Award No. 1619
Docket No. 1491
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Carroll R. Daugherty when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 122, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Electrical Workers)
THE PULLMAN COMPANY
DISPUTE:
CLAIM OF EMPLOYES: 1. That under the current agreement the Carrier on February 1, 1951 improperly promoted Electrician J. A.
Kray who was in seniority position No. 13 on the 1951 Electrical seniority
roster.
2. That accordingly the Carrier be ordered to:
(a) Promote Electrician F. E. White who is a senior qualified
electrician to J. A. Kray.
(b) Compensate Electrician F. E. White the difference in pay
from what he did earn as an electrician and what he could
have earned as a supervisor, retroactive to February 1, 1951.
(c) Give Electrician F. E. White a seniority date as a supervisor
as of February 1, 1951.
EMPLOYES' STATEMENT OF FACTS: Electrician F. E. White, hereinafter referred to as the claimant, was in seniority position No. 4, and that
Electrician J. A. Kray was in seniority position No. 13, on the 1951 electricians' seniority roster of the Chicago West District, a copy of which is submitted herewith and identified as Exhibit A.
The carrier on February 1, 1951, promoted Electrician J. A. Kray to a
supervisory position.
The agreement effective July 1, 1948, as subsequently amended, is controlling.
POSITION OF EMPLOYES:
It is submitted that the action of the carrier
in the instant dispute is contrary to the provisions of the current agreement
as the claimant was the senior electrician, qualified for a supervisory posi-
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cuted by a carrier and its associated employes. This limitation of
the Board is bottomed upon the right of freedom of contract, sound
principles of jurisprudence, and common sense. The Board has no
authority to read into a contract that which its makers have not put
there expressly, or by clear implication. The Board has said so
many tirxies. As noted in Award No. 5288, page 3 (1st Division,
Hon. Edward F. Carter, Referee), the Board has no power to rewrite the contract or to relegate to itself the powers and duties of
the parties. And in Award No. 5396, page 8, (1st Division, Hon.
Robert G. Simmons, Referee): `In the absence of rules clearly establishing the right it will not be held that the carriers and employes
contracted to pay and to be paid two days' pay for one day's work.
In the instant case, the established practice followed, without objection, by both carriers and employes over a long period of time
supports the position taken by the carrier in the construction of the
cited rules.' Of course, repeated breaches do not abrogate a clearly
expressed contract provision, but where the contract is silent, or
the meaning of a provision is not clear, the long-continued practice
of the parties is most persuasive proof that the practice was within
the purview of the contract, and the intention of the parties. Such
practical construction of a contract should not be brushed aside by
any tribunal. This tribunal may only determine the question of
where the parties have placed themselves by their own agreement."
The company submits that the instant claim for the reasons above stated
should be denied.
FINDINGS:
The Second Division of the Adjustment Board, upon the
whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
The parties to said dispute were given due notice of hearing thereon.
Effective February 1, 1951, electrician J. A. Kray, number 13 on the
Electricians' seniority roster of the carrier's Chicago, Western District at
that time, was promoted to the position of temporary assistant foreman
in the Pennsylvania Yards of that District.
The Organization's claim is in behalf of electrician F. E. White, who
stood number 4 on the above-mentioned roster on the above-mentioned date.
Applying to the facts of the instant case the principles and reasoning
set forth in our Award No. 1600, we find no violation of the parties' agreement by the carrier here.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of
Second Division
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 7th day of January, 1953.