NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Jacob Seidenberg when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 100, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Machinists)
ERIE-LACKAWANNA RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the current agreement Machinist Edward F.
Gilroy was unjustly dealt with, when the Erie-Lackawanna Railroad
Company unjustly changed the regular bulletined hours from an 8
hour day, to an 11 hour day.
2. That accordingly, the Carrier be ordered to return this position, back to its' regular bulletined hours, and to reimburse Machinist
Edward F. Gilroy, 21/2 hours overtime rate for all hours worked
from first date of claim, also for Machinist William Devine, when
he covered vacation period of Machinist Gilroy.
EMPLOYES' STATEMENT OF FACTS:
Machinists Edward F. Gilroy
and William Devine, herein-after referred to as the claimants, regularly employed as machinists by the Erie-Lackawanna Railroad Company, herein-after
referred to as the carrier, at the Kingston, Pa., round house. Machinist
Gilroy is the only machinist on duty, (Machinist Devine covered vacation
period). This position was last advertised, May 27, 1959, as a machinist
position - hours - 6 :00 A. M. to 2:00 P. M. Machinist Gilroy bid in this
position, May 27, 1959 and was awarded same, June 2, 1959, and had covered
this position until February 14, 1962, when he was called into a meeting
with GYM Decker and Master Mechanic Robinson, who stated that the hours
would have to be changed, at this time, no agreement could be reached, so
Machinist Gilroy was informed, that starting February 19, 1962, the hours
would be, 6:30 A. M. to 9:30 A. M. and from 12:30 P. M. to 5:30 P. M. The
dispute was handled with carrier officials designated to handle such disputes,
who all declined to adjust the matter.
[226]
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233
"It is a fundamental principle of the employer-employe relation that the determination of the manner of conducting the business is vested in the employer except as its power of decision has
been surrendered by agreement or is limited by law. Contractual
surrender in whole or in part of such basic attribute of the managerial function should appear in clear and unmistakeable language."
To the same effect, the Third Division held in Awards 8218, 6877 and 5331
as follows:
Award
8218
(Johnson) stated:
"It is axiomatic that the Carrier has all management prerogatives not relinquished by Rules Agreements. Thus, if it finds
that a position such as Claimant's is required on regular work days,
but not on holidays and Sundays, it may establish such position unless prohibited therefrom by specific provision or necessary implication of the Agreement. If not, it could get the necessary work
done only by incurring wholly unnecessary expense and waste of
time. No provision of the Agreement has been cited or found so
requiring."
In
Award 6877
(Carter) the Board said:
"It is the function of management to make all such decisions
except as it may have limited itself by agreement."
In
Award 5331
(Robertson) it was held:
"Except insofar as it has restricted itself by the Collective
Bargaining Agreement or as it may be limited by law, the assignment of work necessary for its operations lies within the Carrier's
discretion. It is the function of good management to arrange the
work, within the limitations of the Collective Agreement in the
interests of efficiency and economy. There is no rule in the applicable Agreement which requires that work once assigned on an
overtime basis may not be assigned at straight time rates. Where
the Carrier can get the work done at straight time rates without
violating a provision of the Agreement it is within its province to
do so. * * *."
See also Third Division Awards
9259
(Weston);
6946, 6856
(Carter) ; 6944,
6943, 6839
(Messmore) ; 6917 (Coffey);
6711
(Donaldson);
6655
(Wyckoff);
6610
(Bakke) and
6602
(Sharpe).
CONCLUSION:
Based upon the reasons, facts and authorities contained in this record,
carrier submits that this claim, which is limited to the two (2) named claimants, 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.
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234
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Division must determine whether Rule 1 of the cognizant Agreement
reading in part: "Eight hours shall constitute a day's work" prohibits the
Carrier from changing a bulletined assignment for the claimant from one
where the hours were 6:00 A. M. to 2:00 P. M. to one where the hours become 6:30 A. M. to 9:30 A. M. and from 12:30 P. M. to 5:30 P. M.
The Division finds that the express language of the Agreement in Rule 1
does not deny or prevent the Carrier from properly instituting a split shift.
The Division is unable to construe the contract language in issue to read as
though it said "Eight
consecutive
hours shall constitute a day's work".
The Division believes that, in as fundamental a matter as Hours of
Service, the determination of the rights, privileges and limitations of the
parties affected thereby, must be derived from, and confined to, the express
contract language, absent any patent ambiguity, and should not be extended
or limited by the construction thereof.
Nor is the Division inclined to modify its findings as a result of the
Petitioner's citation of Rule ,107. The Divison can only conclude that the
aforementoned Rule merely prohibits the Carrier from requiring an eight
hour tour of duty to be operated in excess of an eleven hour span.
In summary, the Division finds that the claim cannot be sustained because it seeks to achieve a fundamental change in the express language of
the relevant agreement by means other than negotiations between the parties.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 26th day of June, 1964.