The Second Division consisted of the regular members and in
addition Referee Joseph M. McDonald when award was rendered.
SYSTEM FEDERATION NO. 57, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. 1. O. (Carmen)
THE NEW YORK, CHICAGO & ST LOUIS
RAILROAD COMPANY
EMPLOYES' STATEMENT OF FACTS: Carman Ellsworth Dillon hereinafter referred to as the claimant is employed by the New York, Chicago and St. Louis Railroad Company, hereinafter referred to as the carrier, at Fostoria, Ohio.
Claimant Dillon held a regular assignment on the 3 P. M. to 11 P. M. shift up to and including April 30, 1960. On this date carrier elected to abolish the position on the 11 P. M. to 7 A. M. shift held by Carman, Robert Walsh and Carman Walsh in turn displaced the claimant causing said claimant to have to move to position on repair track working 7 A. M. to 11 A. M. 11:30 A. M. to 3:30 P. M. on May 1, 1960, inasmuch as there were no carmen's positions on the 3 P. M. to 11 P. M. shift held by employes junior to him.
This dispute has been handled with all carrier officers designated to handle such disputes, including the highest designated officer of the carrier, all of whom have declined to make satisfactory adjustment.
The agreement effective October 1, 1952, as it has been subsequently amended, is controlling.
POSITION OF EMPLOYES: It is submitted to be the employes' understanding of the aforementioned agreement that claimant was changed from one shift to another effective May 1, 1960, within the intent and purpose of Rule 13, which reads:
It is also true that if there were any ambiguity in the rules (although the carrier believes the rules are clear) the issue must be decided in favor of the carrier on the basis of past practice and mutual interpretation thereof during the life of the present agreement and predecessor rules of the same import for more than 25 years (since June 1, 1935).
The employes have in conference referred to awards of the Second Division as a reason for changing the interpretation of the present rules as adhered to for the past 25 years. However the controlling rules may read on other properties, Rules 13, 16, 24, and the sample bulletin on Page 97 are peculiar to this Carrier, and the issue must be decided on the facts, circumstances, and the interpretation of those rules on this property. Awards 1816, 2356, 2615, and 3103, among others sustain the position of the Carrier that the claim is without merit under the controlling rules.
The proper and agreed interpretation of the controlling rules on this property requires the denial of the claim.
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.
This dispute involves the same Bulletin at Fostoria as was involved in Award No. 4277, and in fact the Claimant herein is the employe displaced by the Claimant Walsh in that award. This Claimant in turn displaced a junior employe on the first shift since there was no position for him on the second shift after he was bumped by Walsh.
The facts are parallel to Award No. 4277; the Rule and Carrier are the same as there, and what we said in that Award applies precisely here.
Under the unrealistic reasoning of the majaxity Rule 13 would have no meaning for the carrier would be free to force an employe to change shifts any time at its discretion and not pay overtime for such change. The first 4278-4 741