B-143592, AUG. 26, 1960

B-143592: Aug 26, 1960

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THE ALASKA RAILROAD IS CORRECT IN REFUSING TO PAY COMPENSATION FOR ENGINEER-HOSTLER SERVICES AT CURRY. THE FACTS AND CIRCUMSTANCES UNDER WHICH THIS MATTER AROSE WERE PRESENTED TO US AS FOLLOWS: THE ACT OF MARCH 12. APPROVAL WAS GIVEN TO A LABOR AGREEMENT. WHICH IS ENTITLED "SCHEDULE OF PAY. " PROVIDES IN PERTINENT PART: "RULE 26 (B) TERMINAL HOSTLERS AND HOSTLER HELPERS WILL BE REGULARLY EMPLOYED AT THE FOLLOWING POINTS: "CURRY: ONE (1) ENGINEER HOSTLER "RULE 26 (C) HOSTLER. A "HOSTLER" IS A PERSON EMPLOYED AT A DIVISION POINT ON A RAILROAD WHO ASSUMES RESPONSIBILITY FOR THE LOCOMOTIVE AFTER THE CREW HAS COMPLETED ITS RUN. A "DIVISION POINT" IS THE POINT AT WHICH ONE TRAIN CREW IS REPLACED BY ANOTHER.

B-143592, AUG. 26, 1960

TO THE SECRETARY OF THE INTERIOR:

ON JULY 22, 1960, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER, IN VIEW OF THE PROVISIONS OF THE PERTINENT UNION AGREEMENT, THE ALASKA RAILROAD IS CORRECT IN REFUSING TO PAY COMPENSATION FOR ENGINEER-HOSTLER SERVICES AT CURRY, ALASKA, SINCE THE RAILROAD NO LONGER REQUIRES SUCH SERVICES AT CURRY AND HAS, IN FACT, DURING THE PERIOD IN QUESTION RECEIVED NONE.

THE FACTS AND CIRCUMSTANCES UNDER WHICH THIS MATTER AROSE WERE PRESENTED TO US AS FOLLOWS:

THE ACT OF MARCH 12, 1914, 38 STAT. 305, AS AMENDED, 48 U.S.C. 301 308, AUTHORIZED THE PRESIDENT TO ACQUIRE AND OPERATE THE ALASKA RAILROAD; "TO EMPLOY SUCH OFFICERS, AGENTS, OR AGENCIES, IN HIS DISCRETION, AS MAY BE NECESSARY TO ENABLE HIM TO CARRY OUT THE PURPOSES OF" THE ACT; "TO AUTHORIZE AND REQUIRE SUCH OFFICERS, AGENTS, OR AGENCIES TO PERFORM ANY OR ALL OF THE DUTIES IMPOSED UPON HIM BY THE TERMS"OF THE ACT; AND "TO FIX THE COMPENSATION OF ALL OFFICERS, AGENTS, OR EMPLOYEES APPOINTED OR DESIGNATED BY HIM.' BY EXECUTIVE ORDER NO. 3861, JUNE 8, 1923, THE PRESIDENT DELEGATED THE POWER TO THE SECRETARY OF THE INTERIOR TO OPERATE THE RAILROAD "IN ALL RESPECTS AND TO ALL INTENTS AND PURPOSES, THE SAME AS IF THE OPERATION THEREOF HAD BEEN PLACED BY LAW UNDER THE JURISDICTION OF THE SECRETARY OF THE INTERIOR.' PURSUANT TO THAT AUTHORITY, APPROVAL WAS GIVEN TO A LABOR AGREEMENT, EFFECTIVE MARCH 10, 1957, BETWEEN THE RAILROAD AND THE BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN AND THE BROTHERHOOD OF RAILROAD TRAINMEN. THE AGREEMENT, WHICH IS ENTITLED "SCHEDULE OF PAY, RULES AND REGULATIONS GOVERNING LOCOMOTIVE ENGINEERS, LOCOMOTIVE FIREMEN, CONDUCTORS, BRAKEMEN, BAGGAGE MEN AND HOSTLERS," PROVIDES IN PERTINENT PART:

"RULE 26 (B) TERMINAL HOSTLERS AND HOSTLER HELPERS WILL BE REGULARLY EMPLOYED AT THE FOLLOWING POINTS:

"CURRY: ONE (1) ENGINEER HOSTLER

"RULE 26 (C) HOSTLER, ENGINEER-HOSTLER, HOSTLER-HELPER ASSIGNMENTS SHALL BE FORTY (40) HOURS A WEEK, CONSISTING OF FIVE (5) CONSECUTIVE DAYS OF EIGHT (8) HOURS EACH, WITH TWO DAYS OFF IN SEVEN (7).'

A "HOSTLER" IS A PERSON EMPLOYED AT A DIVISION POINT ON A RAILROAD WHO ASSUMES RESPONSIBILITY FOR THE LOCOMOTIVE AFTER THE CREW HAS COMPLETED ITS RUN. A "DIVISION POINT" IS THE POINT AT WHICH ONE TRAIN CREW IS REPLACED BY ANOTHER. CURRY WAS A DIVISION POINT AND AN AGENCY STATION. AN ,AGENCY STATION" IS A POINT AT WHICH THE RAILROAD MAINTAINS AN AGENT FOR THE PURPOSE OF TAKING ON AND DISCHARGING FREIGHT, HANDLING RAILROAD COMMUNICATIONS, AND PERFORMING RELATED FUNCTIONS. CURRY WAS ABOLISHED AS A DIVISION POINT ON OCTOBER 5, 1958.

THE RAILROAD DECIDED IN 1959 THAT THE CURRY AGENCY STATION SHOULD BE MOVED TO TALKEETNA IN THE INTERESTS OF ECONOMY. CONSEQUENTLY, ON DECEMBER 26, 1959, ALL RAILROAD ACTIVITIES AT CURRY WERE ABANDONED. THE ENGINEER- HOSTLER WAS ADVISED OF THE CLOSING OF CURRY, EFFECTIVE DECEMBER 26, BY A NOTICE DATED DECEMBER 9, 1959. THE FACILITIES AT CURRY HAVE EITHER BEEN SOLD OR ARE IN THE PROCESS OF DISPOSAL. THERE HAS BEEN NO WORK FOR A HOSTLER TO PERFORM AT CURRY SINCE DECEMBER 26, 1959, AND NONE HAS BEEN PERFORMED.

THE UNION HAS REFUSED TO MODIFY RULE 26 (B) TO ELIMINATE THE PORTION WHICH LISTS CURRY AS A PLACE AT WHICH A HOSTLER WILL BE REGULARLY EMPLOYED. ON APRIL 21, 1960, THE UNION PRESENTED TIME SLIPS FOR HOSTLING SERVICES AT CURRY FOR THE PERIOD DECEMBER 26, 1959, THROUGH APRIL 21, 1960, MADE OUT IN FAVOR OF WHICHEVER "EXTRA BOARD" EMPLOYEE WAS FIRST CALLED FOR AN ASSIGNMENT ON THE PARTICULAR DAY. EIGHT HOURS OF WORK FOR EACH DAY IS CLAIMED ON THE TIME SLIPS. "EXTRA BOARD" EMPLOYEES ARE EMPLOYEES NOT ASSIGNED TO REGULAR DUTIES WHO ARE CALLED UP IN ROTATION FOR ASSIGNMENT TO SPECIAL TASKS WHICH NEED TO BE PERFORMED AT THE TIME IN QUESTION. WE UNDERSTAND THE EMPLOYEES WHOSE NAMES APPEAR ON THE TIME SLIPS WERE ASSIGNED TO AND PERFORMED EXISTING WORK FOR WHICH THEY WERE COMPENSATED ON THE DAYS COMPENSATION FOR HOSTLING SERVICES AT CURRY IS CLAIMED.

THE ALASKA RAILROAD IS AN AGENCY OF THE UNITED STATES. THE EMPLOYEES OF THE RAILROAD ARE EMPLOYEES OF THE UNITED STATES. THE AGREEMENT TO REGULARLY EMPLOY A HOSTLER AT CURRY WAS BASED ON THE GOVERNMENT'S NEED FOR SERVICES THERE SOLELY BECAUSE IT WAS A DIVISION POINT.

THE ISSUE APPEARS TO BE WHETHER THE AGREEMENT TO EMPLOY A HOSTLER AT CURRY IS CONTINGENT UPON A DETERMINATION BY THE ALASKA RAILROAD CONCERNING THE CONTINUED NEED FOR A DIVISION POINT AT THAT PLACE. WE BELIEVE THAT IT IS. RULE 26 (K) OF THE AGREEMENT PROVIDES FOR AN ASSIGNMENT OF SIX MONTHS FOR A HOSTLER AT POINTS WHERE HOSTLERS ARE REGULARLY EMPLOYED, EXCEPT WHERE THE MANAGEMENT AND THE REPRESENTATIVES OF THE MEN AGREE THAT THE VACANCY MAY BE FILLED BY A PERMANENT MAN. IN VIEW OF RULE 26 (K), THE EVIDENT PURPOSE OF THE AGREEMENT THAT HOSTLERS WOULD BE REGULARLY EMPLOYED AT THE POINTS NAMED IN RULE 26 (B) WAS TO PROVIDE FOR THE REGULAR EMPLOYMENT OF ONE PERSON AS A HOSTLER AT THOSE POINTS INSTEAD OF ASSIGNING MEN FROM THE EXTRA BOARD TO DO HOSTLER WORK AT EACH POINT. THE RULE WAS NOT FOR THE PURPOSE OF GUARANTEEING THAT THE GOVERNMENT WOULD EMPLOY AND PAY FOR THE SERVICES OF A HOSTLER AT POINTS WHERE THE NEED FOR SUCH SERVICES CEASED TO EXIST. FURTHER, WE FIND NO LEGAL BASIS FOR INTERPRETING RULE 26 (B) TO BE A WARRANTY THAT THE POSITION AT CURRY SHOULD CONTINUE PERMANENTLY. THE GOVERNMENT DOES NOT CONTRACT TO RETAIN ITS EMPLOYEES BEYOND THE TIME THEIR SERVICES ARE NEEDED. SEE STILLING V. UNITED STATES 41 C.CLS. 61, 66 (1906). ALSO, IT IS WELL ESTABLISHED THAT THE GOVERNMENT MAY ABOLISH A POSITION IN THE INTERESTS OF ECONOMY OR DISPENSE WITH SERVICES WHICH ARE NO LONGER NEEDED. SEE 26 COMP. DEC. 840; BROWN V. UNITED STATES, 67 C.CLS. 172 (1929).

NO AUTHORITY EXISTS FOR PAYMENT OF COMPENSATION FROM APPROPRIATED FUNDS TO EMPLOYEES WHO RENDER NO SERVICES IN RETURN THEREFOR, AND THE RAILROAD IS CORRECT IN REFUSING TO PAY COMPENSATION TO THE EMPLOYEES IN QUESTION. CF. 35 COMP. GEN. 639.