The Second Division consisted of the regular members and in
addition Referee George S. Ives when award was rendered.
If the parties had intended to confine the duties of an "Exception" position to those named in the "Exception" paragraph, language readily could have been found to express such an intention.
In numerous awards, the various Divisions of the National Railroad Adjustment Board have held firmly to the principle that the burden of proof in a dispute of -this kind rests upon the Organization. One of the cornerstone awards bearing on this principle is Third Division denial Award 7362 (Larkin). In that Award the Board stated as follows:
Another award is Third Division denial Award 9633 (Johnson), in which the Board stated as follows:
Also significant in the instant case is Third Division Award 350 (Coffey), in which Award the following language appears:
In this submission the Company has shown that no violation of the "Exception" within Rule 22. Limited Starting Times of the Agreement was violated when the incumbent of the position was temporarily required to perform the additional duty of taking gravity readings. Further, the Company has shown that the provisions of Rule 42. Filling New or Vacant Jobs confirm the correctness of Management's position in this dispute. Rule 42 requires that the normal duties of a job shall be shown on the bulletin and that such bulletining procedure does not require that the miscellaneous duties associated with a job shall also be shown. Finally, the Company has shown the Organization has not brought forward sufficient facts to prove its claim that there was any violation of any contract provision in the matter complained of.
Inasmuch as there has been no violation of Rule 22 of the Agreement or of any other provision of any applicable Agreement, the Organization's claim in this case is without merit and it 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 incumbent of position SE-9 at Hialeah, Florida, and "Exception" position established under Rule 22 of the effective Agreement between the parties, was required to take gravity readings of the batteries on certain trains in addition to performing service such as station duty, precooling or incoming tests which are the only specifiied duties set forth in th.e"Exception" paragraph to Rule 22. Petitioner contends that Rule 22 of the Agreement was violated, and that Claimant Electricians were damaged as Carrier's action reduced the work opportunties available to them on a call basis outside of the regular bulletined hours. Accordingly, Petitioner requests that each of the employes named in the claim in succession be credited with 2:40 hours under Rule 33 of the Agreement for each date on which the violations continued.
Carrier contends that Rule 22 of the Agreement is concerned only with limited starting times and not the particular duties of various positions, including the duties assigned to the "Exception" position. Furthermore, the Carrier insists that Rule 42 of the Agreement is controlling as to the duties of bulletined positions, and that miscellaneous duties may be assigned to ,bulletined positions in addition to the normal duties thereof.
In the first instance, the record reveals that the disputed assignment was confined to the period between February 18 and February 25, 1966, inclusive. Consequently, only the first eight named claimants would be entitled to damages arising out of the alleged violation of Rule 22 of the Agreement by Carrier.
Rule 22 is entitled "Limited Starting Times" and is primarily concerned various starting times required in a Pullman yard to handle the work load in a satisfactory manner. The "Exception" paragraph enables the Carrier to negotiate with the Petitioner for the performance of certain service at starting times not provided for in the Rule, which starting times shall not be established between the hours of 12:00 midnight and 6:00 A. M. The particular services encompassed by the "Exception" are described in the following manner:
Carrier urges that only the starting times are subject to mutual agreement and not the duties assigned to the "Exception" position. Moreover, Carrier avers that the words "such as", which precede the specific duties set
forth in the Exception to Rule 22, are simply- used to introduce examples and are not restrictive.
Petitioner contends that if duties other than station duty, precooling or incoming tests are assigned to the incumbent of the "Exception" position, such duties must be like or similar to those specified in the "Exception" paragraph. Furthermore, Petitioner avers that taking gravity readings is not a service that can be considered as like or similar to station duty, precoolingor incoming .tests because the latter are all running repair work, whereas gravity reading on batteries is work performed in the service yard in connection: with scheduled inspections and repair of Pullman cars.
Analysis of the record reveals that it is commonplace for bulletins issued by Carrier in advertising vacancies to show the normal duties and also to include the following general words "and other duties as assigned." The bulletin posted on January 26, 1966, advertising the "Exception" position involved in this dispute, contains no such general words, but merely describes the particular duties specified in the "Exception" to Rule 22.
The presence of the words "such as" immediately preceding specified types of service in the "Exception" to Rule 22 clearly indicates that the parties intended to confine or restrict application to service of the same general nature or class as those types of service enumerated therein. This conclusion is further supported by the fact that the bulletin advertising the "Exception" position did not include the general words "and other duties as assigned," which normally are included in Carrier's bulletin advertising vacancies. Moreover, Petitioner avers that Electricians holding the "Exception"' position had never been required to take gravity readings inthe past, which is a duty regularly assigned to Electricians holding service yard positions. In view of the foregoing, we find that the doctrine of ejusdem generis is applicable, and that Carrier violated Rule 22 of the controlling Agreement.. Therefore, the claim will be sustained as modified herein.