HISTORY OF RAILROAD UNIONS

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

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

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

• Seniority rights for employees;

• Discipline Agreements – employees were fired at the whim of officers;

• Laws requiring safety in the railroad industry;

• The Railway Labor Act, and

• The Federal Employers’ Liability Act.

In fact, employees who attempted to form or belong to a union were fired with no recourse. Many employees were required to sign so called “yellow dog” contracts at the time of hire. These so-called agreements meant immediate discharge to an employee who joined a union.

Progress was slow and hard fought. However, in 1893, one of the first victories for unions was won with the passage of the Safety Appliance Act. Among other things, 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 voluntary arbitration on the railroads. It made it a criminal offense for railroads to dismiss employees or to discriminate against prospective employees because of their union membership or activity.

Legal protection of employees’ rights to membership in a labor union, a limit on the use of injunctions in labor disputes, lawful status of picketing and other union activities, and requirement of employers to bargain collectively.

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

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

1911: Locomotive Inspection Act passed on Feb. 17.

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

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

1920: Rail employment reached a high of two million workers. Control of the railroads by the government, a wartime measure, ceased in 1920.

1926: Railway Labor Act passed May 20th. It required employers, for the first time and under penalty of law, to bargain collectively and not to discriminate against their employees for joining 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 Labor Relations Act of 1935 followed the example of the Railway Labor Act, and clearly established the right of all workers to organize and to elect their representative for collective bargaining.

1936: Washington Job Protection Agreement, May 21.

Early on, it was obvious to many that a single union representing all operating employees or even all railroad employees would be much stronger and more effective. However, there was much resistance along craft lines.

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

Other unity attempts included proposed mergers between the BLFE and BLE in 1942 and 1953. Both attempts failed due to BLE’s refusal to 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. Of the 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 a solid foundation of mutual trust and understanding in their initial discussions aimed at forming a single organization.

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

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

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

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

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

The purpose of the UTU is to represent transportation service employees and to promote their general welfare, social, moral, intellectual, economical and political interests.

The UTU is governed by a Constitution that details the laws of the union and how they are applied. Regular conventions have been held quadrennially commencing in 1971 and every four years thereafter. Delegates from each local are elected to attend the convention and the delegates elect International officers and revise the Constitution as deemed necessary.

UNITED TRANSPORTATION UNION - STRUCTURE

(1) INTERNATIONAL LEVEL

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

The president heads all union affairs and activities, presides at conventions, supervises officers and employees, interprets union laws, decides all disputes and exercises general executive and administrative control of daily activities of the union.

The assistant president is a representative of the president and assists the president in carrying out all policies and programs of the union.

The general secretary and treasurer is the chief financial officer of the union and shall receive and collect all monies due the union, pay all bills, countersign all checks and drafts requiring his or her signature, and such other papers as may be necessary in the transaction of the business.

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

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

(2) INTERMEDIATE LEVEL

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

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

The state legislative director heads the legislative board in his or her state. The board is made up of the elected legislative representative of each local. The state director attends sessions of the state legislature and keeps in close contact with state lawmakers to promote political and legislative interests of the members.

(3) LOCAL LEVEL

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

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

The local secretary records minutes of meetings, handles correspondence, signs and seals documents. The secretary also furnishes officers with a current list of members, both active and retired.

The local treasurer collects dues, disburses funds, keeps accurate records and files all reports required by law. The treasurer’s job has been simplified by the use of payroll deduction, UTU’s new direct receipts and the treasurer’s Web application. Prior to dues being deducted from a member’s payroll check, collection was a problem.

Local legislative representatives attend state legislative board meetings and work under the direction of the state legislative director, and make proposals for legislation to remedy any unsafe and unsanitary working conditions.

LOCAL COMMITTEES OF ADJUSTMENT

Each local shall elect a local committee of adjustment, consisting of a chairperson, one or more vice chairpersons and a secretary. The International president may grant dispensation for the establishment of separate local committees of adjustment for the members of a local working in one of the various crafts represented by the United Transportation Union. Each local committee shall be maintained by dues and/or assessments set by the members under the jurisdiction of such committee.

Compensation and expenses for members of the local committee shall be determined by the members of the local under the jurisdiction of the committee. The local chairperson, when authorized by the general chairperson to perform service in connection with general committee matters, shall be compensated from the general committee fund.

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

It shall be the duty of the vice chairperson to handle matters referred to the local committee when so directed by the chairperson. The vice chairperson of the local committee shall act as chairperson when the chairperson is unable to perform his/her duties, and in case of a permanent vacancy in the office, he/she shall act as chairperson until the office is filled as provided in Article 57. When more than one vice chairperson is elected to a local committee of adjustment, the local committee shall designate the vice chairperson who shall act as required by this paragraph.

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

LOCAL CHAIRPERSON

It shall be the duty of the local chairperson to promptly handle claims and grievances when presented in accordance with Article 79. He/she shall be authorized to file claims and grievances including those where time has not been claimed, or where claims were incorrectly filed. He/she shall report on the handling of all claims and grievances at the next local meeting.

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

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

As local chairperson of the UTU, the chairperson is the key person in the relationship of UTU to management, and of UTU to its members. The success or failure of the handling of claims and grievances rests on the local chairperson’s knowledge of the agreements. You, as local chairperson, will be doing this on a day-to-day basis.

Without you, and others like you, even the best agreement is meaningless. You give it life. You make it work. The wisest union leader, the most effective administrator, cannot build the union and make it function efficiently without your help. The UTU depends on you and your fellow local chairpersons for future leadership. Do what you know is right. Be fair in your judgments and you will win the respect of all concerned.

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

NEGOTIATOR

Your constituency expects you to present their grievances to the carrier officers. Your success as a negotiator will determine your success as a local chairperson.

ORGANIZER

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

EDUCATOR

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

LEADER

A leader gets things done with the minimum of friction. He/she sparks the enthusiasm and enlists the cooperation of his/her fellow workers.

A local chairperson’s salary (if any) and all expenses of the local committee adjustment are supported by a portion of each member’s dues. In accordance with Article 81 of the UTU Constitution, each local committee of adjustment shall be maintained by dues and/or assessments set by the members under the jurisdiction of such committee.

Local chairpersons have a definite responsibility as provided for in Article 81 of the UTU Constitution which states in pertinent parts:

“It shall be the duty of the Chairperson of the Local Committee of Adjustment to promptly handle claims and grievances when presented in accordance with Article 79. He/she shall be authorized to file claims and grievances including those where time has not been claimed, or where claims were incorrectly and/or improperly filed. He/she shall report on the handling of all claims and grievances at the next local meeting.

“Should the Local Chairperson fail to satisfactorily adjust any case presented he/she may refer same to the General Chairperson with the complete facts and history of the case including copies of correspondence exchanged with local officials.”

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

Local chairpersons also hold a position on the general committee of adjustment. On many committees, local chairpersons elect the general chairperson.

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

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

AUTHORITY TO PRESENT

The Railway Labor Act, as amended, provides for labor organizations to be duly designated and authorized to represent employees on any U.S. rail carrier or carriers.

Section 152. Fourth.

“Fourth. Organization and collective bargaining; freedom from interference by carrier; assistance in organizing or maintaining organization by carrier forbidden; deduction of dues from wages forbidden

“Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this 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, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefore, or to influence or coerce employees in an effort to induce them to 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 other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions: Provided, That nothing in this chapter shall be construed to prohibit a carrier from permitting an employee, individually, or local representatives of employees from conferring with management during working hours without loss of time, or to prohibit a carrier from furnishing free transportation to its employees while engaged in the business of a labor organization.”

Section152. Ninth.

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

“If any dispute shall arise among a carrier’s employees as to who are the representatives of such designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter.”

UTU CONSTITUTION

The United Transportation Union Constitution sets forth requirements that designate subordinate bodies within the organization to provide representation for employees where the United Transportation Union is the duly designated and authorized representative. In addition, such employees grant United Transportation Union complete authority.

Article 44 of the Constitution provides: Authority To Represent

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

“Decisions reached disposing of or settling claims, complaints, and grievances referred to herein shall be furnished in writing, within thirty (30) days after such decision, to the Local Chairperson and Secretary of the local submitting such claims, complaints, and grievances.”

GRIEVANCE HANDLING

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

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

If the general chairperson progresses the violation to arbitration without sufficient data, he/she no doubt will receive a denial award. If the denial award only affected 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 an important provision in the collective bargaining agreement. If the provision was part of a system agreement, it could result in an adverse effect on the members working under the contract on the railroad. If it was a provision under a national agreement, it could have an adverse effect on our entire membership subject to such national agreement.

Why Violations Occur and Grievances Are Filed

Many contract violations occur as a result of an oversight or complete disregard by a local carrier officer of the provisions in the collective bargaining agreement. But others occur because of greed of the carrier and/or its dislike of a particular provision in a contract, especially if an arbitrary is involved. In these types of situations, the carrier will try to drag out the process as long as possible for several reasons. If the carrier has any feasible argument whatsoever in favor of its position, the longer they drag out the dispute, the more likely the members will become discouraged and tired of submitting time claims for the violations. In the meantime, each time a member fails to file a time claim, that is money in the carrier’s pocket 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 for taking so long to resolve the dispute.

Many members think 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 the collective bargaining agreement.

If one goes back into railroad labor history, he or she will find railroad employees in the late 1800s engaged in bitter struggles to obtain agreements that would prevent the railroads from acting in an arbitrary and capricious manner. The employees sought elimination of favoritism in the assignment of workers – and eventually established the seniority principle in the railroad industry. Similarly, to protect craft rights, the employees fought for and obtained a scope rule. Railroad employees of today have a responsibility to maintain these principles. Thus, when a carrier violates the seniority or scope rules, for example, the railroad employees have an obligation to file a time claim not for the purpose of increasing take-home pay, 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 the carrier to repeat the violation.

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

Knowledge of Schedule Agreements

It is extremely important that the local chairperson be knowledgeable of the collective bargaining agreements his/her membership is working under. Carriers will often test new local chairpersons in order to determine how knowledgeable they are concerning applicable agreements.

If the carrier officers find a local chairperson who does not fulfill his/her obligations, they will take advantage of them. They will intentionally violate the provisions of the agreements. The longer such violations occur unchallenged, the more damage is done to future attempts to police the agreement with respect to identical or similar violations of the agreements. The carrier will build a record relative to the application or practice of applying the agreement. Over time, the carrier will expand its application to other districts on the system. When time claims or grievances are progressed the carrier will then take a position “past practice” prevails.

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

1. Since the schedule agreement book was last printed, it is possible additional Memoranda of Understanding have been entered into between the general committee of adjustment and the carrier.

2. At times, agreements covering certain local conditions exist. These, too, are part of the overall collective bargaining agreement.

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

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

5. The Washington Job Protection Agreement of 1936, which covers rail consolidations not covered by the Interstate Commerce Act, is also used to protect employees required to relocate as a result of interdivisional service.

When discussing grievance handling, it is important to recognize there are different types of grievances. In general terms, any complaint from the members pertaining to the rates of pay, rules and working conditions is commonly referred to as a grievance. Any grievance arising from application of specific provisions of the collective bargaining agreement generally is handled through the time-claim procedure mandated by the schedule labor agreement or practice in effect on your property. Complaints arising from the provisions of the law, such as the Hours of Service Act or Interstate Commerce Act, are also grievances, but must be handled in a different method simply because their foundation lies in legal regulation, not in the collective bargaining agreement. In most cases these types of grievances must be enforced by the regulatory agency having jurisdiction and remain outside the scope of the time-claim procedures and adjudication pursuant to the Railway Labor Act.

There will be many times that a member will approach the local chairperson about a contract violation or grievance that the local chairperson does not have the answer to. Be honest with the member. Advise the member you will investigate the matter and get back to him or her with the answer. Then follow through. If you cannot find the answer to the member’s question, consult with your general chairperson for his/her expertise. The worst thing to do is to tell the member what he or she wants to hear. Be honest with the members.

The most respected local chairperson, by both the membership and the carrier, is the local chairperson who is knowledgeable of the agreement and handles time claims and grievances with merit and factual information to support them. To handle claims lacking merit or insufficient information sends the wrong message to the membership and carrier alike. The members will be given false hope thinking the claim or grievance will produce satisfactory results, when in fact, it will not. Additionally, handling claims with no merit bogs down the system, creating unnecessary work for both the local chairperson and the general chairperson.

Time Claims (5 Important Ws)

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

In the handling of time claims, the claim should contain the specific facts involved in the grievance as well as reference to the specific rule which allegedly has been violated. Such facts include what actually happened, the date of the occurrence, 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) of person(s) involved – anyone who can furnish information concerning the claim or grievance. (Don’t forget the supervisor or management representative who might have caused the claim or grievance.)

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

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

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

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

It is important to remember that many people cannot clearly 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 the facts becomes even more important. In such cases, the aggrieved employee is frequently emotionally involved in the grievance – and for good reason, since the employee’s job might well be at stake. But it is in the interest of the employee the facts in the case be carefully checked. There is no substitute for thorough preparation of a case prior to investigations involving the discipline of employees. Read and study You Are Hereby Notified for a closer review of how to prepare for a disciplinary hearing.

Gathering Information

The duties of a local chairperson are awesome. The membership frequently does not understand the burdens of the local chairperson’s duties. Many of our members are of the opinion it is the local chairperson, and not the member, that is responsible for developing information on contract violations. In some instances, it will be necessary for local chairpersons to inject themselves into the fact-finding process. However, this does not excuse the claimant from furnishing as much information as possible with regard to a claimed agreement violation. The claimant is in a much better position to know the pertinent facts involving violations in which they are personally involved. They, not the local chairperson, stand to gain monetarily should the union be successful in defending their claim. We must all work together.

Time Limits

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

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

How Do You Count the Days in Relationship to the Time Limit?

At times a question arises as to just how one counts the days to determine whether or not time limits have been adhered to by the parties. For example, what is day number one if a yard employee starts his shift on 11:00 P.M., July 1, and violation of the agreement takes place on 1:00 A.M., July 2? Similarly, when is the last day on which a carrier can reply – is it the date of mailing the letter or the date of receipt? To be on the safe side, both the first and last day of the time limits should be counted.

These are technical questions on time limits, and it is important, from the UTU’s point of view, that grievances not be lost because the time limit rule has not been 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 as conferences 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 after such request. The conference itself must be held within 20 days after the receipt of the notice.

Rights of Claimants Involved in Continuing Violations

All rights of a claimant involved in alleged continuing violations of the agreement are under this time-limit rule, fully protected by continuing to file a claim or grievance for each occurrence (or tour of duty). With respect to claims and grievances involving an employee held out of service in a discipline case, the original notice of request for reinstatement with pay for time lost is sufficient. However, all subsequent handling of the request for reinstatement must be in accordance with the applicable time limits set forth in the time-limit rule on the property.

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

PAST PRACTICE

Past Practice Under Ambiguous Agreements

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

Past practice or custom is an outgrowth of the principle of interpretation by the parties. Some referees and arbitrators do not distinguish between practice and interpretation by the parties, and use the terms interchangeably. Other referees, as the early awards held, pay little attention to past practice unless it was approved by the authorized union representative. In several incidents in recent years, carriers have successfully argued that if a local chairperson was aware of 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 a local chairperson failing to act on a violation. Most referees will consider past practice when faced with ambiguous agreement provisions. Weight will be given the practice depending upon its generality, duration and mutuality.

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

The following wide selection of decisions illustrates the variety of weight given the contentious principle of past practice in the interpretation of agreements:

“Practice, except as agreed upon, is obviously the creature of management since it alone has power to impose it, but it may not properly exercise this power to make changes in agreed upon or existing practice with respect to which the schedules were adopted, except by agreement. Of course, no amount of practice in direct conflict with the written rules of operation creates a innovation of the agreement, unless shown to have been consciously acquiesced in by authority as high as that which agreed upon, or is authorized to agree upon modification of, the schedule.” (Award 4061) – First Division, NRAB

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

“The contention 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 the interpretation put on this rule by the parties as evidenced by past practice at this point.” (Award 8642) First Division, NRAB

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

“The rule that confronts us is ambiguous and susceptible to two meanings, and following awards of this Division, we must take in consideration the interpretation placed upon this rule by the parties without objection for a long period of years. For better than twenty years this established and universally accepted practice on this property, covering rule and dispute, was interpreted by the parties contrary to that contended for by claimant.” (Award 9033) First Division, NRAB

“It is a universal tenet of construction of contracts that the interpretation which the parties gave to the contract by their conduct will ordinarily be controlling. This tenet of construction has not the same force in the railroad industry as it has where the parties have equal freedom of contract. The railroad industry is quasi-military in the sense that an employee must generally obey orders of his superior and make complaints afterwards if he thinks the rules have been violated. Repeated violations cannot establish a right on the part of the carrier to continue them, nor work a modification of the 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 period of time has great probative value in resolving the conflict.” (Award 9217) First Division, NRAB

“In any event, conceding a certain amount of ambiguity in the agreement because of seeming conflict arising on account of the wording of the Combination of Service Rule, Article 14 and Article 26, Section 4, of the agreement, the past practice of 30 years of compensating firemen in the same manner as the claimant was compensated (which practice is asserted by carrier in its submission and not denied by employees in their rebuttal) would be controlling as to the intent of the parties.” (Award 14859) First Division, NRAB

“In view of the conflict of authorities on the issue, it would seem that the interpretation placed upon the agreement by both thereto, as evidenced by long years of practice there under, should govern. The parties to contract know best what is meant by its terms and are least likely to be mistaken as to its intention. Each party is alert to protect its own interests and to insist on its rights. Whatever is done by them during the period of the performance of the contract is strong evidence of the meaning of its terms as they understood and intended they should be.”

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

Past Practice in Absence of Rule

In the absence of a rule or agreement provision, boards have consistently held that past practice is determinative of the rights of the carrier. This is indicated in the following awards:

“The practice of having the conductor deliver train orders in such a case had been followed for many years and we look to past practice in cases of ambiguity and instances where a rule is not set out in full detail.” (Award 14950) First Division, NRAB

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

“The record 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’s assignment. No rule has been cited providing that a trainman be assigned to work his entire tour of duty with only one conductor. The evidence is that although attempts had been made through negotiations to secure a crew consist rule, the applicable agreement clearly does not contain such a rule. In the absence of a rule this Division has no authority to determine the number of men to be used in a crew.” (Award 15321) First Division, NRAB

DOCTRINE OF LACHES

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

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

While in the courts laches is similar to statutes of limitations, there is a substantial difference between them. Statutes of limitations are concerned with the fact of delay in bringing an action within a specific time period. Laches is concerned with 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 two basic 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 invoking laches 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 the party against whom the claim is asserted. For one to successfully assert the defense of laches, it must be shown that there was a passage of time combined with some prejudice to the party asserting the defense of laches, because laches is an equitable doctrine.

The National Railroad Adjustment Board has on numerous occasions held that laches is a principle of equity, and the board does not have equitable powers.

For example:

“The Railway Labor Act contains no provisions limiting the time within which claims may be filed by employees. Nor does the parties’ agreement applicable to the instant case contain any such statute of limitation. In the absence of such formal prescriptions, should this Board be persuaded by the facts of this case to create one?

“We think not. Under the circumstances as above set forth, such action by us here would amount to our writing a time limit rule for the parties. And this we are not empowered to do. Accordingly, we found that a sustaining award is in order.”

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

“Some four years elapsed between the final exchange of correspondence between the parties on the property and the filing of claimant’s ex parte submission here, but as we noted under similar circumstances in Award 16346, Referee Carroll R. Daugherty, ‘the Railway Labor Act contains no provision limiting the time within which claims may be filed by employees. Nor does the parties’ agreement applicable to the instant case contain any such statute of limitation,’ so we must consider the claim, despite Carriers’ objection that laches has run.”

In Award 17930, Referee Thomas C. Begley of the First Division held:

“The Board further finds that the effective agreement does not contain a clause limiting the time for the filing of time claims.

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

In Award 8362, Referee Robert F. Simmons of the First Division held:

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

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

“The Employees here did not protest individually when the work in question was performed, but their duly authorized representatives had the right to raise a question later, when they learned of the facts and circumstances. There is no limit for the presentation of claims growing out of alleged contract violations in the Act.”

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

“Finally, with respect to Carrier’s defense of ‘laches’ the Board finds it is without merit. The doctrine of ‘laches’ has its genesis in the courts of equity and evolved as one of the many remedies created by the equity chancellors as a means of rectifying the ‘action at law’ deficiencies. It was and is a unique and seldom applied concept utilized only in extraordinary circumstances.”

PRACTICAL APPROACH TO TIME CLAIMS AND GRIEVANCE HANDLING

The present grievance procedures in the railroad industry are governed by the Railway Labor Act. One of the purposes of the Railway Labor Act is “to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions.”

How is this objective to be carried out? The law requires that “all disputes between the carrier or carriers and its or their employees shall be considered and, if possible, decided with all expedition, in conferences between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.”

The law provides further, “the dispute between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions…shall be handled in ‘the usual manner’ up to and including the chief operating officer of the carrier designated to handle such disputes…”

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

In the normal course of any grievance procedure, not all the grievances will be disposed of satisfactorily between the parties, and some procedure must exist to resolve such disputes. To meet this problem, the Railway Labor Act provides for a tribunal, called the National Railroad Adjustment Board, which was designed to handle grievance cases on appeal. In later years, an amendment was placed in the Railway Labor Act to provide for the establishment of Public Law Boards on individual properties.

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

Factors in the First Step of Claim and Grievance Handling

1. Key Person vs. Key Person – In most instances, the immediate supervisor is the key person in the carrier’s collective bargaining set-up, just as you, the local chairperson, are the key person in the UTU set up.

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

3. Carrier’s Area of Decision – There is a small area of decision where the division carrier officer does interpret policy, and it is in this area that the UTU can gain by establishing a cooperative relationship.

4. Working Relationship – The secret of successful day-by-day bargaining lies in a good working relationship between the local chairperson and the division carrier officer.

5. Equal Footing – The local chairperson is on equal footing with division carrier officers when it comes to dealing with working conditions and other contractual issues affecting the employees.

6. Antagonism and Personal Rivalry – Develop the kind of relationship whereby the carrier officers are willing to cooperate with you and to handle claims and grievances quickly and fairly. You can’t get this by going out of your way to antagonize them. Never go over the head of the immediate supervisor, or any other carrier officer, without telling them that you intend to do so. If you plan to appeal their decision, tell them so.

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

8. Making Empty Threat – If you have a real claim 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 local chairperson should never do so-and-so if the carrier officer will do this-and-that. Such “dealing” makes a sound claim and grievance procedure impossible. Once a local chairperson is personally obligated to the carrier, he or she is no longer in a position to do a decent job.

10. Talking Too Much – Be a good listener. Many local chairpersons talk themselves out of a case. By knowing when to listen and when to talk, you can keep the discussion on the facts in the particular case.

11. Losing Your Temper – A local chairperson who blows up and threatens to shut down the railroad is asking for trouble. If a wildcat strike is pulled, he or she may be subject to discipline from both the UTU and the company, and possibly subject to prosecution. All reasoning and common sense are lost when your dander is up. You don’t mix claims and grievances with lost tempers.

12. Keep Your Mind On Your Work and Don’t Be Sidetracked – Stick to the point. When you talk, stick to the issues. If the carrier knows it doesn’t have a valid argument, it may bring up subjects that have nothing to do with the case and get the discussion away from the claim or grievance. Agree on all the facts and then explain carefully the exact issue on which you disagree. Stay away from discussing personalities as much as possible. Avoid general arguments and belittling remarks which have nothing to do with the case at hand.

13 Disagree With Dignity – If you can’t reach 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 personal element out of the picture as much as possible.

14. Sticking Together – Keep a united front. When you go into a conference with several members or union representatives, never disagree before the carrier officers. If you quarrel among yourselves, you will immediately lose the respect of the carrier. The carrier officers will take advantage of your differences. If you see that some real differences of opinion have developed among the members or union representatives, ask for a recess and straighten out your differences in private.

Summarizing Your Case at the Claims or Grievance Conference

1. Avoid personal rivalry; don’t antagonize or ridicule the carrier representatives.

2. Cooperate, but don’t be conciliatory.

3. Keep personal elements out of the picture.

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

5. Use a positive approach and stick to the point.

6. Don’t be sidetracked; keep your mind on the job to be done.

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

8. Learn to ask “why.”

9. Listen to the other side of the story.

10. Don’t bluff

11. Don’t talk too much.

12. Don’t make deals.

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

14. If you intend to appeal, tell them so.

15. Disagree with dignity.

16. Stick together when dealing with management representatives.

HOW LOCAL CHAIRPERSON CAN HELP THEMSELVES TO BETTER HANDLE

CLAIMS AND GRIEVANCES

We shall deal with the handling of grievances in two parts. First, with the handling of time claims:

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

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

3. Each local chairperson should study each time claim for schedule agreement rule violations. They should then support the position of the committee, by citing the schedule agreement rules considered violated, in the appeal to the carrier.

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

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

6. When in doubt, give your general chairperson all of the facts, cite your rules, agreements, prior settlements, and respect his/her greater experience and judgment.

7. Keep other local chairpersons posted on significant changes or developments that may help them in their work.

8. In negotiating with the carrier, stick to the language of your rules and settlements, and insist upon compliance with them, while doing the same on your part. This will gain you the respect of the carrier officer, and bring you better results.

9 If you find material necessary to fulfilling your responsibilities is not furnished you, contact your general chairperson and determine what can be done to fill in the gaps.

10. The most important thing to remember is: Appeals must be made in writing in order to be a matter of record under existing time limits. Do not fall into a trap set by a carrier officer who says, “Don’t appeal that claim, I will check 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 in the handling of a claim, it is found to have an insufficient agreement basis after initial presentation, the claim should be rephrased to the proper basis and formal notification given the carrier. An outright denial may result if the claim is permitted to remain pending on an incorrect basis, for reason the claim as made is not supported by rules relied upon. See First Division Awards 1383, 3603, 6626, 17091 and 17429.

In other cases, the particular claim may not be valid, but the rules support the claim on a slightly different basis. For example, a claim may be made for an additional day at the yard rates to a road crew, where the agreement provides for payment of an arbitrary for terminal time, or for local rates under the conversion rule; or, a claim may be presented for lost earnings of the assignment 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 application of the rules to award payment different from that claimed. See First Division Awards 19239, 19240, 19315, 19421, 19501, 19673 and 19830.

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

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

1. Presentation of claim or grievance in first instance.

(a) By individual member or crew;

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

The first 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 grievance on behalf of an individual without consent of the individual involved, if such local chairperson believes the agreement is being violated. Most, if not all, time limit rules read in part, “all claims or grievances must be presented in writing by or on behalf of the employee involved...” This point or provision emphasizes the need to recognize all claims or grievances are designed primarily to protect the contract. A claim for a violation should be for eight (8) hours or one (1) basic day.

2. Get the facts clearly and comprehensively stated.

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

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

Under the time limit on claims rule, all claims or grievances must be presented in writing by or on behalf of the employee involved, within a stated amount of time, which is set forth in the collective bargaining agreement on each property. To avoid losing a claim because of delay in filing, the day on which the violation(s) or grievance(s) occurred should be counted as day number one.

3. Claim is either allowed or rejected.

Obviously, the claim or grievance is either allowed or disallowed within a stipulated time period set forth in the collective bargaining agreement on the property. The carrier is required to decline the claim in writing, setting forth the reasons for declining the claim. If the claim is disallowed, the employee should refer such time claim to the local chairperson immediately after receiving the rejection notice from the carrier. Should the carrier fail to decline the claim within the stipulated time limit, the claim or grievance is then considered valid. However, settlement of a claim on this basis cannot be considered as a precedent or as a waiver of the rights of the railroad on similar claims in the future. If denied, the claim should be given to the local chairperson, along with any and all information relating to the claim.

4. Appeal to the designated officer of the carrier.

On most railroads, the local chairperson would normally appeal the claim or grievance to the superintendent. However, with the changing structure in the railroad industry, on some railroads, this may no longer be the case. Each local chairperson should be aware of the designated carrier representative t