrierhas any feasible argument whatsoever in favor of its position, the longer theydrag out the dispute, the more likely the members will become discouraged andtired of submitting time claims for the violations. In the meantime, each timea member fails to file a time claim, that is money in the carrier’spocket if the carrier is eventually found to be in violation of the agreement.The carrier can also create discontent among the members toward the union fortaking so long to resolve the dispute.

 

Many membersthink the purpose of filing a time claim is simply to increase their earnings.This is not so. A grievance is filed for the purpose of enforcing thecollective bargaining agreement.

 

If one goes backinto railroad labor history, he or she will find railroad employees in the late1800s engaged in bitter struggles to obtain agreements that would prevent therailroads from acting in an arbitrary and capricious manner. The employeessought elimination of favoritism in the assignment of workers – andeventually established the seniority principle in the railroad industry.Similarly, to protect craft rights, the employees fought for and obtained ascope rule. Railroad employees of today have a responsibility to maintain these principles. Thus, when a carrierviolates the seniority or scope rules, for example, the railroad employees havean obligation to file a time claim not for the purpose of increasing take-homepay, but rather for the purpose of enforcing their rights under the contract.And the penalty should be severe enough so as to make it unprofitable for thecarrier to repeat the violation.

 

Essentially,then, the grievance is filed to enforce the contract. And enforcement of thecontract is not only for your benefit, but for the benefit of your fellow unionmembers.

 

Knowledge ofSchedule Agreements

 

It is extremely important that the local chairpersonbe knowledgeable of the collective bargaining agreements his/her membership isworking under. Carriers will often test new local chairpersons in order todetermine how knowledgeable they are concerning applicable agreements.

 

If the carrier officers find a local chairperson whodoes not fulfill his/her obligations, they will take advantage of them. Theywill intentionally violate the provisions of the agreements. The longer suchviolations occur unchallenged, the more damage is done to future attempts topolice the agreement with respect to identical or similar violations of theagreements. The carrier will build a record relative to the application orpractice of applying the agreement. Over time, the carrier will expand itsapplication to other districts on the system. When time claims or grievancesare progressed the carrier will then take a position “pastpractice” prevails.

 

The collective bargaining agreement encompasses muchmore than the printed agreement book. Many documents have application to therates of pay, rules and working conditions of the members. For example:

 

1.         Sincethe schedule agreement book was last printed, it is possible additionalMemoranda of Understanding have been entered into between the general committeeof adjustment and the carrier.

 

2.         Attimes, agreements covering certain local conditions exist. These, too, are partof the overall collective bargaining agreement.

 

3.         Nationalagreements frequently contain clauses which modify or add to the agreementscovering the system, and these clauses are also part of the contract.

 

4.         Fromtime to time disputes committees, established pursuant to national agreements,are given the responsibility to interpret these national agreements. Theirinterpretations have the same effect as an agreement.

 

5.         TheWashington Job Protection Agreement of 1936, which covers rail consolidationsnot covered by the Interstate Commerce Act, is also used to protect employeesrequired to relocate as a result of interdivisional service.

 

When discussinggrievance handling, it is important to recognize there are different types of grievances.In general terms, any complaint from the members pertaining to the rates ofpay, rules and working conditions is commonly referred to as a grievance. Anygrievance arising from application of specific provisions of the collectivebargaining agreement generally is handled through the time-claim proceduremandated by the schedule labor agreement or practice in effect on yourproperty. Complaints arising from the provisions of the law, such as the Hoursof Service Act or Interstate Commerce Act, are also grievances, but must behandled in a different method simply because their foundation lies in legalregulation, not in the collective bargaining agreement. In most cases thesetypes of grievances must be enforced by the regulatory agency having jurisdictionand remain outside the scope of the time-claim procedures and adjudicationpursuant to the Railway Labor Act.

 

There will bemany times that a member will approach the local chairperson about a contractviolation or grievance that the local chairperson does not have the answer to.Be honest with the member. Advise the member you will investigate the matterand get back to him or her with the answer. Then follow through. If youcannot find the answer to the member’s question, consult with your generalchairperson for his/her expertise. The worst thing to do is to tell the memberwhat he or she wants to hear. Be honest with the members.

The most respected local chairperson, by both themembership and the carrier, is the local chairperson who is knowledgeable ofthe agreement and handles time claims and grievances with merit and factualinformation to support them. To handle claims lacking merit or insufficientinformation sends the wrong message to the membership and carrier alike. Themembers will be given false hope thinking the claim or grievance will producesatisfactory results, when in fact, it will not. Additionally, handling claimswith no merit bogs down the system, creating unnecessary work for both thelocal chairperson and the general chairperson.

 

Time Claims (5 Important Ws)

 

As previously stated, probably the most essentialelement in the handling of a grievance is getting the facts.

 

In the handlingof time claims, the claim should contain the specific facts involved in thegrievance as well as reference to the specific rule which allegedly has beenviolated. Such facts include what actually happened, the date of theoccurrence, the yard or run involved, the engine number, train number, etc.

 

Remember the Five Ws:

 

Who is involved in the claim or grievance? Name(s) ofperson(s) involved – anyone who can furnish information concerning theclaim or grievance. (Don’t forget the supervisor or managementrepresentative who might have caused the claim or grievance.)

 

When did the claim or grievance occur? On what day andat what time did the act or omission take place which created the claim orgrievance?

 

Where did this occur? Exact location – mile-postnumber, yard, industrial track, terminal, etc.

 

Why is this a claim or grievance? What has beenviolated? Agreements? Supplement? Local agreements? Past practice? Law? Rulingsor awards? In order to have a legitimate claim or grievance, there must be aviolation of something. This “W” directs your attention to thatspecific something which has been violated.

 

What are the demands? What adjustments are necessary tocompletely correct the injustice and to place the aggrieved member in someposition he or she would have been in had the grievance not occurred?

 

It is important to remember that many people cannotclearly distinguish opinion from fact. It is important to examine all facts,and make certain they do not contain opinions.

 

In the handling of disciplinary cases, getting thefacts becomes even more important. In such cases, the aggrieved employee isfrequently emotionally involved in the grievance – and for good reason,since the employee’s job might well be at stake. But it is in theinterest of the employee the facts in the case be carefully checked. There isno substitute for thorough preparation of a case prior to investigationsinvolving the discipline of employees. Read and study You Are HerebyNotified for a closer review of how toprepare for a disciplinary hearing.

 

Gathering Information

 

The duties of alocal chairperson are awesome. The membership frequently does not understandthe burdens of the local chairperson’s duties. Many of our members are ofthe opinion it is the local chairperson, and not the member, that isresponsible for developing information on contract violations. In someinstances, it will be necessary for local chairpersons to inject themselvesinto the fact-finding process. However, this does not excuse the claimantfrom furnishing as much information as possible with regard to a claimedagreement violation. The claimant is in a much better position to know thepertinent facts involving violations in which they are personally involved.They, not the local chairperson, stand to gain monetarily should the union besuccessful in defending their claim. We must all work together.

 

Time Limits

 

The handling ofdisputes is generally governed either by time limit rules established bynational agreements, such as the time limit governing the negotiating andarbitration of interdivisional service issues, or by time limit rules establishedin individual system agreements between the parties. These time limit rulesapply not only to the period within which a grievance can be filed, but also tothe period within which a grievance can be appealed by our Union. The time limit rules also apply to the periods inwhich the carrier must respond to a union grievance. In other words, bothparties are bound by the limits established in the agreements, whether nationalor local.

 

What is the purpose of time limit rules? They areessentially designed to expedite the handling of grievances. This is based onthe idea that if there is delay in handling of grievances, the factssurrounding the grievances become blurred. The expeditious handling ofgrievances is essential for good labor relations. When it is recognized thepurpose of a grievance is to enforce both the contract and protect themembership as a whole, it then becomes quite clear why it is essential to havetime limits on grievances.

 

How Do You Count the Days inRelationship to the Time Limit?

 

At times aquestion arises as to just how one counts the days to determine whether or nottime limits have been adhered to by the parties. For example, what is daynumber one if a yard employee starts his shift on 11:00 P.M., July 1, andviolation of the agreement takes place on 1:00 A.M., July 2? Similarly, when isthe last day on which a carrier can reply – is it the date of mailing theletter or the date of receipt? To be on the safe side, both the first and last day of the time limits should becounted.

 

These aretechnical questions on time limits, and it is important, from the UTU’spoint of view, that grievances not be lost because the time limit rule has notbeen followed. The best procedure is to make absolutely certain the time limit rule is being complied with.One should avoid technicalities in handling grievances.

 

As far asconferences are concerned, the Railway Labor Act contains a specific provision.When a conference is requested by either party – union or carrier –the other party must agree to a conference and set a date within 10 days aftersuch request. The conference itself must be held within 20 days after thereceipt of the notice.

 

Rights of ClaimantsInvolved in Continuing Violations

 

All rights of aclaimant involved in alleged continuing violations of the agreement are underthis time-limit rule, fully protected by continuing to file a claim orgrievance for each occurrence (or tour ofduty). With respect to claims and grievances involving an employee held out ofservice in a discipline case, the original notice of request for reinstatementwith pay for time lost is sufficient. However, all subsequent handling of therequest for reinstatement must be in accordance with the applicable time limitsset forth in the time-limit rule on the property.

 

As previously mentioned, in order to protect theclaim or grievance within the time limit period, please keep in mind the rightof representatives of the UTU to file and prosecute claims and grievances forand on behalf of the employee they represent. We all must work together toprotect our agreements by filing and handling claims and grievances within thetime limits specified.

 

 

PAST PRACTICE

 

 

Past Practice UnderAmbiguous Agreements

 

Under labor agreements, past practice has developedas an important factor in the interpretation of these agreements.

 

Past practice orcustom is an outgrowth of the principle of interpretation by the parties. Somereferees and arbitrators do not distinguish between practice and interpretationby the parties, and use the terms interchangeably. Other referees, as the earlyawards held, pay little attention to past practice unless it was approved bythe authorized union representative. In several incidents in recentyears, carriers have successfully argued that if a local chairperson was awareof a practice and made no attempt to stop or take exception to the practice,then the local chairperson places his/her approval on the practice. Important rules have been lost as a result of alocal chairperson failing to act on a violation. Most referees will considerpast practice when faced with ambiguous agreement provisions. Weight will begiven the practice depending upon its generality, duration and mutuality.

 

Under laboragreements, management uses the prerogative of instituting practices. The unionmay not have protested the practice for a variety of reasons: the individualmember(s) were ignorant of their rights, or fearful of protesting, or thematter was never brought to the attention of the official union representative.However, if the carrier can show where the local chairperson was aware of thepractice and made no effort to stop it, then we have problems.

 

The followingwide selection of decisions illustrates the variety of weight given thecontentious principle of past practice in the interpretation of agreements:

 

“Practice,except as agreed upon, is obviously the creature of management since it alonehas power to impose it, but it may not properly exercise this power to makechanges in agreed upon or existing practice with respect to which the scheduleswere adopted, except by agreement. Of course, no amount of practice in directconflict with the written rules of operation creates a innovation of theagreement, unless shown to have been consciously acquiesced in by authority ashigh as that which agreed upon, or is authorized to agree upon modification of,the schedule.” (Award 4061) – FirstDivision, NRAB

 

“Apartfrom this, as has been repeatedly held by this Division, no amount of practicecontrary to schedule rights will justify violation thereof. The rule isfrequently invoked that operation under a contract is evidentiary of the intentof parties making it. That rule has no application here. The practice isdetermined by one party–the management–not by the action of bothparties to the contract.” (Awards 4839through 4844) First Division, NRAB

 

“Thecontention of the parties cannot be settled by the language used in this rule,and the rule is ambiguous on this point. It must be governed by theinterpretation put on this rule by the parties as evidenced by past practice atthis point.” (Award 8642) First Division,NRAB

 

“Wherethe language of an agreement is ambiguous and is therefore open to twoconstructions, it will be given the construction adopted by the parties to theagreement, and such construction cannot be changed except by mutual consent ofboth parties.” (Award 8779) First Division,NRAB

 

“Therule that confronts us is ambiguous and susceptible to two meanings, andfollowing awards of this Division, we must take in consideration theinterpretation placed upon this rule by the parties without objection for a longperiod of years. For better than twenty years this established and universallyaccepted practice on this property, covering rule and dispute, was interpretedby the parties contrary to that contended for by claimant.” (Award 9033) First Division, NRAB

“Itis a universal tenet of construction of contracts that the interpretation whichthe parties gave to the contract by their conduct will ordinarily becontrolling. This tenet of construction has not the same force in the railroadindustry as it has where the parties have equal freedom of contract. Therailroad industry is quasi-military in the sense that an employee mustgenerally obey orders of his superior and make complaints afterwards if hethinks the rules have been violated. Repeated violations cannot establish aright on the part of the carrier to continue them, nor work a modification ofthe rule. But where there is an ambiguity in the rules or, as in this case,more than ambiguity, i.e., a direct conflict, failure to complain over a periodof time has great probative value in resolving the conflict.” (Award 9217) First Division, NRAB

 

“Inany event, conceding a certain amount of ambiguity in the agreement because ofseeming conflict arising on account of the wording of the Combination ofService Rule, Article 14 and Article 26, Section 4, of the agreement, the pastpractice of 30 years of compensating firemen in the same manner as the claimantwas compensated (which practice is asserted by carrier in its submission andnot denied by employees in their rebuttal) would be controlling as to theintent of the parties.” (Award 14859)First Division, NRAB

 

“Inview of the conflict of authorities on the issue, it would seem that theinterpretation placed upon the agreement by both thereto, as evidenced by longyears of practice there under, should govern. The parties to contract know bestwhat is meant by its terms and are least likely to be mistaken as to itsintention. Each party is alert to protect its own interests and to insist onits rights. Whatever is done by them during the period of the performance ofthe contract is strong evidence of the meaning of its terms as they understoodand intended they should be.”

 

“Inthe light of these principles, it must be held that the practical constructionplaced upon the agreement by the parties thereto should govern, and that theservices described be held within the duties properly required of claimants onthe dates in question.” (Award 13688)First Division, NRAB

 

Past Practice inAbsence of Rule

 

In the absence of a rule oragreement provision, boards have consistently held that past practice isdeterminative of the rights of the carrier. This is indicated in the followingawards:

 

“The practice of havingthe conductor deliver train orders in such a case had been followed for manyyears and we look to past practice in cases of ambiguity and instances where arule is not set out in full detail.” (Award14950) First Division, NRAB

 

“Norule is cited in the applicable agreement, and no established practice appearsimplying agreement, that carrier may not handle cars of through freight on itsswitching local, to be picked up as here shown, by scheduled trains for movingon to their destination. In the absence of rule the manner of moving trafficrests in managerial discretion.” (Award 15190)First Division, NRAB

 

“Therecord shows that over a period of many years it was not unusual for a[suburban] trainman to work with more than one conductor within a day’sassignment. No rule has been cited providing that a trainman be assigned towork his entire tour of duty with only one conductor. The evidence is thatalthough attempts had been made through negotiations to secure a crew consistrule, the applicable agreement clearly does not contain such a rule. In theabsence of a rule this Division has no authority to determine the number of mento be used in a crew.” (Award 15321) FirstDivision, NRAB

 

 

DOCTRINEOF LACHES

 

 

Even where thereis no failure to comply with time limits, sometimes carriers assert theDoctrine of Laches in an attempt to defeat a claim or grievance, although thishappens very rarely. While there have been a few decisions that support theDoctrine of Laches in railroad disputes, the majority of the decisions find theDoctrine of Laches is not applicable in railroad disputes.

 

The Doctrine ofLaches is an equitable doctrine in the courts that can foreclose a request forinjunctive relief the same way statutes of limitations foreclosed requests onlegal damages. Its elements are: (1) undue delay; (2) unexplained delay; and, (3)injustice to the other party.

 

While in thecourts laches is similar to statutes of limitations, there is a substantialdifference between them. Statutes of limitations are concerned with the fact ofdelay in bringing an action within a specific time period. Laches is concernedwith the effect of delay. The mere lapse of time does not constitute laches.Laches demands more than delay. It requires a lack of diligence.

 

Laches has twobasic elements: (1) inexcusable delay in commencement of action; and, (2)prejudice or injury to the respondent as the result of the inexcusable delay.

 

A party invokinglaches must show a delay by the opposing party in asserting a right or claim,that the delay was not excusable, and that there was undue prejudice to theparty against whom the claim is asserted. For one to successfully assert thedefense of laches, it must be shown that there was a passage of time combinedwith some prejudice to the party asserting the defense of laches, becauselaches is an equitable doctrine.

 

The National Railroad Adjustment Board has onnumerous occasions held that laches is a principle of equity, and the boarddoes not have equitable powers.

For example:

 

“TheRailway Labor Act contains no provisions limiting the time within which claimsmay be filed by employees. Nor does the parties’ agreement applicable tothe instant case contain any such statute of limitation. In the absence of suchformal prescriptions, should this Board be persuaded by the facts of this caseto create one?

 

“Wethink not. Under the circumstances as above set forth, such action by us herewould amount to our writing a time limit rule for the parties. And this we arenot empowered to do. Accordingly, we found that a sustaining award is inorder.”

 

In First Division Award 19145, Referee John P. Sembower held:

 

“Somefour years elapsed between the final exchange of correspondence between theparties on the property and the filing of claimant’s ex parte submissionhere, but as we noted under similar circumstances in Award16346, Referee Carroll R. Daugherty, ‘the Railway Labor Act containsno provision limiting the time within which claims may be filed by employees.Nor does the parties’ agreement applicable to the instant case containany such statute of limitation,’ so we must consider the claim, despiteCarriers’ objection that laches has run.”

 

In Award17930, Referee Thomas C. Begley of the First Division held:

 

“The Boardfurther finds that the effective agreement does not contain a clause limitingthe time for the filing of time claims.

 

Therefore, theseclaims presented in the letter of July 11, 1947, will be allowed.”

 

In Award8362, Referee Robert F. Simmons of the First Division held:

 

“TheCarrier next states that it denied this claim on May 12, 1937, and that it wasnot again presented until barred by inaction. It is not shown that there is anytime limitation fixed by contract on the presentation of these matters; theRailway Labor Act fixes none applicable here. The Carrier does not assert thatit has been prejudiced by the failure to prosecute the claim; the facts of theclaim are agreed to jointly; the only factual question undetermined is theabove discussed of what holidays are within the understanding of the parties,and as to that the Carrier makes no contention that its records are notavailable. Under these circumstances we are unwilling to invoke laches orestoppel against the claim of the employee.”

 

In Award 12126,Referee Clifford W. Potter of the First Division held:

 

“TheEmployees here did not protest individually when the work in question wasperformed, but their duly authorized representatives had the right to raise aquestion later, when they learned of the facts and circumstances. There is nolimit for the presentation of claims growing out of alleged contract violationsin the Act.”

 

In AwardNo. 14 of Public Law Board No. 382, Referee N.H. Zumas held:

 

“Finally, with respect toCarrier’s defense of ‘laches’ the Board finds it is withoutmerit. The doctrine of ‘laches’ has its genesis in the courts ofequity and evolved as one of the many remedies created by the equitychancellors as a means of rectifying the ‘action at law’deficiencies. It was and is a unique and seldom applied concept utilized onlyin extraordinary circumstances.”

 

PRACTICAL APPROACH TO TIME CLAIMS AND GRIEVANCEHANDLING

 

The present grievance procedures in the railroadindustry are governed by the Railway Labor Act. One of the purposes of theRailway Labor Act is “to provide for the prompt and orderly settlement ofall disputes growing out of grievances or out of the interpretation orapplication of agreements concerning rates of pay, rules or workingconditions.”

 

How is thisobjective to be carried out? The law requires that “all disputes betweenthe carrier or carriers and its or their employees shall be considered and, ifpossible, decided with all expedition, in conferences between representativesdesignated and authorized so to confer, respectively, by the carrier orcarriers and by the employees thereof interested in the dispute.”

 

The law providesfurther, “the dispute between an employee or group of employees and acarrier or carriers growing out of grievances or out of the interpretation orapplication of agreements concerning rates of pay, rules or workingconditions…shall be handled in ‘the usual manner’ up to andincluding the chief operating officer of the carrier designated to handle suchdisputes…”

 

What is meant by“the usual manner”? This means simply in accordance with practicesunder the agreement on the property. It is quite clear that the Railway LaborAct sought to maintain the procedure of handling grievances on the properties,and in no way sought to bypass such procedure. In other words, the RailwayLabor Act in no way sought to impose any specific grievance procedure for theunion or the railroad system except to insist the grievance be handled in aprompt manner and in conference.

 

In the normalcourse of any grievance procedure, not all the grievances will be disposed ofsatisfactorily between the parties, and some procedure must exist to resolvesuch disputes. To meet this problem, the Railway Labor Act provides for atribunal, called the National Railroad Adjustment Board, which was designed tohandle grievance cases on appeal. In later years, an amendment was placed inthe Railway Labor Act to provide for the establishment of Public Law Boards onindividual properties.

 

It might benoted at this point, failure to abide by the grievance procedures of thecontract and failure to abide by the requirements of the Railway Labor Act withrespect to the holding of conference might provide the basis for the rejectionof a grievance by the National Railroad Adjustment Board or a Public Law Board.In this situation, it would more likely involve the general chairperson ratherthan the local chairperson; however, both should be familiar with therequirements of holding a conference. For example, suppose you have a situationwhere the general chairperson calls the carrier officer on the telephone,contending the telephone conversation is the required conference. There is verylittle chance a telephone call would hold up as a “conference.”

 

Factors in the First Stepof Claim and Grievance Handling

 

1.         KeyPerson vs. Key Person – In mostinstances, the immediate supervisor is the key person in the carrier’scollective bargaining set-up, just as you, the local chairperson, are the keyperson in the UTU set up.

 

2.         Company Policy – The division carrier representative is in adifficult middle position, between employees and top management. Most cannotdecide company policy; orders come down to them from top officials, and whetherthey agree with them or not, their job is to see that they are carried out.

 

3.         Carrier’sArea of Decision – There is a smallarea of decision where the division carrier officer does interpret policy, and itis in this area that the UTU can gain by establishing a cooperativerelationship.

 

            4.         WorkingRelationship – The secret ofsuccessful day-by-day bargaining lies in a good working relationship betweenthe local chairperson and the division carrier officer.

 

            5.         EqualFooting – The local chairperson ison equal footing with division carrier officers when it comes to dealing withworking conditions and other contractual issues affecting the employees.

 

            6.         Antagonismand Personal Rivalry – Develop thekind of relationship whereby the carrier officers are willing to cooperate withyou and to handle claims and grievances quickly and fairly. Youcan’t get this by going out of your way to antagonize them. Never go overthe head of the immediate supervisor, or any other carrier officer, withouttelling them that you intend to do so. If you plan to appeal their decision,tell them so.

 

            7.         Cooperation – Like all “machinery,” the claimand grievance procedures must be properly used to obtain the best possibleresults, if the number of unresolved claims and grievances in a given district,yard or division reaches such proportions that serious delays occur indisposing of meritorious claims and complaints, the machinery is not performingthe task for which it was developed. When this occurs, steps must be taken byboth parties to reduce the claim and grievance load to a reasonable level.

 

            8.         MakingEmpty Threat – If you have a realclaim or grievance and have the facts to back it up, there is no need to bluff.If you haven’t, bluffing won’t win.

 

            9.         Making“Deals” – A localchairperson should never do so-and-so if the carrier officer will dothis-and-that. Such “dealing” makes a sound claim and grievanceprocedure impossible. Once a local chairperson is personally obligated to thecarrier, he or she is no longer in a position to do a decent job.

 

            10.       TalkingToo Much – Be a good listener. Manylocal chairpersons talk themselves out of a case. By knowing when to listen andwhen to talk, you can keep the discussion on the facts in the particular case.

 

            11.       LosingYour Temper – A local chairpersonwho blows up and threatens to shut down the railroad is asking for trouble. Ifa wildcat strike is pulled, he or she may be subject to discipline from boththe UTU and the company, and possibly subject to prosecution. All reasoning andcommon sense are lost when your dander is up. You don’t mix claims andgrievances with lost tempers.

 

            12.       KeepYour Mind On Your Work and Don’t Be Sidetracked – Stick to the point. When you talk, stick tothe issues. If the carrier knows it doesn’t have a valid argument, it maybring up subjects that have nothing to do with the case and get the discussionaway from the claim or grievance. Agree on all the facts and then explaincarefully the exact issue on which you disagree. Stay away from discussingpersonalities as much as possible. Avoid general arguments and belittlingremarks which have nothing to do with the case at hand.

 

            13        DisagreeWith Dignity – If you can’treach a satisfactory settlement, don’t think the world will end.That’s what the other steps of the grievance machinery are for.Concentrate on the situation you are trying to correct and keep the personalelement out of the picture as much as possible.

 

            14.       StickingTogether – Keep a united front. Whenyou go into a conference with several members or union representatives, neverdisagree before the carrier officers. If you quarrel among yourselves, you willimmediately lose the respect of the carrier. The carrier officers will take advantageof your differences. If you see that some real differences of opinion havedeveloped among the members or union representatives, ask for a recess andstraighten out your differences in private.

 

SummarizingYour Case at the Claims or Grievance Conference

 

1.         Avoidpersonal rivalry; don’t antagonize or ridicule the carrierrepresentatives.

2.         Cooperate,but don’t be conciliatory.

3.         Keeppersonal elements out of the picture.

4.         Holdyour temper; be calm; don’t shout, keep your head.

5.         Usea positive approach and stick to the point.

6.         Don’tbe sidetracked; keep your mind on the job to be done.

7.         Havethe carrier take the burden of proof especially if it is a discipline case.

8.         Learnto ask “why.”

9.         Listento the other side of the story.

10.       Don’tbluff

11.       Don’ttalk too much.

12.       Don’tmake deals.

13.       Demandthe same respect from the carrier officers as you have given them.

14.       Ifyou intend to appeal, tell them so.

15.       Disagreewith dignity.

16.       Sticktogether when dealing with management representatives.

 

 

 

HOW LOCAL CHAIRPERSON CAN HELP THEMSELVES TOBETTER HANDLE

CLAIMSAND GRIEVANCES

 

 

Weshall deal with the handling of grievances in two parts. First, with thehandling of time claims:

 

1.         Familiarizeyourself with the local chairperson’s records when you assume office.

 

2.         Knowyour contract and any local or special agreements, interpretations, etc.,modifying or revising rules.

 

3.         Eachlocal chairperson should study each time claim for schedule agreement ruleviolations. They should then support the position of the committee, by citingthe schedule agreement rules considered violated, in the appeal to the carrier.

 

4.         Checkfor prior settlements of identical or similar claims in your files.

 

5.         Donot advise members that time claims notsupported by schedule agreement rules can be collected. You will only forceyourself into admitting later the time claim is not valid. If you know a timeclaim lacks support, tell the member that the claim does not have merit underthe schedule agreement rules and explain the reasons for lack of support byquoting the rule or rules to the member. Do not just merely state the claim is no good.

 

6.         Whenin doubt, give your general chairperson all of the facts, cite yourrules, agreements, prior settlements, and respect his/her greater experienceand judgment.

 

7.         Keepother local chairpersons posted on significant changes or developments that mayhelp them in their work.

 

8.         Innegotiating with the carrier, stick to the language of your rules andsettlements, and insist upon compliance with them, while doingthe same on your part. This will gain you the respect of the carrierofficer, and bring you better results.

 

9          Ifyou find material necessary to fulfilling your responsibilities is notfurnished you, contact your general chairperson and determine what can be doneto fill in the gaps.

 

10.       Themost important thing to remember is: Appeals must be made in writing in orderto be a matter of record under existing time limits. Do not fall into a trapset by a carrier officer who says, “Don’t appeal that claim, I willcheck it for you.” If you wait for the reply and the time limit expires,the claim will be procedurally dead under the time limit provisions.

 

Claims Erroneously Stated

 

If inthe handling of a claim, it is found to have an insufficient agreement basisafter initial presentation, the claim should be rephrased to the proper basisand formal notification given the carrier. An outright denial may result ifthe claim is permitted to remain pending on an incorrect basis, for reason theclaim as made is not supported by rules relied upon. See First Division Awards 1383, 3603, 6626, 17091 and 17429.

 

Inother cases, the particular claim may not be valid, but the rules support theclaim on a slightly different basis. For example, a claim may be made for anadditional day at the yard rates to a road crew, where the agreement providesfor payment of an arbitrary for terminal time, or for local rates under theconversion rule; or, a claim may be presented for lost earnings of theassignment and the agreement provides for payment of a run around, or vice versa.In a large number of awards, the First Division has made a correct applicationof the rules to award payment different from that claimed. See First DivisionAwards 19239, 19240,19315, 19421, 19501, 19673 and 19830.

 

Eight Basic Steps in the Initiation and Progression ofa Time Claim in the “Usual Manner,” on the Property

 

(NOTE: The following are onlysuggested steps. The labor contract always applies.)

 

1. Presentation of claim or grievance in first instance.

 

(a) Byindividual member or crew;

(b) Bythe local chairperson if a violation occurs and no claim made by a member.

 

Thefirst step is the presenting of the claim or grievance by the aggrieved person.It should be noted; however, a local chairperson can file a claim or grievanceon behalf of an individual without consent of the individual involved, if suchlocal chairperson believes the agreement is being violated. Most, if not all,time limit rules read in part, “all claims or grievances must bepresented in writing by or on behalf of the employee involved...” Thispoint or provision emphasizes the need to recognize all claims or grievancesare designed primarily to protect the contract. A claim for a violation shouldbe for eight (8) hours or one (1) basic day.

 

2. Get the facts clearly andcomprehensively stated.

 

Lack offacts, or a conflict or error in the facts, can defeat a claim. See FirstDivision Awards 19337, 19456, 19603, 19684 and 19774.

 

Theclaim or grievance must include the specific facts involved and state theschedule rules to support the claim, The claim is then submitted to the carrierin the normal and usual manner of submitting time claims. A copy of the claimor grievance and all supporting documentation should be retained by theclaimant or local chairperson.

 

Underthe time limit on claims rule, allclaims or grievances must be presented in writing by or on behalf of the employeeinvolved, within a stated amount of time, which is set forth in the collectivebargaining agreement on each property. To avoid losing a claim because of delayin filing, the day on which the violation(s) or grievance(s) occurredshould be counted as day number one.

 

3. Claim is eitherallowed or rejected.

 

Obviously,the claim or grievance is either allowed or disallowed within a stipulated timeperiod set forth in the collective bargaining agreement on the property. Thecarrier is required to decline the claim in writing, setting forth the reasonsfor declining the claim. If the claim is disallowed, the employee should refersuch time claim to the local chairperson immediately after receiving therejection notice from the carrier. Should the carrier fail to decline the claimwithin the stipulated time limit, the claim or grievance is then consideredvalid. However, settlement of a claim on this basis cannot be considered as aprecedent or as a waiver of the rights of the railroad on similar claims in thefuture. If denied, the claim should be given to the local chairperson, alongwith any and all information relating to the claim.

 

4. Appeal tothe designated officer of the carrier.

 

On mostrailroads, the local chairperson would normally appeal the claim or grievanceto the superintendent. However, with the changing structure in the railroadindustry, on some railroads, this may no longer be the case. Each localchairperson should be aware of the designated carrier representative to whomthey must make their initial appeal. The appeal must be made within thestipulated time limit set forth in the collective bargaining agreement. Each claim or grievance should be identified bynumber. The file identification system should be decided by the generalcommittee of adjustment. It is suggested that a code be set up which wouldcontain the local number, a symbol to identify the craft, i.e. (E, F, C,T&Y), the number of the claim or grievance, and the year. In addition, acopy of the appeal should be sent to the claimant and a copy retained on filewith the local chairperson.

 

Whatshould the appeal letter contain? Essentially three things:

 

1. Statement of claim – The particularagreement provision upon which the claim or grievance is being made should beclearly stated. The name of the claimant and date of occurrence should also beincluded.

 

2. Statement of facts involved inthe case – This would include names, dates, location of occurrence, trainnumber and engine number, etc.

 

3. The employee’s position.It should be clearly stated, setting forth all relevant arguments and evidence,submitted in exhibit form, quoting the agreement or rules involved, if any.

 

Thedecision of the carrier officer should be rendered within the stipulated timelimit set forth in the collective bargaining agreement. If the claim orgrievance is disallowed by the carrier officer within the time limit, andhis/her decision is to be appealed, the local chairperson should notify thecarrier officer in writing the decision is not acceptable. The localchairperson may want to request a conference on the claim on the local level.This should be done in writing, and in the letter, the local chairperson shouldrequest a waiver of all time limits until such time as a conference is held.Should the carrier fail to agree to a waiver of the time limits in writing, thelocal chairperson should send the claim or grievance to the general chairpersonso that he or she may continue handling within the stipulated time limits.

 

5. Conferences.

 

Claimsor grievances must be conferenced before they can be taken to arbitration. Onreceipt of notice of a desire on the part of either party to confer, theparties must specify a time and place at which such conference shall be held.The time and place shall be specified within 10 days after receipt of notice,and the date of conference shall not exceed 20 days from receipt of suchnotice. The Railway Labor Act does not specify at what stage of handling claimsor grievances a conference must be held. This requirement of the act is usuallyat the time the claim or grievance is handled by the general chairperson andthe highest officer of the carrier, but it is not necessarily limited thereto.The time limits governing the holding of conferences run concurrently with thetime limits specified in the TimeLimits on Claims Rule of thecollective bargaining agreement, and do not in any way alter, change,or extend those time limits without an agreement to that effect between theparties.

 

It isrecommended that notice of conference be made in accordance with Section 2,Sixth of the Railway Labor Act at the same time the claim or grievance isappealed. This will ensure the conference will be held within the stipulatedtime limit in which the carrier officer has to render a decision on the claimor grievance. If the time claim is not settled, the carrier officer to whichthe appeal was filed, must reject the appeal in writing within the time limitprovisions to the local chairperson.

 

6. Appeal to thegeneral chairperson for further handling.

 

Shouldthe local chairperson be unsuccessful in resolving the claim or grievance onthe local level, then it will be necessary to forward the claim and/orgrievance to the general chairperson. The local chairperson must advise thecarrier officer rejecting the appeal that the decision is unacceptable, andthat the time claim will be appealed by the general committee for furtherhandling under the provisions of the agreement. This should be done without delay so the general chairperson is able to presentan appeal to the highest carrier officer within the time limits stipulatedin the collective bargaining agreement.

 

Inforwarding the file to the General Chairperson, include, but not be limited to,the following:

 

·    Copy ofservice time slip.

 

·    Copy ofpenalty time slip.

 

·    Copy ofreject or cut slip.

 

·    Copy ofappeal letter.

 

·    Copy ofconference notes, if conference was held.

 

·    Copy ofletter from carrier officer declining appeal.

 

·    Copy ofletter advising carrier officer his/her decision will be appealed, if requiredby schedule agreement rules.

 

·    Copy offact sheet which includes names of witnesses, name of carrier officer issuinginstructions, copy of wheel reports, copy of computer date, copy of messages,location, train or assignment number, engine number, on-and-off duty point(s),time of violation, copy of train orders and names of crew members.

 

Thelocal chairperson should appeal separate time claims for each violation, exceptwhere such time claims are identical in nature and facts. All files shouldcontain the latest correspondence at the top of the file, building the filefrom the oldest piece of correspondence upward. When forwarding the file to thegeneral chairperson, the local chairperson should maintain a copy of thecomplete file.

 

7. Appeal tothe highest carrier officer.

 

Thisstep is the appeal by the general chairperson to the highest designated carrierofficer, which must be made within the stipulated time limit. The time limitstarts from receipt of first notice of disallowance by the local carrierofficer. This normally is the date stamped on the rejection slip. In theappeal, the general chairperson should state specifically, “the followingclaim or grievance is being appealed from the decision of the local carrierofficer (superintendent),” and set forth in the appeal the statement ofclaim, statement of facts, and the organization’s position.

 

8. Finalconference with carrier.

 

If this appeal is denied by thehighest carrier officer, the general chairperson should again notify thecarrier in writing that the decision is not acceptable. At this time, thegeneral chairperson should request a conference to handle the claim further.

 

At this conference, the generalchairperson should have on hand not only all of the facts in the case, but alsoa knowledge of procedures and settlements on the property, awards of theNational Railroad Adjustment Board, awards of Public Law Boards, and decisions of any committee (or tribunal)on the same or similar issues which will support the claim. The Railway LaborAct requires at least one oral conference be held on the property before a casecan be listed for arbitration. The time limit for initiation of the request fora conference is normally 60 days, or as set forth in the collective bargaining agreement.

 

Until this point, the appellateprocedure must be made in strict accordance with the applicable time limits.Should the organization fail to make a timely appeal or reply at any one ofseveral steps, the case is considered “dead on time limits” and maynot be pursued further by either party. If the carrier fails to respond timelyto any of the required written appeals, agreements require the claim be allowedregardless of the merits. If the claim is not settled in conference and theorganization wishes to pursue the case further, the final step is arbitration.

 

The highest designated carrierofficer must render a written decision on the results of the conference, againwithin the stipulated time limit. If the carrier officer again denies theclaim, the general chairperson should notify the carrier officer that thedecision is not acceptable and that proceedings are being instituted before atribunal having jurisdiction pursuant to law or agreement. The date of theinitial decision rendered by the highest carrier officer, either prior toconference or following a conference, normally establishes the initial date ofthe time limit within which to progress the claim to the First Division of theNational Railroad Adjustment Board or to a Public Law Board. Most agreementsrequire that the claim or grievance be handled by a tribunal no later than six(6) months from the highest designated carrier officer’s decision.

 

Normally after a claim conference,the general chairperson will wish to progress several denied cases toarbitration. In order to do so, the organization may appeal the matter directlyto the National Railroad Adjustment Board or may reach a mutual agreement maywith the carrier to establish a Special Board of Adjustment. Also, theorganization may simply request that a Public Law Board be established.

 

Today, approximately 90 percent ofall cases are arbitrated by Public Law Boards. Therefore, a discussion of theestablishment and jurisdiction of these boards will be the primary focus of thenext step.

 

The GeneralPrinciples of Fair Representation

 

1.      Because of the exclusivity of theunion’s representative status where it is certified for a craft or class,the courts have held that the employees represented are owed a “duty offair representation.” The duty applies whether the employees belong tothe union or not. Where there is a union shop or agency provision in thecontract, of course, payment is required. But where rail employees exercisetheir statutory right to satisfy their union shop obligation by belonging toBLE, UTU still owes them the duty of fair representation if they are employedin a craft UTU represents.

 

2.      The courts have made it clearthat the union does not have a duty to take every case – not even everydischarge case – to arbitration. It does not have a duty to do“everything possible.” It does not have the duty to supplyexcellent, superior or even inspired representation to a grievant. It does,however, have the duty to evaluate a grievance and determine whether it is worthlessor improper. If it concludes that a grievance should not be progressed, itshould explain why to the aggrieved employee. While the union has no duty to“fight” every case, it does have certain duties which may make itlegally responsible. Those duties are to be honest, to act in good faith, to benon-discriminatory, and to have a rational basis for making a decision. This isthe duty of “fair representation” the union owes to all those inthe crafts it represents.

 

3.      The union is accorded considerablediscretion in the handling of grievances – in other words, the union ispermitted “a wide range of reasonableness” in deciding whether toprosecute and how to prosecute a grievance.

 

4.      The latitude afforded a union underthe law, however, is “subject always to complete good faith and honestyof purpose in the exercise of its discretion.”

 

5.      No individual member has an absoluteright to insist that his or her claim or grievance be pursued through anyparticular step of the procedure. A union may screen claims and grievances, andpress only those it concludes should be pursued in terms of benefit to thecraft as a whole, and take into account such matters as time, expenses andother legitimate considerations.

 

6.      A union may not drop a claim orgrievance based on hostility, discrimination or arbitrariness. It may notarbitrarily ignore a meritous grievance, or investigate or handle it in aperfunctory manner – that is, by merely going through the motions.

 

7.      In other words, a union may abandona claim or grievance, as long as there is a rational basis for doing so. Merewhim or no reason at all will not support a contention that the union officialmerely exercised judgment.

 

A.   Thefollowing are some examples of conduct which might lead to an allegation theunion breached the duty of fair representation:

 

1)         Discrimination – An all-male local committee decides not toappeal a meritous discharge grievance of a female within the local that ishostile to the incumbent administration.

 

2)         Arbitrariness – A general chairperson or a localchairperson withdraws a meritous grievance but, when asked why, can offer noreason.

 

3)         Hostility – The general chairperson or localchairperson has a personal grudge against the grievant and withdraws a meritousclaim or grievance.

 

4)         Dishonesty – The general chairperson or localchairperson misleads the grievant, or lies to him or her.

 

                 B.   The following are examples of conduct which do not violate theunion’s duty of fair representation:

 

1)         The local chairpersonhonestly, but mistakenly, believes the company has not violated the agreement,as he or she interprets it, and withdraws the grievance.

                       

2)         In a merger, aseniority arrangement is agreed to that is in accord with union and industrypractices in light of apparently applicable law and the facts as the union seesthem, although a number of employees are adversely affected.

 

8.      Courts generally require theexhaustion of all effective internal union remedies before legal action canproperly be taken by the grievant. In order to rely on a defense ofnon-exhaustion of such remedies, the union must take care not to mislead themember or place obstacles in the way so that the internal remedy can be said tobe meaningless.

 

9.      In these litigious times, the unionmust strive to avoid even the appearance of bad faith, hostility or arbitraryconduct.

 

10.    Obviously, the local chairperson shouldrecognize the difference between minor and serious grievances. A reprimand orshort actual suspension is less likely to lead to litigation than a dischargeor the loss of seniority.

 

11.    In the case of a discharge, the presumptionmust be in favor of appealing and only compelling facts involving the actualcase should excuse an appeal. A union representative is, first and foremost, anadvocate. Where there are factual disputes, the local chairperson whorepresents the grievant should accept that person’s version of the facts,if credible.

 

12.    Remember, the five W’s –“Who? What? Where? When? Why”? The local chairperson shouldremember to get and record this basic information promptly. We all need tocontinually keep in mind the necessity of early and thorough investigation andrecording of these kinds of basics in every grievance that is being progressed.

 

The Duty of FairRepresentation in Grievance Handling

 

1.      Timing in investigations – Especially in important cases, such aspossible discharges, the five W’s should be investigated promptly, andnotations and evidence should be kept on file. It is important not only that weconduct a good investigation, but also that we can prove we did and refute thecarrier’s charges.

 

2.      Non-grievance-filed situation – If a local chairperson decides he or shecan’t win a grievance and won’t proceed, even if the matter isserious, he or she should try to convince the member. The local chairpersonshould also make a written record of the reasons why he or she didn’tfile the grievance and send it to the person, by certified mail, if feasible.

 

In unusualcases where there is a discharge, and the local chairperson is unable toconvince the member that his or her discharge should not be appealed, then agrievance should be filed at the grievant’s insistence, but the localchairperson should always try to avoid filing phony grievances.

 

3.      The settlement of grievances – Of course, the union has the right to settleclaims and grievances as it sees fit, when it sees fit. What should be avoidedare any appearances, however inaccurate, that one grievant got a bettersettlement than another because of who the parties were. Moreover, there shouldbe no wholesale claim or grievance handling, or horse trading whereby onemember is “sacrificed” in order to save others, nor should there beeven the appearance of such action.

 

Multiplegrievances should not be filed against company action, attacking it on a numberof grounds, some spurious, with the idea of getting a settlement by offering towithdraw some of the grievances.

 

Of course,when a grievance is settled, the local and the claimant should be notified, inwriting, by certified mail, if feasible.

 

4.      Where a claim or grievance isdropped or settled – When it isdecided not to press further a very serious matter, such as one involving alarge claim or discharge, local chairpersons should:

 

            a.        Make sure they have all the facts;and

 

b.        Make written notice ofthe reasons for dropping the matter or settling it, and provide the grievant acopy of the notice.

 

5.      Advice to members – Of course, the local chairperson shouldnever mislead, confuse or refuse to inform a dissatisfied member of his or herinternal union appeal rights and remedies, or their rights under the contractor law.

 

Prompt notification to themember, in writing, of any disposition of the claim or grievance should, as amatter of course, be given, regardless of the seriousness of the claim.

 

Attitudes and Attributesof a Successful Local Chairperson

 

Simply stated, a successful local chairperson is onewho can most effectively protect the schedule labor agreement and represent theinterests of the membership. Accomplishing the most for the membership is thegoal. However, the task is not easy and there are no short cuts.

 

What are thecharacteristics of a successful local chairperson? There appear to be a numberof interlocking factors which make success possible.

 

Successful localchairpersons must believe the labor movement is essential and beneficial toworking men and women, and further, believe he or she is contributingpersonally to the benefits enjoyed by the members.

 

The beliefs maybe motivated by ambition, personal satisfaction in accomplishment, desire forrespect of fellow workers; they may be prompted by opposition to thecarrier’s attitudes and policies; or they may come from a combination ofthese factors and others. But it is this overwhelming motivation and interestin his/her work which characterizes the successful local chairperson inhandling time claims and grievances, and then following through aggressively onthe cases.

 

These beliefsare also most important during the training years of any local chairperson.During this time, they are faced with many discouragements, making them wonderif they are adequate for the job, if their efforts are appreciated and if thesmall financial reward can ever compensate for the time and effort involved inrepresenting the membership.

 

Experience is animportant attribute in accomplishing any task. This is especially true ingrievance work for two reasons: (1) most rail workers’ training has notprepared them for the personal relationship of negotiations with the carrierand the leadership of fellow workers; and, (2) history and application of theagreements and work rules are material which must be obtained from multiplesources. Once this knowledge and material are obtained, the localchairperson’s responsibilities no longer seem insurmountable.

 

With experienceand knowledge, the local chairperson is capable of analyzing the consequencesof each grievance, identifying the position of the carrier, in addition toadopting his/her own proper position, concluding each case with beneficial, notinferior, results. This ability does not require formal education beyondexperience and dedication. Rather than formal education, the ability to thinkclearly and to analyze a problem, arriving at a proper decision which will becontinuously upheld, is required for the job.

 

Additionally, anunderstanding of contract principles, knowledge of the applicable scheduleagreements, knowledge of the Railway Labor Act, and familiarity with proceduresfor handling time claims and grievances from inception to final appeal areimportant skills that require training.

 

A successful local chairperson is scrupulouslyproper and fair in his/her dealings with members and with carrierrepresentatives. A local chairperson who conducts himself/herself in thismanner will earn the respect of both the members and carrier representatives.Once a reputation for honesty and fairness has been established, the localchairperson will be able to accomplish more because he/she will be preceded bysuch reputation. A solid reputation for dealing with the facts will aid insettlements of time claims and grievances on the local level. The carrierrepresentatives will know the opinions and positions of the local chairpersonhave proven correct in the past and if proper weight is not given the localchairperson’s views, handling of cases on appeal may discredit thecarrier representative.

 

 

RAILWAY LABOR ACT

 

The RailwayLabor Act, as it is applied today, is the culmination of over a century ofexperience with federal legislation governing labor relations of employers andemployees engaged in the rail industry. Its primary purpose is to promote andmaintain peace and order in those relations as a means of avoiding interruptionsin interstate commerce. During this period, Congress developed a comprehensivepolicy for dealing with transportation labor problems, and the law probablyrepresents the most advanced form of labor relations procedure in this country.While not exactly utopian, the Railway Labor Act imposes positive duties onboth carriers and employees alike, defines the rights of the parties and makesprovisions for the protection of such rights. The Act also prescribes methodsof settling various types of disputes, and sets up agencies for adjustingdifferences.

 

In order tounderstand the Railway Labor Act, it is important to briefly review thelegislation that preceded its enactment.

 

Arbitration Act

 

The first federal legislation dealing with railwaylabor relations was enacted by Congress in 1888. The law provided: (1) forvoluntary ad hoc arbitration when both parties to the dispute agreed; and, (2)the president could establish boards of inquiry to investigate labor disputesthat threatened to interrupt interstate commerce. The boards of inquiry were tomake a public report of the findings and to make recommendations. During theten years of the law’s existence, the arbitration provisions were neverused, and the investigation provisions were used only once, and then withouteffect on a strike which was already in progress.

 

Erdman Act

 

The Erdman Act of 1898 was the first law to placereliance upon the policy of mediation and conciliation by the government forthe prevention of railroad labor disputes, with a temporary board for eachcase. The investigation features of the Arbitration Act were repealed, butvoluntary arbitration was retained as a second- line resolution procedure ifmediation failed. In 1899, a union requested mediation pursuant to the act, butthe involved railroad refused to participate. The act was not used again until1906. Between 1906 and 1913, 61 cases were settled under the act, mostly bymediation.

 

Newlands Act

 

In 1913, several changes were made in the Erdman Actwhich emphasized the importance of mediation. These amendments later becameknown as the Newlands Act of 1913. The Newlands Act established a full-timeBoard of Mediation and Conciliation, and definitively placed the main reliancefor settlement of disputes upon mediation. The board was also required, if adispute arose relative to the meaning or application of any agreement reachedthrough mediation, to render an opinion when requested by either party to thedispute. When mediation failed, improved arbitration procedures were available.

 

Adamson Act

 

The Adamson Act of 1916 was an attempt to settle adispute with respect to the basic eight-hour day by direct congressionalaction, when mediation failed and arbitration was refused and a nationwide railstrike was imminent. The courts have held that the basic eight-hour day may bevaried by union contract or individual agreement, if there is no union on theproperty for the craft involved.

 

Government Seizure of theRailroads During World War I

 

During World War I, the federal government tookcomplete control of the nation’s railroads. Labor-management relationswere placed under the supervision of the Federal Railroad Administration andits director general. National Boards of Adjustment were created to settle, byarbitration, all disputes which arose due to interpretation of existingagreements.

 

The standardlabor unions supported the national boards since grievance arbitration wastaken out of the hands of local, company-dominated unions. The carriers did notfavor the national boards since they had little control over unions at thenational level. During this period there was relative labor-management peaceand few arbitration cases.

 

The Transportation Act

 

The Transportation Act of 1920 created the UnitedStates Railroad Labor Board of nine members (there to represent, respectively,management, labor and the public) with authority to hear and decide disputesnot disposed of in conferences between representatives of the carrier and theemployees. Compliance with decisions of the board was not made obligatory, andtherefore the board became ineffective.

 

The Railway Labor Act

 

The next and last major law enacted to deal withrail-labor relations was the 1926 Railway Labor Act. The act has been amendedseveral times but remains the hallmark of labor relations in the rail industryand the oldest continuous federal collective bargaining legislation in thenation’s history.

 

The Act has five major functions:

 

            1.         Toprevent the interruption of rail service;

 

            2.         Toallow employees to organize their own unions;

 

            3.         Toprovide complete independence of organizations by both management and

labor;

 

            4.         Toassist in prompt settlement of disputes arising in regard to rates of pay and

workingconditions;

 

            5.         Toassist in prompt settlement of any disputes or grievances which arise as a

resultof conflicting interpretations or application of existing agreements.

 

As the various sections of the Railway Labor Act(RLA) are studied, it is obvious it has embodied provisions of the earlier actsthat were proven effective through experience.

 

The RLA mandates certain basic principles as afoundation for sound labor relations.

 

§152. First.

 

“It shall be the duty ofall carriers, their officers, agents, and employees to exert every reasonableeffort to make and maintain agreements concerning rates of pay, rules, andworking conditions…”

 

The RLA imposesa positive duty upon all carriers and their employees subject to the act tomake and maintain written agreements. The relations between the carrier and employeesare not to be governed by the arbitrary will or whim of management or theemployees, but by written rules mutually agreed upon and equally binding oneach.

 

§152. Second.

 

“Alldisputes between a carrier or carriers and its or their employees shall beconsidered, and, if possible, decided, with all expedition, in conferencesbetween representatives designated and authorized so to confer…”

 

When disputes arise, the RLA mandates an equalresponsibility on the representatives of the parties to the dispute to holdconferences for the purposes of settling the dispute.

 

§152. Third.

 

“Representatives…shallbe designated by the respective parties without interference, influence, orcoercion by either party over the designation of representatives by the other;and neither party shall in any way interfere with, influence or coerce theother in its choice of representatives.”

 

§152. Fourth.

 

“Employees shall have theright to organize and bargain collectively through representatives of their ownchoosing.”

 

§152. Fifth.

 

“Nocarrier, its officers, or agents shall require any person seeking employment tosign any contract or agreement promising to join or not to join a labororganization…”

 

The RLA provides that representatives shall bedesignated by the respective parties without interference, influence, orcoercion by either party over the designation of representatives by the other;and neither party shall in any way interfere with, influence, or coerce theother in its choice of representatives. The parties are free to choose theirrepresentatives and to make such choices by whatever means the parties deemappropriate.

 

The RLA further guarantees theright of the employees to organize, and bargain collectively through theirrepresentatives.

 

The act forbids the carriers torequire that employees join or not join any labor organization.

 

§152. Sixth.

 

“Incase of a dispute…arising out of grievances or out of the interpretationor application of agreements concerning rates of pay, rules, or workingconditions, it shall be the duty of the designated representative orrepresentatives of such carrier or carriers and of such employees…toconfer in respect to such dispute…”

 

As mentionedearlier, it is the duty of each party to exert every effort to make andmaintain agreements, and to hold conferences for the purpose of settling alldisputes.

 

§152. Seventh.

 

“Nocarrier, its officers, or agents shall change the rates of pay, rules, orworking conditions of its employees, as a class, as embodied in agreementsexcept in the manner prescribed in such agreements or in Section 156 of thistitle.”

 

It is the duty of both parties to give at least 30days’ notice of any desired change in rates of pay, rules, or workingconditions embodied in agreements. When a Section 6 Notice has been given, andwhile conferences are being held, or while a dispute is in the hands of theNational Mediation Board, rates of pay, rules, or working conditions shall notbe altered by the carrier until the controversy has been finally acted upon.

 

Under theRailway Labor Act, there are two types of contractual disputes: (1) those thatinvolve changes in existing agreements or implied agreements (practices) arecalled “major” disputes; and, (2) those that involve interpretationor application of existing agreements or implied agreements (practices) arecalled “minor” disputes. The Supreme Court has made it very clearthat a dispute is not “major” just because the union and theemployees are terribly upset about the outrageous behavior of the railroad. Allthat the courts look at is whether the railroad’s position as to why itgets to do what upsets the union is “arguable,” and therailroad’s argument does not have to be a good one! If the railroad hasany argument at all that the agreement(s) or implied agreement(s) (practices)permit the action, the only thing the union can do is take the dispute, in theform of claims denied by the highest designated railroad labor relationsofficer, to arbitration. The courts will not let the union strike over a “minor”dispute.

 

When therailroad has no argument at all that its action is permitted by agreement orpractice, the union can strike until the carrier discontinues the action, or itcan go to court to get an injunction against the railroad’s action,because that would be a “major” dispute. In the past twenty years(1985-2005), only seven disputes in which the UTU has been involved (other thanfully completed, but unresolved negotiations) have been ultimately found to be“major” disputes. One of them is a good example of what a“major” dispute is in this day and age. The railroad in that caseran a new type of train it was thinking about using half-way across the countrywith a crew of railroad officials. It did not claim the agreement permitted this.It did not claim the union had let it do so in the past to permit the practice.UTU struck the railroad until the train reached its destination, and a federalcourt entered an order prohibiting the railroad from using crews made up ofofficials.

 

Of course, even if a “major” disputeexists (which is not likely), no union officer may call a strike without theapproval of the International president. In most cases, after a generalchairperson requests strike authority, the Field Service Department assigns avice president to investigate the dispute and report to the Internationalpresident. Often the Legal Department will be asked for a legal opinion. If a“major” dispute appears to exist, and a vote of the localchairpersons is favorable, strike authority will be granted. The strikeactivity remains under the control of the International president, and assignedvice president, as his or her agent.

 

In order to makea record that the International president, Field Service Department and LegalDepartment can review, the general chairperson should send the railroad a“non-acquiescence” letter. After the railroad responds to theletter, hopefully in writing, setting forth its reasons for taking the actionat issue, all concerned will be better able to judge whether the dispute is“major” or “minor” under the Railway Labor Act.

 

Furtherresponsibilities and obligations are placed on both parties in connection withdisputes involving grievances and the interpretation or application ofagreements. All such disputes which cannot be settled by the parties in directconference are referable either to special boards of adjustment set up byagreement (known as “Public Law Boards”), or the National RailroadAdjustment Board, as provided for in Section 3 of the Railway Labor Act. Carriersthat fail to comply with awards of the National Railroad Adjustment Board orarbitration boards set up in accordance with the act are made subject to civilsuits for enforcement in federal district courts, where attorney’s feesare awarded by law upon enforcement. Arbitration findings are by law“conclusive,” and court review is not available except in verylimited circumstances.

 

The RailwayLabor Act as amended, then, provides definite procedures through which disputesshall be handled.

 

National Mediation Board

 

The NationalMediation Board was established in June 1934 under authority of the RailwayLabor Act as amended.

 

The National MediationBoard is an independent agency in the executive branch of the government and iscomposed of three members appointed by the president of the United States, byand with the advice and consent of the Senate. In addition, the Board has astaff of mediators, who spend practically all their time in field duty.

 

Cases subject to the jurisdiction of the NationalMediation Board are of three general kinds:

 

1.             Differences between carriers and employees regarding requests forchanges in rates of pay, rules, or working conditions under Section 6 of theRailway Labor Act. (“major disputes” docketed as “A”cases).

 

2.             Disputes among employees as to who shall be their duly designated andauthorized representative (“representation disputes” docketed as“R” cases).

 

3.             Interpretation of mediation agreements where controversy has arisen overthe meaning or the application of such agreements (involving completed“A” cases).

 

InterestArbitration

 

When the National Mediation Board finds itimpossible to bring about a settlement of any “A” case bymediation, it endeavors, as required by the act, “to induce the partiesto submit their controversy to arbitration.” However, neither party iscompelled to agree to arbitrate concerning an “A” case.

 

If the partiesagree to arbitrate, and the arbitrators named by the parties are unable toagree upon the neutral arbitrator or arbitrators, it becomes the duty of theNational Mediation Board to name the neutral arbitrators. In agreeing toarbitrate, all parties to a dispute must enter into a signed agreementaccepting whatever decision may be rendered by the Arbitration Board, whichbecomes the agreement of the parties.

 

EmergencyBoards

 

Under the terms of Section 10 of the Railway LaborAct, if a dispute between a carrier and its employees is not adjusted throughmediation or the other procedures prescribed by the act, and should, in thejudgment of the National Mediation Board, threaten to interrupt interstatecommerce to a degree such as to deprive any section of the country of essentialtransportation service, the board shall notify the president, who maythereupon, in his or her discretion, create an emergency board to investigateand report to him or her respecting such dispute. An emergency board may becomposed of such number of persons as the president designates (usually three),and persons so designated shall not be pecuniary or otherwise interested in anyorganization of employees or any carrier. The president of the United Statesfixes the compensation of emergency board members. An emergency board iscreated separately in each instance, and is required to investigate the factsas to the dispute and report thereupon to the president within 30 days from thedate of its creation. During that period, and for 30 days after issuance of thereport, the parties must maintain the status quo. The carrier may not implementchanges in the contract, and the union may not strike.

 

Under the terms of Section 9A of the Railway LaborAct, enacted in 1981, governing commuter railroad disputes, the president ofthe United States must appoint an emergency board in an unadjusted mediationcase if demanded by either party or the governor of the state in which theservice operates. The president of the United States must also appoint a secondemergency board, if so demanded, and if no settlement is reached, that boardmust choose between “final offers” of the parties. The same“status quo” provisions apply as in Section 10 emergency boards.

 

NATIONAL RAILROAD ADJUSTMENT BOARD (NRAB)

 

The amendments of 1934 added a new section to theRailway Labor Act which created what is in effect an industrial court for theadjudication of disputes involving the interpretation or application of wageand rule agreements of rail carriers. It is known as the National RailroadAdjustment Board with offices in Chicago, Illinois, and Washington, D.C. Itconsists of 36 members, 18 selected by the carrier and 18 selected by theorganizations of railway employees that are national in scope.

 

The NationalRailroad Adjustment Board is divided into four divisions, each of whichfunctions and makes decisions separately, similar to the divisions of a court.Each division has jurisdiction over cases involving different classes ofemployees.

 

First Division– train and engine service.

 

Second Division– shop craft employees.

 

Third Division– clerical forces, tower and signal forces, maintenance of way employees,sleeping and dining car employees.

 

Fourth Division– yardmasters and all other employees not included in the other three (3)divisions.

 

The divisions ofthe NRAB primarily utilized by the UTU are the First Division (operatingemployees) and the Fourth Division (yardmasters). The First Division consistsof two (2) labor members from UTU, two (2) labor members from BLE and two (2)management representatives from the carriers. The Fourth Division consists ofone (1) labor member from UTU and (1) management member from the carrier. Onmany carriers, UTU represents shop craft employees, clerks, carmen andmaintenance of way employees. The Second and Third Division of the NRAB will beutilized in the handling of cases involving these employees.

 

The NRABoperates under Uniform Rules of Procedure that are adopted by each division. These rules are rigid and strict and must be complied with. A party desiring tosubmit a dispute must file a notice of intent to file a submission within 75days with the appropriate division. The notice must contain a full statement ofclaim and a copy must be furnished the respondent by the petitioner. There willbe no time limit extensions granted, however, 15-day grace period will beissued. Upon docketing of the dispute by the NRAB, the division will advise theparties to exchange submissions. There are no rebuttals.

 

When cases are deadlocked by the NRAB, notice willbe given to all parties, with the advice that if either party desires a refereehearing before the NRAB (with referee present), they must request same in theirsubmission.

 

The partisanmembers of the NRAB usually select arbitrators. If they are unable to agree ona referee, either party may petition the National Mediation Board to appoint aneutral member (referee) to resolve the disputes.

 

The FirstDivision of the National Railroad Adjustment Board inherited approximately1,200 unresolved cases when it was established in 1934. Because train andengine service employees have always experienced the largest number ofdisputes, the backlog of unresolved disputes increased instead of decreasedwith the establishment of the First Division. In December 1939, the backlog hadincreased to 3,689 cases awaiting decision. In 1943, the backlog on the FirstDivision had increased to more than 6,000 cases. On March 1, 1965, the backlogof undecided cases at the First Division totaled 4,089. It was not unusual forclaimants to wait 10 or more years for their case to be decided.

 

As the backloggrew on the First Division, the operating crafts and some carriers sought toestablish an alternate forum to resolve the pending claims and grievances.

 

PUBLICLAW BOARDS

 

On June 20,1966, the 89th Congress enacted Public Law 89-456 which amendedSection 3, Second, of the Railway Labor Act in order to provide theestablishment of Special Adjustment Boards upon the request either ofrepresentative of employees or of carriers to resolve disputes otherwisereferable to the National Railroad Adjustment Board, or any dispute which hadbeen pending before the NRAB for 12 months from the date the dispute (claim) isreceived by the NRAB.

 

Such SpecialAdjustment Boards, which for identification purposes are referred to as PublicLaw Boards to distinguish them from Special Boards of Adjustment (SBA)otherwise provided for in the Railway Labor Act, have the same jurisdictionover claims and disputes submitted to them as does the National RailroadAdjustment Board.

 

Cases That CanBe Submitted to a Public Law Board:

 

  1. Disputes which are referable to the National Railroad Adjustment Board. Such disputes must have been handled in the usual manner on the property up to and including the highest office of the carrier designated to handle such disputes.

 

  1. Disputes that have been pending before the National Railroad Adjustment Board for at lease twelve (12) months.

 

Cases ThatCannot Be Submitted to Public Law Boards:

 

  1. Claims and grievances arising under laws or agreements containing specific provisions for the disposition of such claims and grievances must be handled in accordance therewith. This should be carefully observed when preparing cases for a Public Law Board.

 

  1. Disputes growing out of request for changes in rates of pay, rules, or working conditions.

 

PROPERNOTICE

 

When notice is served on a carrier to initiate theestablishment of a Public Law Board, the notice should be timely filed inkeeping with the grievance procedure, should clearly state its purpose andauthority, should designate the employee member of the proposed board, and mustinclude a list of the cases to be handled by the board. A proposed agreement togovern the establishment of the board should be furnished with the notice. Theserving of such proper notice will constitute the institution of proceedingsfor the purpose of satisfying the time limit requirement of the grievanceprocedure. The notice is to be reviewed by the general chairperson.

 

In the handlingof disputes under the grievance procedure, very often Public Law Boards do nothave to be established by mutual agreement between the carrier and organizationwithout the serving of notice by either party. Many times the agreements areentered into by officers assigned to assist a general chairperson. Voluntarilysetting up boards in this manner is acceptable, although it is the policy ofthe UTU to encourage the serving of proper notice by the general chairpersonand that he/she also enter into the agreement with the carrier representative.Particularly, if it is anticipated that a carrier may be unwilling to enterinto an agreement to establish a board, the general chairperson should servethe notice and execute the agreement ultimately reached in order to avoid achallenge that such actions were not by the certified representative. Secondly,the rules of the National Mediation Board, Section 1207.1, require thatrequests of general chairpersons or International officers for Mediation Boardaction (appointment of neutrals under NMB Rule 1207.1) must have the approvalof the chief executive of the employee representative. The request to the boardmust be filed on NMB Form 5, which requires supporting data including datenotice for establishing a Public Law Board was made.

 

If, within 30days of the serving of the notice for a proposed board, an agreement, alongwith the cases to be heard is not reached, the carrier refused to enter into asuitable agreement or appoint its member of the proposed Public Law Board, asrequired by Public Law 89-456, the International office (Field ServiceDepartment) should be notified and a request will be made for the NationalMediation Board to designate a carrier member or appoint a procedural neutral,as the case may be. The specific issue or dispute preventing an agreementshould be provided together with supporting data as required on NMB Form 5.

 

Rules of the NMB contemplate that when the partisan membersof the board are designated, they must confer in an effort to reach anagreement establishing the board. If this should prove unsuccessful, aprocedural neutral can be requested to assist the parties by resolving anyissues preventing the parties from reaching an agreement.

 

Technically, under the act, when the partisan members havebeen designated and an agreement reached, the board is established and is toattempt to agree upon an award to dispose of the dispute or group of disputes.As this would be redundant with handling on the property, it is seldom done.But the parties are cautioned that any cases on the docket that are settled,unless withdrawn from the Public Law Board, constitute awards and must be filedwith the National Railroad Adjustment Board along with the record of the cases,which then become public property.

 

When the agreement establishing the board has been finalized,the partisan members should meet as provided therein and endeavor to select amerits neutral member. NMB rules specify that “no neutral will beappointed under Section 1207.1 (c) (merits) until the agreement establishingthe Public Law Board has been docketed by the Mediation Board.” Theparties should advise the NMB, preferably by joint letter, of the neutralselected. If the parties are unable to agree on a neutral, the NationalMediation Board should be requested to appoint one.

 

Three (3) copies of the agreement with a list of casesincluded, should be furnished the UTU International office for approval, two(2) of which will be furnished to the National Mediation Board. Often, uponreaching agreement, the parties may choose to furnish copies directly to theMediation Board. When this is done, a copy of the transmittal letter with one(1) copy of the agreement and list of cases should be furnished to the UTUInternational office.

 

In the event a carrier serves notice to establish a PublicLaw Board, the general chairperson is obligated to meet with the carrier andendeavor to reach a suitable agreement. The law applies equally to managementand the organization insofar as the establishment of a Public Law Board isconcerned.

 

CASES WITHDRAWN FROM THE NATIONAL RAILROAD ADJUSTMENTBOARD

 

Casescan be withdrawn from the National Railroad Adjustment Board if they have beenpending before the tribunal for at least 12 months.

 

The withdrawal of such cases will be under the termsestablished by the NRAB for withdrawing cases, should be identified in thenotice for a Public Law Board, and when the Public Law Board agreement isconsummated the NRAB must be notified of their withdrawal to avoid the casesbeing reheard by that tribunal. The cases cannot be resubmitted to the NRAB.The presentation and hearing of these cases should be limited to the recordbefore the NRAB as that would constitute the record of handling on theproperty.

 

A sampleparagraph for use in such instances to be added to paragraph (G) of theproposed agreement would be:

 

Thecases that have been withdrawn from the National Railroad Adjustment Boardshall be decided upon the record of the case before the NRAB consisting ofemployees’ ex parte submission, carriers’ answer, employees’reply, and interpretation, if any.

 

After a board has been established, cases may be added to thedocket by agreement between the parties to the board, subject to approval bythe National Mediation Board and with the concurrence of the neutral member.One or the other party may not unilaterally add cases to a board. The additionof cases to a docket must be authorized by the NMB prior to hearing orconsidering such cases. An award on an unauthorized case would have no legalstanding. However, it is not the intent to encourage or solicit additionalcases; on the contrary, it is policy to discourage the establishment of“permanent” boards. Also to be avoided is establishing a board witha large docket of cases. In such instances, the NMB may delay establishing theboard while requesting that the cases be grouped under issues to expedite handlingand reduce expense of neutrals. When the proposed docket of cases contains anumber of discipline or reinstatement cases, it may be advisable to establish aseparate board to expedite such cases, particularly, at those times when theNMB is short of funds and must curtail activity of neutrals.

 

THIRD PARTY INTEREST JURISDICTIONAL WORK DISPUTES

             

Where atrue jurisdictional work (or job) dispute appears to exist in cases referred toa Public Law Board, such determination should be made by the board with theneutral member participating as one of the majority considering and making thedecision. If it is found that a third party may have an interest, such partyshould be notified and invited to participate in the manner provided by theagreement. The neutral member shall be one of the two or more members of theboard rendering an award in a dispute where notice of hearings has been givento third parties.

 

CRAFT AUTONOMY

 

Craftautonomy was a condition of acceptance of unification by the four former organizationscreating UTU. Therefore, all concerned must carefully protect this inherentright when handing cases before a Pubic Law Board. Special attention should begiven by consolidated committees.

 

Disputes arising from interpretation and application ofcollective bargaining agreements of the separate crafts that prior tounification may have been handled by tribunals established by law or agreement,may now become an intra-union matter.

 

When disputes involving more than one collective bargainingagreement within the UTU are to be progressed to a Public Law Board,consideration should be given to whether separate boards should be established.But if handled by an officer before the same Public Law Board, the cases shouldbe listed separately insofar as possible under the agreements involved. Whenseparate general committees are involved, extreme care must be observed topermit the general chairperson of the UTU having jurisdiction over theagreement to appear in person before the board to give his/her interpretationof the agreement, or to submit a written interpretation, or concur with theinterpretation of the UTU partisan member of the board.

 

Care must be exercised when handling enginemen’s casesto guarantee the UTU’s right to progress claims or grievances arisingunder another engine service agreement. This right under the Railway Labor Acthas been clearly upheld in the courts and there should be no relaxation of theright to handle such cases to a conclusion.

 

EXECUTIVE SESSION

 

When themembers of the board first meet, the board may desire to organize itself andadopt rules and procedures for guiding its own function, set future hearingdates if necessary, the order and priority for handling cases on the docket,the handling of cases requiring notice to the grievant of date, place, and timeof hearing of his case, handling of proposed awards, executive sessions,furnishing record to NRAB and such other matters deemed appropriate by theboard members. Any change in time limits or waiver of time limits for handlingcases as set forth in the agreement must be documented by notice to the NMB.

 

When the board is meeting with a procedural neutral, only thedecision of the procedural neutral is necessary; when meeting with a meritsneutral, an award requires a majority vote of the members.

 

It is preferable that proposed decisions of a board beconsidered in an executive session with only the principals in attendance toreview proposed decisions with the neutral member before they are finalized forsignature by the respective members. This may an absolute requirement where athird party is involved. However, where there are many cases, or where casesmay be added to the docket after the board commenced functioning, or ifreinstatement cases do not require such meeting, executive sessions can beinconvenient and require unnecessary expense to all parties, including the NMB.Common practice, therefore, is for the board to recess to allow the neutralmember time to prepare proposed decisions and submit them to the carrier andemployee members for review and concurrence with his determination. However,there should be an understanding with the neutral member that when proposeddecisions are distributed in this manner, should either party object, theneutral’s signature is not to be considered valid until he entertains theobjection and submits a final award. All awards should be dated and signed bythe parties. In the event the employee member feels a decision is erroneous, heshould so indicate by signing his name and writing “dissent.” In afew cases where the decision is so contrary to past practice or precedentdecisions, a written dissenting opinion may be found necessary to be made apart of the final award.

 

INTERPRETATIONS – COMPLIANCE – ENFORCEMENT

 

Awardsof Public Law Boards are to have the same status as the awards of the NationalRailroad Adjustment Board including compliance and enforcement. On this basis,the interpretation of awards of the NRAB as provided by Section 3, First (M) ofthe Railway Labor Act is equally applicable to awards of Public Law Boards. Theprovisions of the agreement in Paragraph J contains language taken from the Actand sets no time limit for requesting interpretations. Many carriers desire aspecified time limit, some as short as thirty days. This matter became thesubject of several disputes ruled on by Procedural Neutrals with two finding notime limit required, but the majority finding a period of one year wasappropriate. We find a minimum of ninety days (90) to be acceptable, but in nocase should thirty days (30) be agreed to, as awards generally provide thirtydays (30) for compliance leaving no time to request an interpretation if it isfelt the carrier has not properly complied with the award.

 

Requesting an interpretation can often be utilized to clarifythe intended application and required compliance in lieu of seekingenforcement.

 

 

INVESTIGATIONS

 

 

Know your rights to a fair and impartialinvestigation – be informed – for today. If a carrier remainsadamant about the charges, the only power that can reinstate a dischargedrailroad employee to his/her job may well be the decision of one “neutralperson” appointed by the National Mediation Board, whose decision must bebased solely upon the record made at the investigation hearing.

 

In the railroadindustry (a) the carrier is the moving party in all disciplinary matters and(b) the investigation hearings are under the control of the carrier.

 

When conductingan investigation, the contract rule covering investigations is the only vehiclebetween the railroad employee and the carrier before a penalty can be imposedand upheld. An investigation is by no means a one-way street whereby thecarrier may channel a preconceived judgment of guilt.

 

The NationalRailroad Adjustment Board (NRAB) and other such tribunals have a deeply routedprinciple of justice, and their decisions (awards) give recognition to theunderlying proposition that embodied in any investigation and discipline ruleis a most valued right, security of employment. This right may not be deniedexcept in a manner provided in the collective bargaining agreement under whichthe employee works.

 

Therefore,predicated on the above, the carrier, as a party to the collective bargainingagreement, has a contractual obligation and responsibility in assuring thefairness and impartiality of the investigation pertaining to the administrationof discipline.

 

It is axiomaticin the employer-employee relationship in the railroad industry that the carrieris the moving party in all disciplinary matters. Likewise, it is axiomatic withthe scheme of disciplinary procedures, under schedule agreements requiring theinvocation of the investigation rule incident to the administration of carrierimposed discipline, these railroad investigations are under the control of thecarrier. The purpose of the investigation is mainly a fact-finding device aimedat conducting an impartial inquiry into all the facts connected with thesubject matter under investigation so as to develop the truth regardless of theresult to either party. Or to put it another way, the holding of aninvestigation is not for the sole purpose of proving the correctness of thecharges but for the purpose of developing all facts material to the charge,both against and favorable to the employee. It is important to note here thatthis does not mean to imply that an employee under charges need not plan hisdefense or conduct it in a diligent manner to the best of his ability, or thathe may rely solely on the carrier to develop evidence that will exonerate himof the charge. The real point here is that the carrier, in recognition of thefact that these railroad investigations are under its control must deal withthe presentation and development of all facts material to the charge in a fairand just manner; that if the carrier has knowledge of such material facts ithas the duty and obligation to produce same; and that necessary latitude beallowed the employees in presenting testimony and evidence material to the factmatter under investigation, without denial or undue hindrance on the part ofthe hearing officer.

 

It is noteworthyto comment here that, in the accepted scheme of disciplinary proceedings inconnection with the proper application of the (investigation) rule, the investigationhearing is not an adversary proceeding per se. In this respect, it must beborne in mind that the particular forum employed in conducting the hearing doesnot require strict adherence to courtroom procedures and that the technicalrules of evidence do not necessarily apply. However, this is not to beconstrued as authority for the carrier to disregard the principle of fair playand justice (as they relate to the carrier’s contractual obligation toconduct a fair and impartial investigation) in favor of some type of kangaroocourt. If anything, the non-observance of strict courtroom procedures requiresthat the carrier, in light of its controlling position in the investigationproceedings, exercise special care in affording the accused all rights underthe contract and assure the fairness and impartiality of the investigation inkeeping with the principal reason for holding same.

 

Once the employee/member receives notice of a formalinvestigation, he/she should immediately contact their representatives.Contractual time limits are now in effect and it is most important that bothparties adhere to these time limits. Cases have been won and lost when oneparty or the other fails to adhere to the time limit provisions of thecollective bargaining agreement.

 

What should thelocal chairperson do once he/she receives notice from a member that he/she hasbeen charged?

 

Prepare!Prepare! Prepare!

 

There is no substitute for preparation. You and your local mustbe willing to spend the time and money required for you to be properly preparedto represent our membership. Attempting to do all of the necessary preparationby meeting at a restaurant a few hours before the scheduled start of the formalinvestigation simply does not do justice to the member under charge.

 

At aminimum, substantial time must be spent interviewing and gathering statementsfrom those under charge and those who will testify as witnesses. At the sametime, those same parties must be familiar with investigation procedures andprotocol, as well as the questions that may be posed to them.

 

Concurrently, the representative must develop a writtenoutline of the facts and issues that must be covered. At the same time theapplicable collective bargaining agreement provisions must be reviewed. Moreover,resources such as past precedent on issues of both procedure and merit must bere-examined and studied.

 

Additionally, in many cases it will be necessary to visit thescene where the occurrence took place, to take photographs and preparesketches, maps, charts, and the like for introduction as exhibits into theinvestigation transcript. In this respect, keep in mind that a picture is wortha thousand words.

 

An Investigation Is Not a Court of Law

 

Many of us have a tendency to confuse the internal “railroadadministrative” hearing (i.e., the formal investigation) with a criminaltrial in a court of law. It has been suggested that this gross misconceptioncomes from watching too much television and relying on the unrealisticperceptions we have developed from viewing programs such as Law and Order. This is a terrible injustice to our members.

 

Thebottom line is that there are few valid similarities between a proceedingconducted in a court of law and an administrative investigatory proceeding thatis conducted pursuant to the Railway Labor Act and the collective bargainingagreement.

 

Keep in mind that the only rights we have in an investigationare those contained within, or triggered by, the contract. To put it anotherway, contractual rights are not rights enjoyed by everyone who walks onAmerican soil. Why? Federal and state constitutions govern actions between agovernment (e.g., state or federal) and its citizens. To a significant extent,constitutions do not governactions between private parties, such as actions between a corporation and anemployee.

 

From time to time, local chairpersons and their members mayassert that the First, Fourth, Fifth, or Fourteenth Amendments to the UnitedStates Constitution apply to investigation procedures. The simple answer tothat assertion is “they do not apply.”

 

The clerk at the grocery store, or the employee who pumps gasat the service station, is not entitled to an investigation before his employerdisciplines him or her unless he or she has a contract that mandates the same.We have such a contract, but the process mandated therein has little or nothingto do with our constitutional and legal rights.

 

Primary Purpose – Build a Record Contained in theTranscript

 

Thus, the primary purpose of an investigation is to builda record for subsequent review by a neutral arbitrator. Remember, if yourpoint is not contained within the official hearing record (the investigationtranscript), the neutral arbitrator will not consider it when the case is arbitrated. Simply stated, theprimary purpose of the investigation is to build a record (i.e., the testimonycontained within the hearing transcript) by which we may overturn thediscipline that has been assessed.

 

Fair and Impartial

 

As afoundation for most written discipline rules, the accused is entitled to a“fair and impartial” hearing prior to the assessment of anydiscipline. This is a “contractual” right.

 

As a party to the contractual provision, the railroad has acollateral obligation to guarantee that the accused receives certain“fundamental” rights that are triggered by virtue of the“fair and impartial” contractual provision. The“fundamental” rights may or may not be specifically articulatedwithin the body of the contract.

 

Fundamentalrights include, but are not limited to, the following principles:

 

·      Writtennotice containing specific charges.

·      Rightto representation.

·      Rightto confront and question accuser and/or witness.

·      Rightto defend one’s self, including producing evidence on one’s ownbehalf and calling witnesses with pertinent testimony.

·      Rightto a hearing that is free of bias and prejudgment.

 

Burden of Proof

 

Anothercritical difference between a criminal trial and a formal investigation is thestandard of evidence necessary for the moving party to meet its burden ofproof. As the moving party, the railroad has the burden of proof. That is,management must produce probative evidence (firsthand, credible facts) insupport of the charges.

 

What does the term probative mean? A probative fact is onethat proves the charge being sought. As an example, a credible fellow crewmember who testifies that he or she saw the accused consume a pint of whiskeywithin the tour of duty establishes a “probative” fact inconnection with a Rule G charge.

 

What is the “standard of proof” necessary toconvict the defendant in a criminal trial?

 

“Beyond a reasonable doubt.” This means that thejudge is entirely convinced, without any reasonable doubt, that no otheroutcome is possible. This is the highest standard of proof. However therailroad does not have to meetthis standard in an investigation. Moreover, that standard only has to be metin a criminal trial in a court of law.

 

What is the next highest standard? “Clear andconvincing evidence.” This means the judge believes it is “highlyprobable” that the defendant committed the offense, and also believesthat another outcome is only slightly possible. The railroad does not have to meet this burden in an investigation. It ismet in certain civil cases.

 

The lowest standard of proof is “substantialevidence.” A layman’s definition of this standard is that a“reasonable person” could conclude that the rule was violated. Thisis the standard the railroad must meet in a formal investigation.

 

Also on this CD you will find a booklet entitled “You are Hereby Notified” by Duane Beeler. This booklet was copied withpermission from Mr. Beeler, who was a member of the United Transportation Unionand was on the faculty of Roosevelt University’s Industrial LaborRelations Department. Please take a moment to review this material, as you mayfind it helpful when conducting an investigation.