The ,Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
DISPUTE: CLAIM OF EMPLOYES: 1. That The Pullman Company at Hoboken, N. J. violated the current Agreement when they furloughed Electrician Michael Stanich from position E2 with regular bulletined hours of 8:00 A. M. to 4:30 P. M. on Monday, Tuesday, Wednesday, Thursday and Friday and relief days Saturday and Sunday, and on June 1, 1963 they bulletined new Position E1 as a split shift, six hours per day, seven days per week with hours of 8:00 A. M. to 11:00 A. M. and from 5:00 P. M. to 8:00 P. M. This bulletin was posted without giving Electrician George Montaque any notice that his regular position E1 with hours of 8:00 A. M. to 4:30 P. M. was being abolished.
2. That Electrician Michael Stanich be recalled from furlough and assigned to position E2 with working hours of 8:00 A. M. to 4:30 P. M. Monday through Friday with relief days of Saturday and Sunday.
3. That electrician Michael Stanich be compensated at the pro rata rate for all the time he is prevented from working the hours of 8:00 A. M. to 4:30 P. M. on each Monday, Tuesday, Wednesday, Thursday and Friday and at the time and half rate for all services performed on his relief days Saturday and Sunday by electrician George Montaque, and all such time be credited to him for qualifying days for vacation. Also his premiums paid by the Pullman Co. during this period for health and welfare and death benefit.
4. That Electrician George Montaque be compensated at the pro rata rate for all time that he is prevented from working the hours of 8:00 A. M. to 4:30 P. M. on each Wednesday, Thursday, Friday, Saturday and Sunday; and at the time and one-half rate of pay for all services performed outside of these hours on his relief days Monday and Tuesday.
5. That electrician George Montaque be assigned to position E1 with working hours 8:00 A. M. to 4:30 P. M. on Wednesday, Thursday, Friday, Saturday and Sunday with Monday and Tuesday as relief days.
EMPLOYES' STATEMENT OF FACTS: That in the Erie-Lackawanna Terminal at Hoboken, New Jersey on October 28, 1962 The Pullman Company
Chicago, districts and agencies of The Pullman Company . . . wherein the work covered by this Agreement is performed." Also, the company has shown that Rule 21 (a), including the exception therein, is confined to electrical workers in districts and agencies of The Pullman Company and that "one-man points" as set forth in the rule refers to points encompassed by the scope rule of the agreement. The company has shown that the International Representative of the I.B.E.W. in the conferences preceding the consummation of the agreement defined a one-man point as a point "where one electrician is employed." Further, the company has shown that since the applicable agreement was consummated in 1948 it has proceeded under the agreed upon interpretation of the exception in Rule 21 and has established many such positions throughout the service. Finally, the company has shown that cornerstone Award 1684 (Carter), followed by denial Awards 1685 and 1686 (Carter) and 1968 (Donaldson), prove the correctness of the company's position that the agreement between the company and its electrical workers is applicable only to points specified in the scope rule where work covered by the agreement is performed.
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 claim is that the Pullman Company violated the Agreement at Hoboken, an agency, when it furloughed Claimant Stanich from position E2, which was an eight hour position, and bulletined El, which theretofore had been another eight hour position, as a split shift, six hours per day, seven .days per week. Michael Stanich, the occupant of position El prior to the change, 'bid the re-bulletined position.
The change was made under Rule 21(a) because the Pullman Company's electrical work at Hoboken had so decreased that it had become a one-man point; the one man now performs all the work formerly done by the two.
The claim is that the Company violated the Agreement by its action. The Organization contends that the first paragraph relates to districts and agencies, and that the second paragraph relates to "one-man points" other than "districts and agencies", and cites Award 4427 to that effect. But Rule 21(a) does not have two separate provisions,-one relating to "districts and agencies" and the other relating to "one-man points". It applies only to districts and agencies. Its title refers to "Districts and Agencies", and the body of the rule provides that:
The two provisions cannot possibly relate to two separate subjects. An exception to something cannot relate to an entirely different subject; and the three-fold use of the word "exception",-once at the end of the first paragraph of Rule 21(a), and twice in the second paragraph, together with the reference in the rule's title and body to "districts and agencies", serves to integrate the entire rule too completely for any ambiguity. "One man points" in Rule 21 (a) cannot possibly be divorced from "districts and agencies"; for it is an integral part of the rule, which as above noted, pertains to nothing but districts and agencies. Grammatically and in reason the entire rule says simply this:
It makes that statement as clearly as if it were all in one paragraph. There are not two paragraphs relating to different subjects.
The word "point" is not used in the Scope Rule and is not defined in the Agreement. But wherever used there it means "place" referring to work, and can relate only to working places included in the Scope Rule, namely "repair shops, mechanic shop Chicago, districts and agencies of The Pullman Company * * * wherein the work covered by this Agreement is performed". Award 1684, 1685, 1686 and 1968. Thus if not related and limited to "repair shops or to mechanic shop Chicago" it cannot relate to anything but districts and agencies of the Company.
In Rules 40 and 41, relating to seniority, "point" is used repeatedly as synonymous with "district" or with "repair shop, district or agency", to which seniority is confined by Rule 37.
Thus, even if the second paragraph of Rule 21(a) did not merely constitute "the following exception" mentioned in the first paragraph, we could still not conclude that "point" means something other than "repair shop, district or agency".
It is agreed that Hoboken is an agency. Consequently, if Rule 21(a), including the exception paragraph, is to be given its obvious meaning, it relates directly to Hoboken. On behalf of the Organization it is argued that the intent was otherwise; but in the absence of ambiguity or uncertainty this Board must ascertain the parties intent solely from the written Rule as adopted by them. 4730-14 904
Consequently, we can only hold, as the parties expressly agreed in Rule 21(a), that in districts and agencies the 8 hour day applies not absolutely, but "subject to the following exception", which they proceeded to set forth in the "Exception" paragraph.
The other intent claimed by the Organization is that the exception was to relate, not to districts or agencies themselves, but merely to other "points" included in them. There is no evidence that such points have ever existed. Award 1968 involved a claim that Akron constituted part of the Cleveland District and was therefore within the Scope Rule and the Agreement. The only evidence offered as tending to support that contention was a carmen's seniority list showing that three of the 41 carmen with Cleveland District seniority were working there, and that a list of "points" at which Company employes were working included:
"AKRON (Cleve.)"
and
"CLEVELAND
Akron."
This Division was unable to conclude from such showing that Akron was part of the Cleveland District and therefore within the Scope Rule and the Agreement. But even if such points were shown to exist, we could not construe the exception to "Hours of Service. (a) For Electrical Workers in Districts and Agencies" as relating only to them, since the contracting parties did not so specify.
Finally it is argued that Hoboken is not a one-man point because in addition to the one electrician there are two clerks, a car cleaner and an agentforeman employed there. The context of the provisions shows that its purpose was to permit a shorter split shift where the work could thus be done in less than eight hours by one employe in conformity with the requirements of the service. Certainly the presence of members of other crafts could have no bearing on that point, and was not within the contemplation of the parties when the provision was adopted. This is confirmed by the statement attributed to the Organization's International Representative during the negotiation, and not denied, that "Of course, by a one-man point we mean a point where one electrician is employed." ("Summary of Discussions in Conferences of the Management and Representatives of the I.B.E.W. on Organization's request for Rule Changes", p. 448).
Since the record shows that the changes complained of were made in accordance with Rule 21(a), and that the Agreement was not violated, the claim must be denied.
The majority in Awards No. 4730 and 4731 ignored the above quoted findings and the fact that the only other time that this issue was in dispute between the parties was in June 1960 when the Carrier established a one-man operation at their San Antonio Agency. A claim was filed charging violation of Rule 21. The Carrier on appeal of this claim did re-establish the two eight (8) hour per day five (5) day a week positions and paid the Electrician who worked other than an eight (8) hour day during the time that the violation was in effect.
For the majority to render a denial award they had to rewrite Rule 21 (a) as shown on page 3 of the Award.
The majority also refers to Awards 1684, 1685, 1686 and 1968 to support their position. If you check these Awards, you will find that the issue in dispute is a violation of Rules 2 and 5 when other than Pullman Electricians were used to perform work covered by the Agreement and not Rule 21 as is the case in this dispute. In Award 1684, the claim was that the Carrier violated Rule 2 and 5 when other than Pullman Electricians performed work on Pullman cars at Lincoln. The Carrier in that dispute took the position that Lincoln was not covered by the scope of the Agreement. The majority in that Award agreed with the Carrier. But in this dispute the Carrier on page 8 of their submission admits that Lincoln is a point covered by the scope of the Agreement. So it appears that the majority accepts whatever the Carrier submits even though they take two positions on the same subject matter.
The majority also accepted an alleged statement lifted out of context from the Carrier's notes. These notes have never been submitted to this Division, so it is impossible for the majority to determine what the alleged statement was intended for. Even so the majority had to rewrite the statement to interpret it as they did. The statement reads as follows:
This statement refers to a one-man point and not a one-man District or Agency. Therefore, the statement supports the Employes position and not the Carrier's.