Award No. 4731
Docket No. 4660
2-PULL-EW-'65
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 122, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Electrical Workers)
THE PULLMAN COMPANY
DISPUTE: CLAIM OF EMPLOYES: 1. That the Pullman Company at
New Haven, Connecticut violated the current Agreement when they abolished
position No. El with regular bulletined hours of 8: A. M. to 4:20 P. M. on
Wednesday, Thursday, Friday, Saturday and Sunday and relief days Monday
and Tuesday and assigned M. Cass to work six hours a day seven days a week.
And furloughed Electrician V. Bellizzi, who held position E3 with duties of relieving position El on Monday and Tuesday.
2. That Electrician V. Bellizzi be recalled from furlough and assigned to
position E3 with working hours of 8: A. M. to 4:20 P. M. on Friday, Saturdays, Sundays, Mondays and Tuesdays and Wednesdays and Thursdays as relief days.
3. That Electrician V. Bellizzi be compensated at the pro rate rate for
the time that he is prevented from working the hours of 8: A. M. to 4:20 P. M.
on each Friday, Saturday, Sunday, Monday and Tuesday and such time credited
to him for qualifying days for vacation. Also his premiums paid by the Company during this period for the health and welfare and death benefits.
4. That Electrician M. Cass be assigned to position El with working hours
of 8:00 A. M. to 4:20 P. M. on Wednesdays, Thursdays, Fridays, Saturdays and
Sundays and Mondays and Tuesdays as relief days.
5. That Electrician Cass be compensated at the pro rate rate for all time
that he is prevented from working the hours of 8: A. M. to 4:20 P. M. on each
Wednesday, Thursday, Friday, Saturday and Sunday; and at the time and onehalf rate of pay for all services performed outside of these hours and on his
relief days Monday and Tuesday.
EMPLOYES' STATEMENT OF FACTS: That in the New York District
at New Haven, Connecticut April 27, 1963 The Pullman Company in accord
with Rule 21 established two electrical positions with working hours of 8: A. M.
to 4:20 P. M., five days per week each with two relief days. These two positions were bulletined and assigned to Electricians M. Cass and V. Bellizzi in
[909]
4731-14
922
We are not convinced by such evidence that the organization has
proven thereby that Akron is in fact a district or agency within the
meaning of the Scope Rule. In respect to the carmen's seniority roster,
the agreement of that craft is not before us and we are not called
upon to pass upon the effect of the list produced except to say that we
attach no significance to it herein. No similar showing is made in Tespect to the electricians' roster which substantiates the company's
assertion that it maintains no force of Pullman electricians at Akron.
Its representation that it has not done so for a number of years is
not convincingly challenged.
Finding that Akron, Ohio, was not a district or agency, our prior
Awards 1684 and 1686 are controlling and the claims must be denied."
Thus, there are four denial awards of the Second Division that hold that any
electricians' work arising outside the scope of the Pullman agreement is not
covered by the rules agreement between the company and its electrical workers. These awards prove beyond question that the rules of the Pullman Agreement apply to electricians' work arising only at points that come within the
scope of the contract. It follows, therefore, that the exception in Rule 21 (a)
has application only to a situation occurring within a district or agency. Finally,
it follows that the company properly applied the provisions of the exception
within Rule 21 (a) in the establishment of a 6-hour 7-day per week position at
New Haven, Conn. on June 8, 1963.
CONCLUSION: In this ex parte submission, the company has shown that
the Pullman electrical workers' agreement is applicable to the points specified
in Rule 1. Scope of the agreement: namely, "the repair shops, mechanic shop
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.
The organization's claim is without merit and 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.
4731-15
923
Parties to said dispute were given due notice of hearing thereon.
This claim is essentially the same as that in Award 4730, except that it
involves electricians at New Haven Yard, to which the electrician's work
formerly performed in the yard of the New York District was transferred.
The Organization contends that by the transfer of work the New Haven
Yard became an agency within the New York District; the Carrier answers
that the New York district was discontinued because of the New York Central's assumption of sleeping car service over its local lines, but agrees that
the electrical work in New Haven Yard is work of the former New York District, and that electricians of that district followed the transferred work.
The Organization contends, as in the claim concerned in the award above
cited, that the Exception clause in Rule 21(a) does not apply to districts and
agencies, and that the Carrier's action was therefore in violation of Rule 21(a).
For the reasons stated in that award the contention cannot be sustained. The
Carrier's action was in accordance with Rule 21(a) and not in violation of the
Agreement.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Charles C. McCarthy
Executive Secretary
Dated at Chicago, Illinois, this 21st day of May, 1965.
DISSENT OF LABOR MEMBERS TO AWARDS 4730 AND 4731
This same issue was before this Division in Docket No. 4362 which became
Award No. 4427. The same arguments were advanced by the parties and were
considered in detail as the findings in Award No. 4427 read as follows:
"Positions MP 65 and MP 66 were established in November 1958
and occupied respectively by the Claimants-Electricians G. D. Harding and A. B. Hamill-at the Carrier's Agency at San Antonio, Texas.
These were 8 hours a day-5 days a week positions with the following work schedule.
MP 65-7:30 to 11:30 A. M.-12:00 noon to 4:00 P. M.
Tuesday through Saturday
MP 66-7:30 to 11:30 A. M.-12:00 noon to 4:00 P. M.
Friday through Tuesday
On June 17, 1960, the Carrier abolished the above positions and
established one position-MP 67-with the following work schedule:
8:30 to 11:30 A. M.-12:00 Noon to 3:00 P. M.-Seven days a
week.
Following the Organization's charge of a violation of Rule 21, the
4731-16
924
Carrier reestablished the two positions (MP 65 and MP 66) on July 7,
1960, and paid Mr. Harding for 32 hours at straight time ($82.82) in
settlement of his claim. Mr. Hamill was either on vacation or working at Houston, Texas, from June 16, 1960 to July 7, 1960 and, therefore, he received no compensation as he suffered no loss of earnings.
The Claimants' positions again were discontinued-with the close
of business January 10, 1962,-when the Carrier again established a
single, six hours a day, seven days a week position at its San Antonio
Agency.
On January 31, 1962, Claimant Harding, filed a claim of protest
against the Carrier's action. His claim was
denied on February 18,
1962.
On February 21, 1962, the Claimant withdrew his claim and on
February 23, 1962 the Organization filed a claim on behalf of the
Claimants-which claim has been progressed to this Board.
The Organization's position is that:
1) The claim submitted on January 31, 1962, was withdrawn because it "was very brief";"
"2) The second claim, dated February 23, 1962, which the Committee submitted in place of the first claim, went "into detail regarding the violation";
3) contractual provisions do not bar Organization's actions-as
set forth in items 1 and 2 above:
4) San Antonio is an Agency and not a one-man point, therefore,
paragraph (a) of Rule 21 is herein the applicable portion of the rule
and not the Exception to paragraph (a) as the Carrier contends;
5) Rule 2, of the pertinent agreement, which in part, provides
that outlying points or stations must "be mutually agreed upon," supports the Organization's position, namely, "that points as listed in this
Agreement was (sic) not intended to be a district or an agency";
6) also when the Carrier first abolished the present Claimants'
jobs in 1960-and established one six hours a day, seven days a week
job-it (Carrier) recognized the Organization's protest by reestablishing the two positions and by properly compensating the Claimant
who suffered a loss of earnings;
7) the present claim is identical to the 1960 claim and it is
therefore, obvious that the Carrier again violated Rule 21.
The Carrier's position is that:
1) after the Carrier denied the first claim on February 18, 1962,
the Claimant withdrew his claim on February 21, 1962, and the Organization then filed a second claim on February 23, 1962, on the same
alleged violation, therefore, the present "claim is improperly before
the Second Division and should be dismissed";
2) The second claim added only "the names of the two claimants
4731-17
925
and a request for monetary adjustment", otherwise it "is the same
claim in substance and in fact" as the first claim;
3) the "Organization is here attempting to escape such denial by
the Company" * * * "by the resubmission of the identical claim
which it now has progressed to the Second Division for adjudication";
4) the 1960 case is different from the present one because it was
"obvious that there was an increase in business which justified the
re-establishment of the two 8-hour daily positions, effective July 7,
1960";
5) in the present case-because of the substantial decline in traffic-"the service of an electrician is not regularly required for a full
8 hours daily in San Antonio";"
6) "The claim is illogical in that it concedes under point 1 that
one electrician is performing the same duties as formerly were performed by two electricians" and yet the Organization "requests that
the two electricians' positions be re-established".
7) one-man points "as used in Rule 21 has reference to districts,
agencies and outlying points where only one electrician is employed";
8) the Carrier's action did not violate Rule 21 but was strictly in
keeping with the exception to Rule 21 (a).
The pertinent parts of the Rules cited by the Parties are as
follows:
Rule 1. "NOTE: Wherever the term `district' appears in this
Agreement it is understood to include districts, agencies and the mechanic shop Chicago."
Rule 2. "At stations or outlying points (to be mutually agreed
upon) where there is not sufficient work to occupy the full time of
an electrician he may be assigned to and will perform other duties to
the best of his ability."
Rule 21.
"Hours of Service. (a) For Electrical Workers in Districts and
Agencies. The bulletined hours of service for employes in districts and
agencies shall be eight consecutive hours per day * * *, 5 days
per week; i.e., 40 hours per week, subject to the following exception:
Exception: At one-man points where the service of an employe
is not regularly required for a full 8 hours daily, scheduled work
shall be established to conform to the requirements of the service.
* * * This exception shall not apply where it is possible to arrange the force to conform to an 8-hour day."
We have studied and evaluated the entire record as well as the
pertinent rules in this case. The arguments and facts advanced by the
Parties in support of their positions-do not require individual analysis
and disposition, because they-in many-tend to overlap. Accordingly,
we will deal solely with the principal points involved in this dispute.
4731-18
926
First, there is no doubt that San Antonio is an Agency, because
the Carrier has so stated in the record. Furthermore, our reading of
the pertinent rules leads us to the conclusion that a one-man point is
not an Agency or District. To hold otherwise-would mean that the
Exception to Rule 21(a) is meaningless and unnecessary and we do not
believe it is.
Second, we can find no provision or rule that would bar the Organization from withdrawing one claim, even after it had been denied,
and substituting a more specific and exacting claim in its place."
"Third, it cannot be disputed that the Carrier has the right to
abolish jobs when diminishing work loads justify such action. It is
true, in this dispute, that the electricians' work load at the San Antonio
Agency had been greatly reduced. However, the Board is convinced
that, because San Antonio is an Agency and not a one-man point, that
the Carrier must be governed by Rule 21(a)-which pertains to Districts and Agencies-and not by the Exception to Rule 21(a)-which
pertains to one-man points.
Consequently, when the Carrier established position MP 67 at the
San Antonio Agency, it was compelled to do so on an 8 consecutive
hours a day, 5 days a week basis. Inasmuch as the Carrier failed to do
so, it violated the controlling Agreement.
Accordingly, the Board rules that at the Carrier's San Antonio
Agency an electrician or electricians may only be employed 8 consecutive hours per day, 5 days per week. It is, therefore, mandatory that
the Carrier compensate Claimant Harding in accordance with the demands set forth in Part 3 of Organization's claim."
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
4731-19
927
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:
"Of course, by a one-man point we mean a point where one electrician is employed."
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.
Therefore, the claims should have been sustained.
C. E. Bagwell
T. E. Losey
E. J. McDermott
R. E. Stenzinger
James B. Zink