The opinion of the court was delivered by: SHADUR
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
Willie Williams ("Williams"), Berton Osterman ("Osterman") and International Brotherhood of Electrical Workers ("Union") have sued Chicago and North Western Transportation Company ("CNW"), seeking review of Award No. 709 (the "Award") issued by Special Board of Adjustment No. 570 ("Board"). Both sides have now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56 -- petitioners to have the Award set aside and the case remanded, CNW to have the Award enforced. For the reasons stated in this memorandum opinion and order, petitioners' motion is granted and CNW's is denied.
Union and CNW are parties to a September 25, 1964 Mediation Agreement (the "Agreement") (P. Ex. N).
Art. I, § 1 states its purpose is "to afford protective benefits for employees who are displaced or deprived of employment as a result of changes in the operations of the carrier due to the causes listed in Section 2." Art. I, § 2 lists seven such types of changes, the second and sixth of which have been implicated in this case (though, as will be made clear later, the sixth should not have been -- see nn. 5 and 10):
b. Abandonment, discontinuance for 6 months or more, or consolidation of facilities or services or portions thereof;
f. Technological changes.
Railway Labor Act ("Act") § 153 Second
permits carriers and unions to establish special adjustment boards to adjust and decide disputes arising from the interpretation or application of collective bargaining agreements. Accordingly Art. VI provides a mechanism for the resolution of certain disputes. It also vests Board with exclusive jurisdiction over disputes arising under Art. I.
On February 13, 1984 CNW notified Union that as of April 13, 1984 it was abolishing all engineer electrician positions, including those of Williams and Osterman (P. Ex. A).
CNW said it was taking that action "as a result of the discontinuation of service at the Lake Street Power Plant and the CPT [Chicago Passenger Terminal]" (id.).
Union responded that Williams and Osterman were entitled to protective benefits under Art. I, § 2(b) -- an assertion that matched CNW's February 13 statement of reasons with the terms of the Agreement. CNW then changed its story, notifying Union on April 9 that the positions were being abolished for a different reason: a change from high to low pressure boilers (P. Ex. E). Because Board had recently issued an award denying benefits on a similar ground, CNW now asserted Williams and Osterman were not entitled to benefits under the Agreement (id.).
CNW and Union then attempted to resolve the dispute. When it became clear no resolution was possible, Union submitted the claim to Board. Both parties then filed written submissions.
By a 4 to 3 vote
Board denied the claim based on these holdings:
1. Williams and Osterman were not entitled to benefits under Art. I, § 2(b) because the facility was not abandoned nor were services discontinued (Award at 3-4).
2. They were also not entitled to benefits under Art. I, § 2(f) because no technological change had occurred (Award at 4).
Board's three labor members dissented, asserting:
1. Based on the record, the employees were entitled to benefits under Art. I, § 2(b) (Award Dissent at 1-2).
2. Because Union had never advanced a claim based on technological change, Board's reliance on Award No. 543 and its reference to Art. I, § 2(f) were misplaced (id. at 1).
3. Board exceeded its authority when it based its decision on newly submitted evidence not presented to Union during the pre-Board discussions. ...