(Advance copy. The usual printed copies will be sent later.)
t Form
1 NATIONAL RAILROAD ADJUSTMENT BOARD
Award No.6509
SECOND DIVISION DocketNo. 6320
2-N&rW-CM-' 7 3
The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:
( (Carmen)
(
( Norfolk and Western Railway Company
Dispute; Claim of
Emploves·
(1) That the Norfolk and Western Railway Company violated the Memorandum
of Agreement, October 29, 1957, when they promoted Car Helpers,-
` A. M. Littlepage and R. E. Parson to Upgraded Carmen# instead of
Carmen Apprentices, Donald D. Tawney and Robert N. Shreffler on
October 14, 1970.
(2) That the Norfolk and Western Railway Company be ordered to compensate
Carmen Apprentices Donald D. Tawney and Robert N. Shreffler for
October 14, 1970, eight (8) hours at Carmen's applicable rates of
pay, and thereafter until adjusted.
°
indings:
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. i
i
Parties to said dispute waived right: of appearance a t hearing thereon.
Claimants, Shreffler and Tawney, classified as Apprentice Carmen with in
service seniority dates of March 19, 1968 and August 1, 1968 respectively, were
promoted to Upgraded Carmen on December 1, 1969. Parson and Littlepage, classified
as Carmen Helpers with in service seniority dates of June 1, 1968 and April 16, 1969
respectively, were also promoted to Upgraded Carmen, Parson on June 1, 1968, and
Littlepage on April 17, 1969. In a reduction of forces by Carrier on July 23, 1970,
all faur employes were furloughed. Parson was recalled as a Carman Helper on September
24, 1970 and Littlepage on September 28, 1970. Shreffler and Tawney were recalled
as Carmen Apprentices on December 1, 1970. Shortly after, if not immediately
following their return to work, all four employes were assigned to Upgraded Cara~en
work and paid accordingly.
Form 1 Award No. 6509
Page 2 Docket No. 6320
2-N&W-CM-' 73
On page 8 of its Rebuttal to Carrier's ex-pa rte submission, Petitioner
states:
"The furloutth and recall are not being contested.
What is being contested is the Carrier's method of
upgrad"g Apprentices and Helpers before and
after the furlough, which action has obviously
_ caused the Claimants' monetary loss, and is in
direct violation of the October 29, 1957 Agreement."
(Emphasis supplied.)
We are at a loss in our effort to grasp the rationale underlying this
claim. If there was no breach of the Agreement with reference to furlough and recall,
on what caild there be found a basis for a finding of monetary loss suffered by
Claimants? Immediately upon recall they were restored to the Upgraded Carmen
classification.
a
The thrust of Petitioner's contention is that Carrier violated the
procedure of Paragraph 1 of the October 29, 1957 Memorandum of Agreement between the.
parties when it promoted Shreffler and Tawney to Upgraded Carmen upon their return
from furlough. If this position is valid, then it must follow that the restoration
of the Claimants to the higher classification was equally viola tive of the terms of
the referred to Agreement. The only remedy would then be to demote all four of
the employes to their regular classifications and renew the process of joint selection
"by the General Chairman and Local Management" of Apprentices and Helpers for
Upgrading; at best a futile gesture, even if this were proposed by Petitioner,
which it was not. It is noted that Petitioner may not, at this late juncture, and
indeed it did not clearly, protest the Upgradings of Parson and Littlepage in June-,
1968 and April 1969 respectively.
With the assent of the Petitioner, it must be held that Parson and
Littlepage were properly recalled on September 24 and September 29, 1970. Rule 8 (D)
of the Controlling Agreement, effective September 1, 1949 provides
"In restoring forces the Company will call furloughed
men in the order of their seniority (senior men to be
called before junior men) and will return them to their.
former positions if Rossible; ..." (Emphasis supplied.)
Paragraph 8 of the October 1957. -Memorandum of Agreement reads:
"8. In reduction of force for any cause, a pprettices,
helpers, and non-qualified carmen temporarily promoted
to positions of mechanics will be reduced before
qualified mechanics are laid off and all such reductions
shall be in reverse order of their promotion." (Emphasis.
supplied.)
r'
Form 1 Award No.
65(9
;e 3 Docket No. 6320
2-N&W-CM-' 73
It would appear from the quoted provisions of the Controlling Agreement
and the Memorandum that the intent of the Parties was to restore recalled employes
to the position they were in when furloughed, if possible; and that some seniority
status in the upgraded position be afforded those promoted. Carrier's action was
consistent with these concepts.
Petitioner relies heavily upon this Division's Award 4708. The facts
of that case were summarized as follows:
"The Organization states that five Claimants were~preperly
upgraded on June S, 1962 in accordance with the terms of
Article III of the New York Agreement of June 4, 1953.
Thereafter it alleges that the Carrier violated the above
named Article III when it demoted the Claimants to their
Classification of Carmen Apprentices and Carmen Helper
respectively and proceeded to recall five furloughed Carmen
Helpers to the service as upgraded Carmen in place of the
five demoted Claimants."
No such situation exists herein and therefore the matter is clearly
distinguishable and the holding therein is not applicable hereto.
A W A R D
1
Claim denied.
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
Attest:
,~,,~
Executive Secretary
Dated at Chicago, Illinois, this 31st
day of May,
1973.
i
i
LABOR
MEMBERS' DIS
Sa 2-i T TO AWARD NT0. 6509,
DO
CKET 170 .63 20
The majority recognized the fact that upgraded carmen
apprentices Shreffler and Tawney, as wall
a5
upgraded carmen
helpers
Parson and
Littlepage, were furloughed on duly 23, 1970.
The Employes agree that this was in accordance with Paragraph 8
of the October 29, 1957 Memorandum of Agreement.
'Me majority also recognized the fact that
Parson was re
called as a carman helper September 24, 1370, and Littlepage was
recalled as a carman helper Septcn:~:ber 28, 1970. Shreffler and
Tawney were recalled as carmen apprentices December 1, 1970.
Shortly after all four employes were recalled, they were
promoted to upgraded carmen. The Erployeg agree that the recalling of Parson and Littlepage as carmen helpers, and Shreff ler
and Tawney as carmen apprentices, was in accordance with Rules
7 and 8(D) of the controlling agreement. However, at this
point the Labor Members of this Board part company with*the
majority, i.e., the promoting of
carmen helpers to upgraded
carmen before carmen apprentices.
The majority tried to justify their position by saying:
I
1. it is noted that Petitioner may
not, at this late
juncture, and
indeed f
it did not clearly, protest the tipgradings
of Parson and
Littlepag$ in June,
1968 and
April 1969 respectively."
i
The majority-was furnished awards of this Board dealing
with practice. Awards 1898 and 2210 read in part:
"Consent and practice cannot be considered as an agreed
interpretation of
the rule, since the rule is too plain
to require or permit such interpretation. 1
Award t,,o. 4591 reads in part:
"Past practice does not now estop the
organization from enforcing a contractual,
provision."
i
The contractual provision of the agreement, in the in- i
I
scant case being paragraph 1 of the October 29, 1957 1-1erroran-
dum of Agreement, reads:
"1. in the event of not being able to
employ Carmen who have had four
(4)
years
experience at. Carmpn's work, regular and
helper apprentices will
be
selected jointly
by the General
Chairman and
Local Management
to be promoted to positions
of
Carmen. If -
more carman mechanics are needed, helpers
will be jointly selected as indicated above ,
- to be promoted to positions of carmen
mechanics."
It is clear that in 1968, 1969 and 1970, the Carrier did
not comply with paragraph 1 of said agreement
in
that regular
i
apprentices were not promoted and/or upgraded
before carmen
. I
helpers.
Also, the
General
Chairman was not consulted, as provided
by paragraph 1 of the October 29, 1957 Memorandum of Agreement. -
2: The majority tried further to justify their position
by Rule 8(D) of the controlling agreement reading:
2 -- (DISSENT 2'O AWARD CIO. 6509)
f
,I
" (D) in. restoring forces the Corpany
will call furloughed men in the order of
their seniority (senior m ten to be called
before: junior
men) and will return them
to their former positions if possible;
and in particular:
"*
* * and will return there to their
former positions if possible; * * *."
in relying on Rule 8(D) , the majority overlooked Rule 7.
This Board has
held that a labor agreement must be construed
as a whole. In
Award No. 4130 it
was stated:
"*
* * Moreover, it is generally recognized
in the law of labor relations that a labor
agreement must be construed as a whole.
Single words, sentences or sections cannot
be isolated from the context in which they
appear and be
interpreted literally and j
independently, irrespective of the obvious
or apparent intent and understandz ng of
the parties as evidenced by the ENTIRE
agreement. Stated differently, the meaning
of each sentence or section must be de-
termined by reading ALL prtinent sentences,
or sections together and coordinating them
in order to accomplish their evident aim.
See: Frank Elhouri and Edna A. Elkouri,
HOW Ap.BI`IRATION ::ORBS, Revised Ed., waishing
ton, D. C., Bi4A Incorporated, 1960, pp. 207
. 208 and cases cited therein."
Therefore, in reading Rule 8(D) in conjunction with Rule
7, Rule 7 reading in part:
"(A) '(1) All employees governed by this
agreement shall have their
Seniority
es-
tablished as of
the date of 'beginning ser
vice: their seniority shall be
confined to
' one classification
in
their respective
crafts at the
respective points
where they
are employed; * * *.
- 3 - (DISSENT TO AWARD NO. 6509)
(2) Classifications within the various
crafts shall be as foll oc:s: -
CLASSIFICATIONS
Craft' IzLechanics Helpers Apprentices
Carmen's Carmen Carmen Carmen
I
(Locomo- helpers apprentices"
tive and
f
Passenger; I '
and
I
Freight)
it will be found the only seniority Parson
and
Littlepage had
f
was that of carmQn helpers. Shreffler and Tawney's seniority I
was that of caxar<en apprentices. 'a"here is no provision
in Rules '
?, 8 or any other rule(s) of the agreement that provides for `
promoted carman helper or
promoted carman apprentice
seniority
rosters. Therefore, for any one of these employes to return
' f
to their
status of an upgraded carrvan, they rust
have been
upgraded in accordance with
paragraph
1 of the
October 29,
i
i
1957 Memorandum of Agreement, i.e.: First, regular and helper
i
apprentices. Second, if note mechanics are needed, helpers to
I
be promoted. Third,
if promoting regular
and
helper apprentices
and helpers do not provide sufficient men, then under paragraph 6 of said memorandum of Agreentent, provides that men who
have had
experience in the use of tools may be employed. All
r - 4 - (DISSENT TO AWARD NO. 65Q9)
of the above to be done jointly by the General Chairman and
local Management. In the instant case the-provisions of the
heretofore agreement was not complied with.
Therefore, 'Award No. 6509 is palpably erroneous.
·' W. O. Rearn
D. S. tinderson
E. (sT: rnlaeswert
a f
E. J/ McDermott
. f~ A.a
G. R. DeHague
r
i,
5 -- (DISSENT TO AWARD NO. 6509)
I