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September 7, 1966

Bangor And Aroostook Railroad Company et al., Plaintiffs,
Brotherhood of Locomotive Firemen And Enginemen, Defendant. Brotherhood Of Locomotive Firemen And Enginemen, Plaintiff, v. New York Central Railroad Company, Defendant

Holtzoff, D.J.

The opinion of the court was delivered by: HOLTZOFF

In the case of Bangor & Aroostook Railroad Co. v. Brotherhood of Locomotive Firemen & Enginemen, the Brotherhood is moving for a preliminary injunction which, with the consent of counsel for the moving party, is being construed as an application for additional relief at the foot of the decree. In the case of Brotherhood of Locomotive Firemen & Enginemen v. New York Central Railroad Co., the plaintiff is moving for a preliminary injunction. The questions involved in the two applications are similar and overlap. The two matters have, therefore, been argued together.

 The questions presented relate to the status of firemen who are given a certain permanency of tenure by Arbitration Award 282. It is not necessary to review all of the preliminaries. *fn1" Suffice it, however, to recall the fact that Award 282 of the Arbitration Board created by an Act of Congress enacted on August 28, 1963, 77 Stat. 132, provided that in freight and yard services all firemen, with the exception of ten percent of their number, could be dispensed with as unnecessary. In ten percent of the positions, which were to be determined in a manner provided in detail in the Award but which it is not necessary to summarize in the course of this proceeding, the firemen were to be retained. Admittedly, there is no dispute that in passenger service firemen have to be retained. The reason for the distinction between freight and passenger service is that while all parties concede that a moving locomotive must ordinarily have two men in its cab, the practice in freight service is for the head brakeman to be stationed in the locomotive and, therefore, the fireman becomes unnecessary.

 The question presented on the argument of these applications is what constitutes the permanency of tenure which is to be accorded to the C(6) and C(7) firemen. The nature of the tenure accorded to them is defined in the Award.

 Paragraph D(2) of the Award provides in part as follows:

"Firemen (helpers) who remain on the active working lists of the carrier under the provisions of paragraph C(6) and C(7) of this Award shall have the right to work their turn as firemen (helpers) to the extent that positions as firemen (helpers) are available in their respective seniority districts."

 And again, this paragraph provides that:

"Such firemen (helpers) shall have no right to jobs that the carrier may discontinue pursuant to the provisions of this Award if other employment in any class of engine service, for which they are qualified, is available to them in their respective seniority districts."

 Obviously, the permanent tenure accorded to each fireman is not the right to remain on the same assignment or the same run for the rest of his active life. In fact, such an interpretation would not necessarily be in the best interests of the firemen, because trains are at times discontinued and the permanency of tenure should not be tied to any one particular train or run. The problem is the extent to which the protected firemen may be assigned to positions or tasks other than those that they were performing at the time of the expiration of the effective period of the Award.

 As has been stated, there are certain positions that the railroads must fill. They must carry firemen on all passenger trains. They are required by the Award to maintain firemen on ten percent of the positions in the freight and yard service. In addition, in certain States laws known as "full crew" laws require that certain personnel be hired, even though such personnel could be dispensed with under the Award in the absence of such laws. The Supreme Court has held that the full crew laws supersede the Award pro tanto, Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 15 L. Ed. 2d 501, 86 S. Ct. 594.

 If a vacancy arises in one of the positions that the carrier must keep filled, the question is whether one of the protected firemen may be transferred by the carrier to such an assignment. The Court answers this question in the affirmative. We must construe the Award just as a statute or contract in accordance with the obvious intention of its framers. One of the purposes of the Award was to permit the railroads to dispense with firemen, but to do so gradually as a matter of protection to existing incumbents. It would defeat the purposes of the Award if the carriers were required to go out and hire additional firemen to fill positions that must be kept filled, when protected firemen are available and can be used for that purpose. Consequently, the Court is of the opinion that carriers may transfer C(6) or C(7) firemen to any position that has to be kept filled, when such a position becomes vacant by reason of death, resignation or retirement of its incumbent.

 Naturally, such a transfer may be made only within the seniority district to which the transferred fireman is accredited. Also, it is hardly needless to say that the carrier must observe seniority. It may not pick any fireman at random and transfer him. It must accord an opportunity for transfer to protected firemen in the order of their seniority, and if none of them desires to accept the assignment, then the carrier's right to make the transfer is restricted to the most junior fireman on the list.

 The next problem is more complicated. To what extent may a carrier transfer a protected fireman from the position to which he has been assigned to another position which need not be kept filled? Specifically, as a supposititious case, suppose there are 50 firemen positions in a particular seniority district, of which 15 are of the type that must be filled. Suppose some of the remaining 35 gradually become abolished by the process of attrition due to death, resignation or retirement. May the carrier transfer a protected fireman to another position within that group? A cognate question is, may a carrier abolish some of the positions within that group and then ...

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