Common use of Referee's Decision Clause in Contracts

Referee's Decision. It is the decision of the referee that the position of the carriers on this question is clearly supported by the preponderance of the evidence. Much of what the referee said in his decision on Question 2 under Article 1, dealing with Item G, "Time Paid for Because of Suspension or Dismissal," is applicable here also. Suffice to say at this point, the referee believes that the position of the labor organizations on this question is not a realistic one, but rather constitutes a very strained interpretation of the following language of Article 8: "whose employment relation with a carrier is terminated prior to the taking of his vacation." The position taken by the employees in their discussions of this problem, as set forth on pages 636 to 672 of the transcript, appear to the referee to be highly technical, especially their insistence that the criterion which should be considered as controlling in determining whether or not employment has been terminated is loss of seniority. They argue that if an employee is reinstated or returned to work by the carrier following a dismissal without loss of seniority, then his employment status never was terminated. However, the argument entirely overlooks the fact that when a man is dismissed for just cause, it falls within the discretion of the carrier to leave him off the payrolls permanently or, as an act of leniency, to put him back on the payroll with seniority. However, it is such dismissal that constitutes the termination of employment; such an employee's return to service without loss of seniority, and in some instances also with all or part pay for lost time, is in fact an act of leniency by the carrier and in no way modifies or changes the meaning of "termination of employment relation" as it is referred to in Article 8 of the vacation agreement. The referee feels that counsel for the carriers put the problem rather effectively when, on page 659 of the transcript, he stated : "Now, Mr. Referee, I will agree that this is a small thing and the situation with which we are confronted does not occur every day, but I find myself just in this position: "I think railroad managers are human. I know from my own experience that they listen with care and consideration to leniency pleas. But what Xx. Xxxxx suggests, it seems to me, is simply this: that whenever from now on a plea is made for the reinstatement of a man, the man who gives it has to say to himself,'Here is a man who is guilty, his guilt was such as to justify discharge; I am asked as a humane matter to put him back I am willing to put him back, but I don't want to pay out fifty or sixty dollars of the company's money for the privilege or being humane.' "I would like to suggest this: I want men put back on a leniency basis where conditions justify. I do not want barriers erected towards the exercise of leniency by a railroad company. I do not want barriers put in the way of railroad officers being good to their men. I do not think that a railroad should be required to pay a price for the privilege of being good, and for the sake of the men about whom we are talking I would urge that the position of the organizations is just wrong. I do not believe that their attitude is one which will bring about humane treatment of employees who have been rightfully discharged, but whom the management feels should be put back on a leniency basis." The referee agrees in general with the foregoing quoted statements of counsel for the carriers, and he is satisfied that it would not be reasonable to give to Article 8 the interpretation and meaning which the employees would place upon it. However, when a suspension is given as discipline (as distinguished from a dismissal), the employee relation shall not be deemed to have been terminated within the terms of Article 8 of the vacation agreement.

Referee's Decision. It is the decision of the referee that the preponderance of the evidence in the record clearly supports the position of taken by the carriers on this question is clearly supported by question. The referee has considered carefully the preponderance comments and arguments of the evidence. Much of what the referee said in his decision on Question 2 under Article 1, dealing with Item G, "Time Paid for Because of Suspension or Dismissal," is applicable here also. Suffice to say at this point, the referee believes that the position of the labor organizations parties on this question is not a realistic one, but rather constitutes a very strained interpretation of the following language of Article 8: "whose employment relation with a carrier is terminated prior to the taking of his vacation." The position taken by the employees in their discussions of this problemquestion, as set forth on pages 636 594 to 672 836 of the transcript, appear to as well as the referee to be highly technical, especially statements made by them in their insistence briefs and memoranda. It is his conclusion that the criterion which should be considered as controlling in determining whether or not employment has been terminated is loss of seniority. They argue that if an employee is reinstated or returned to work position taken by the carrier following a dismissal without loss of seniorityemployees as set forth in the joint submission document, then his employment status never was terminatedif adopted, would lead to very unfair and unreasonable results. HoweverIt is probably true, as contended by the argument entirely overlooks employees, that the fact that when a man is dismissed for just cause, it falls within the discretion illustration of the carrier problem as offered by the carriers presents exceptional facts and circumstances which would rarely occur and which could be avoided by a careful scheduling of vacations. Be that as it may, nevertheless the illustration does serve to leave him off point out some of the payrolls permanently or, as an act inherent unfairness of leniency, to put him back the employees' position on the payroll with seniority. However, it is such dismissal that constitutes the termination of employment; such an employee's return to service without loss of seniority, and in some instances also with all or part pay for lost time, is in fact an act of leniency by the carrier and in no way modifies or changes the meaning of "termination of employment relation" as it is referred to in Article 8 of the vacation agreementquestion. The referee feels believes that the carriers' contention on the illustration is sound. The record shows that the parties have made a good-faith attempt to negotiate a settlement of this dispute. Each side submitted to the other a statement of the formula or rule which they desired to have approved as the basis for interpreting and applying the words "regular assignment" as used in Section (a) of Article 7. The employees proposed the following language: "As to an employee having a regular assignment, but temporarily working on another position at the time his vacation begins, such employee while on vacation will be paid the daily compensation of the position on which actually working at the time his vacation begins, provided it has been bulletined and assigned to such employee, or provided such employee has been working on such position, even though not bulletined and assigned for fifteen or more calendar days." As pointed out on page 628 of the transcript, the carriers proposed the following rule: "As to an employee having a regular assignment but is temporarily working on another position at the time his vacation begins, such employee while on vacation will be paid the daily compensation of the position on which actually working at the time the vacation begins provided such employee had been working on such position for 30 days or more." During the hearing counsel for the carriers put suggested to the problem rather effectively whenemployees by way of compromise that they add the following language to their proposal "and which he would have occupied during his vacation period had he not gone on vacation." However, the representatives of the employees rejected the suggestion. The transcript of the record also shows on page 659 635 that just before the negotiations in which the parties attempted to compromise their differences broke off the carriers offered to reduce the thirty days' period in their proposal to twenty days. The referee is satisfied that the carriers' above-quoted proposal with the thirty days' period changed to twenty days provides a fair and reasonable settlement of the transcript, he stated : "Now, Mr. Referee, I will agree that this is a small thing dispute over the interpretation and the situation with which we are confronted does not occur every day, but I find myself just in this position: "I think railroad managers are human. I know from my own experience that they listen with care and consideration to leniency pleas. But what Xx. Xxxxx suggests, it seems to me, is simply this: that whenever from now on a plea is made for the reinstatement application of a man, the man who gives it has to say to himself,'Here is a man who is guilty, his guilt was such as to justify discharge; I am asked as a humane matter to put him back I am willing to put him back, but I don't want to pay out fifty or sixty dollars Section (a) of the company's money for the privilege or being humane.' "I would like to suggest this: I want men put back on a leniency basis where conditions justify. I do not want barriers erected towards the exercise of leniency by a railroad company. I do not want barriers put in the way of railroad officers being good to their men. I do not think that a railroad should be required to pay a price for the privilege of being good, and for the sake of the men about whom we are talking I would urge that the position of the organizations is just wrong. I do not believe that their attitude is one which will bring about humane treatment of employees who have been rightfully discharged, but whom the management feels should be put back on a leniency basis." The referee agrees in general with the foregoing quoted statements of counsel for the carriersArticle 7, and he is satisfied that it would not be reasonable to give to Article 8 the interpretation hereby approves and meaning which the employees would place upon adopts it. HoweverThus it will read as follows: "As to an employee having a regular assignment, when a suspension is given as discipline (as distinguished from a dismissal)but temporarily working on another position at the time his vacation begins, such employee while on vacation will be paid the employee relation shall not be deemed to have been terminated within the terms of Article 8 daily compensation of the position on which actually working at the time the vacation agreementbegins, provided such employee has been working on such position for twenty days or more."

Referee's Decision. It is the decision of the referee that the position first paragraph of Section (b) of Article 4 does not give to the management the unqualified right to require all or any number of employees in any plant, operation, or facility to take vacations at the same time. The paragraph must be read in light of the over-all purpose of the entire Article 4, of which it is a part. After studying the conflicting arguments of the parties as to the meaning of the paragraph and the intention of the parties insofar as the conferring of rights is concerned, the referee has come to the conclusion that it was not the intention of the parties that Section (b) of Article 4 should supersede or nullify Section (a) of Article 4. Rather, Section (b) of Article 4 must be read in light of the general purpose of the vacation agreement; namely, that individual employees who qualify should receive vacations and they should receive them, whenever possible, subject to the requirements of the service, in accordance with their desires and preferences granted in seniority order. To that end, the parties provided in Section (a) of Article 4 for joint machinery to effectuate the granting of vacations on a cooperative basis. In Section (b) of Article 4 the parties recognized that there are instances in which, in the interests of efficiency, economy, and sound operation practices, group vacations should be granted. However, it would violate one of the obvious purposes of Article 4, when read in its entirety, to hold that the carriers must cooperate with the representatives of the employees when fixing vacation dates for individual employees, but that they can act independently when granting group vacations. It is the referee's view on this question that under Article 4 representatives of the carriers on this question is clearly supported by the preponderance and of the evidenceemployees are bound to work out together on a cooperative basis joint plans for the granting of vacations to individuals and to groups. Much of what the referee said in his decision on Question 2 under Article 1, dealing with Item G, "Time Paid for Because of Suspension or Dismissal," is applicable here also. Suffice to say at this point, the referee believes The primary thing that the first paragraph of Section (b) of Article 4 does is to make the granting of group vacations permissible under the agreement, when the granting of such group vacations would be in the interests of the requirements of service. It places the labor organizations in a position in which they cannot object to the granting of group vacations when it can be shown that such vacations are justifiable in the interests of the requirements of service. Further, when the first paragraph of Section (b) of Article 4 is read in connection with the second paragraph of the section it becomes clear that there is placed upon the shoulders of the labor organizations on this question the responsibility and duty of cooperating with management in arranging their group vacations. However, the paragraph does not vest arbitrary power in management to grant group vacations as and when it pleases, irrespective of the desires and interests of the employees. It is not a realistic onetrue that there is plenty of room for doubt and conflicting opinions as to the meaning of the first paragraph of Section (b) of Article 4, but rather constitutes when it is read in connection with the entire article and in light of the complete record made by the parties on the issue involved, this referee is satisfied that his ruling is a very strained fair and reasonable interpretation of the following purposes which the parties had in mind when they agreed upon the language last December. He is convinced that his interpretation gives unity of Article 8: "whose employment relation with a carrier is terminated prior meaning to the taking article and will remove one of his vacation." the principal sources of friction which has developed between the parties in administering the vacation agreement: The position taken by referee feels that a statement of the employees in their discussions spokesman of this problemthe employees, as set forth appearing on pages 636 to 672 page 383 of the transcript, appear to expresses quite well the referee to be highly technical, especially their insistence that the criterion view which should prevail in interpreting and applying the paragraph: "We say the paragraph should be considered read as controlling though it were written 'where the demands of the service and the desirer and preferences of the employees in determining whether seniority order in fixing vacation dates and taking vacations in spite of proper planning impair or not employment has been terminated is loss prevent the proper functioning of seniority. They argue that if an employee is reinstated a particular plant, operation or returned to work by the carrier following a dismissal without loss of seniorityfacility, then his employment status never was terminated. However, the argument entirely overlooks the fact and to that when a man is dismissed for just cause, it falls within the discretion of the carrier extent Article 4 (b) should be utilized to leave him off the payrolls permanently or, as an act of leniency, supplement and to put him back on the payroll with seniority. However, it is such dismissal that constitutes the termination of employment; such an employee's return to service without loss of seniority, and in some instances also with all or part pay for lost time, is in fact an act of leniency by the carrier and in no way modifies or changes the meaning of "termination of employment relation" as it is referred to in Article 8 of the vacation agreement. The referee feels that counsel for the carriers put the problem rather effectively when, on page 659 of the transcript, he stated : "Now, Mr. Referee, I will agree that this is a small thing and the situation with which we are confronted does not occur every day, but I find myself just in this position: "I think railroad managers are human. I know from my own experience that they listen with care and consideration to leniency pleas. But what Xx. Xxxxx suggests, it seems to me, is simply this: that whenever from now on a plea is made for the reinstatement of a man, the man who gives it has to say to himself,'Here is a man who is guilty, his guilt was such as to justify discharge; I am asked as a humane matter to put him back I am willing to put him back, but I don't want to pay out fifty or sixty dollars of the company's money for the privilege or being humanequalify 4 (a).' "I would like to suggest this: I want men put back on a leniency basis We say that even where conditions justify. I do not want barriers erected towards the exercise of leniency by a railroad company. I do not want barriers put in the way of railroad officers being good to their men. I do not think that a railroad should be required to pay a price for the privilege of being good, and for the sake of the men about whom we group vacations are talking I would urge that the position of the organizations is just wrong. I do not believe that their attitude is one which will bring about humane treatment of employees who have been rightfully discharged, but whom the management feels should be put back on a leniency basis." The referee agrees in general with the foregoing quoted statements of counsel for the carriers, and he is satisfied that it would not be reasonable to give to Article 8 the interpretation and meaning which the employees would place upon it. However, when a suspension is given as discipline (as distinguished from a dismissal), the employee relation shall not be deemed to have been terminated within the terms of Article 8 of the vacation agreement.under 4

Referee's Decision. It is the decision of the referee that the position first paragraph of Section (b) of Article 4 does not give to the management the unqualified right to require all or any number of employees in any plant, operation, or facility to take vacations at the same time. The paragraph must be read in light of the over-all purpose of the entire Article 4, of which it is a part. After studying the conflicting arguments of the parties as to the meaning of the paragraph and the intention of the parties insofar as the conferring of rights is concerned, the referee has come to the conclusion that it was not the intention of the parties that Section (b) of Article 4 should supersede or nullify Section (a) of Article 4. Rather, Section (b) of Article 4 must be read in light of the general purpose of the vacation agreement; namely, that individual employees who qualify should receive vacations and they should receive them, whenever possible, subject to the requirements of the service, in accordance with their desires and preferences granted in seniority order. To that end, the parties provided in Section (a) of Article 4 for joint machinery to effectuate the granting of vacations on a cooperative basis. In Section (b) of Article 4 the parties recognized that there are instances in which, in the interests of efficiency, economy, and sound operation practices, group vacations should be granted. However, it would violate one of the obvious purposes of Article 4, when read in its entirety, to hold that the carriers must cooperate with the representatives of the employees when fixing vacation dates for individual employees, but that they can act independently when granting group vacations. It is the referee's view on this question that under Article 4 representatives of the carriers and of the employees are bound to work out together on this question a cooperative basis joint plans for the granting of vacations to individuals and to groups. The primary thing that the first paragraph of Section (b) of Article 4 does is clearly supported to make the granting of group vacations permissible under the agreement, when the granting of such group vacations would be in the interests of the requirements of service. It places the labor organizations in a position in which they cannot object to the granting of group vacations when it can be shown that such vacations are justifiable in the interests of the requirements of service. Further, when the first paragraph of Section (b) of Article 4 is read in connection with the second paragraph of the section it becomes clear that there is placed upon the shoulders of the labor organizations the responsibility and duty of cooperating with management in arranging their group vacations. However, the paragraph does not vest arbitrary power in management to grant group vacations as and when it pleases, irrespective of the desires and interests of the employees. It is true that there is plenty of room for doubt and conflicting opinions as to the meaning of the first paragraph of Section (b) of Article 4, but when it is read in connection with the entire article and in light of the complete record made by the preponderance parties on the issue involved, this referee is satisfied that his ruling is a fair and reasonable interpretation of the evidencepurposes which the parties had in mind when they agreed upon the language last December. Much He is convinced that his interpretation gives unity of what meaning to the article and will remove one of the principal sources of friction which has developed between the parties in administering the vacation agreement: The referee said feels that a statement of the spokesman of the employees, appearing on page 383 of the transcript, expresses quite well the view which should prevail in his decision on Question 2 interpreting and applying the paragraph: "We say the paragraph should be read as though it were written 'where the demands of the service and the desirer and preferences of the employees in seniority order in fixing vacation dates and taking vacations in spite of proper planning impair or prevent the proper functioning of a particular plant, operation or facility, then and to that extent Article 4 (b) should be utilized to supplement and to qualify 4 (a).' "We say that even where group vacations are given under 4 (b) that so far as the service requirements will permit the desires and preferences in seniority order of the employees who are to take their vacations in a group should be given due regard. "We say the primary obligation under the vacation agreement is to give vacations under 4 (a), therefore, planning with that purpose in mind is required." The following illustration was submitted by the carriers for a ruling by the referee: ''A bridge gang is assigned to take vacation from July 6th to Ilth inclusive, all employees being relieved. It is the carriers' position that this is permissible under Article 14 (b)." In light of the referee's foregoing interpretation of the first paragraph of Section (b) of Article 4, dealing it is clear that if the requirements of the service make it desirable, a bridge gang or, for that matter, shop gangs, section gangs, or any other group of employees in any plant, operation, or facility-could be granted their vacations at one and the same time. However, such an arrangement should be worked out in cooperation and consultation with Item G, "Time Paid representatives of the employees in accordance with the intent of Article 4 when read in its entirety. When making arrangements for Because of Suspension or Dismissal," is applicable here also. Suffice to say at this pointgroup vacations, the desires and preferences of the group as a whole should be given due regard, subject, of course, to the best interests of the service. Here again, no rule of thumb can be applied in solving such problems as the parties present by this question. The multitude of conflicting factors which are inherent in such problems will make the administering of a vacation plan break down unless the two parties to it cooperate in a spirit of "give and take" and cast aside demands based upon technicalities and suspicious motives. The parties should never forget that the primary purpose of the vacation agreement was to provide vacations to those employees who qualified under the vacation plan set up by the agreement. Any attempt on the part of either the carriers or the labor organizations to gain collateral advantages out of the agreement is in violation of the spirit and intent of the agreement. It must be recognized by the carriers that the vacation plan is bound to cost a considerable sum of money. Although they are certainly entitled to exercise all economies consistent with good and efficient management and to eliminate sources of waste in formulating their plans for administering vacations, nevertheless they cannot be permitted, in the name of economy, to adopt policies and practices which permit them to make savings at the expense of the workers who are not on vacation There runs through the entire record of this case evidence that the employees, rightly or wrongly, entertain the suspicion that some of the carriers, at least, seek to interpret and apply the vacation agreement in every way possible which will save money at the expense of the workers. The referee is satisfied that harmony between the parties will never prevail in administering the vacation system, no matter how many referee's decisions the parties obtain on disputed points, as long as such a suspicion exists. It can be removed only by the parties themselves reaching an understanding based upon mutual confidence. The referee believes that the position of the labor organizations on this question is not a realistic one, but rather constitutes a very strained interpretation of the following language first paragraph of Section (b) of Article 8: "whose employment relation with a carrier is terminated prior to the taking of his vacation." The position taken 4, as insisted upon by the carriers, is an example of an interpretation which stirs up fears and suspicions in the minds of the employees. On the other hand, there is certainly plenty in the record of this case which shows that the representatives of the carriers suspect the representatives of the employees of advancing technical and strained interpretations of the contract in order to seek advantages for the employees not intended when the agreement was adopted. One cannot read the record as submitted by the carriers without recognizing that the carriers suspect the employees of using the vacation agreement to gain additional financial advantages for the employees over and above the paid vacations themselves. The vacation agreement was not designed to xxxxxx a "make-work" program or provide hidden wage increases, and it is respectfully suggested that the representatives of the employees should do everything in their discussions of this problem, as set forth on pages 636 power to 672 remove from the minds of the transcript, appear to the referee to be highly technical, especially their insistence that the criterion which should be considered as controlling in determining whether or not employment has been terminated is loss of seniority. They argue that if an employee is reinstated or returned to work by the carrier following a dismissal without loss of seniority, then his employment status never was terminated. However, the argument entirely overlooks the fact that when a man is dismissed for just cause, it falls within the discretion representatives of the carrier to leave him off carriers the payrolls permanently or, as an act suspicion that any such motives lie back of leniency, to put him back on the payroll with seniority. However, it is such dismissal that constitutes the termination of employment; such an employee's return to service without loss of seniority, and in some instances also with all or part pay employees' proposals for lost time, is in fact an act of leniency by the carrier and in no way modifies or changes the meaning of "termination of employment relation" as it is referred to in Article 8 of administering the vacation agreement. The referee feels hesitates to make such comments, but he believes that counsel he would fail in his obligations to the parties if he did not do so, because of the fact that he is convinced that the cause of a large share of the differences which have arisen between the parties in interpreting and applying the vacation agreement grows out of their suspicions of the motives of each other. Then, too, such feelings between the parties are important factors which the referee cannot ignore in rendering his decisions of interpretation because of their bearing upon the surrounding facts and circumstances in the dispute. As he has endeavored to make clear elsewhere in this decision the language of the agreement of December 17, 1941, is for the carriers put most part language proposed by the problem rather effectively whenparties themselves. Much of it is not susceptible of an interpretation which will leave no room for doubt as to what the parties intended and meant. Much of it is ambiguous, on page 659 and understandingly so, when one takes into account the pressure under which the parties labored when they drafted it and, what is more important still, the fact that the parties were initiating a complicated vacation system to be imposed upon a very complex industry. However, the referee has always been impressed, and still is, with the good faith of the transcript, he stated : "Now, Mr. Referee, I will agree that this is a small thing parties and the situation with which we are confronted does not occur every day, but I find myself just in this position: "I think railroad managers are humantheir basic mutual respect for each other. I know from my own experience that they listen with care and consideration to leniency pleas. But what Xx. Xxxxx suggests, it seems to me, is simply this: that whenever from now on a plea is made for the reinstatement of a man, the man who gives it has to say to himself,'Here is a man who is guilty, his guilt was such as to justify discharge; I am asked as a humane matter to put him back I am willing to put him back, but I don't want to pay out fifty or sixty dollars of the company's money for the privilege or being humane.' "I would like to suggest this: I want men put back on a leniency basis where conditions justify. I do not want barriers erected towards the exercise of leniency by a railroad company. I do not want barriers put in the way of railroad officers being good to their men. I do not think that a railroad should be required to pay a price for the privilege of being good, and for the sake of the men about whom we are talking I would urge that the position of the organizations is just wrong. I do not believe that their attitude is one which will bring about humane treatment of employees who have been rightfully discharged, but whom the management feels should be put back on a leniency basis." The referee agrees in general with the foregoing quoted statements of counsel for the carriers, and he He is satisfied that it would not such differences as have developed between them over vacations are quite superficial, and, to the extent that they may exist after this award, they should be reasonable to give to Article 8 ironed out in negotiations between the interpretation parties conducted upon a "give-and-take" basis. Question No. 4: Meaning and meaning which intent of the employees would place upon it. However, when a suspension is given as discipline (as distinguished from a dismissal), the employee relation shall not be deemed to have been terminated within the terms second paragraph of Article 8 of the vacation agreement.4 (b). Carriers' Contention: The carriers interpret this article: