"Claim that seniority dating of Mrs. B. 1Carry, clerk at Black Rock N. Y., is December 16, 19.31, for the Combined Freight Stations roster of Buffalo District, and December 9, 1930, for Black Rock Freight Station proper, and that roster should be corrected to so indicate."
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The Carrier and the Employee involved in this dispute are, respectively, Carrier and Employee within file meaning of I he Railway Labor Act, as approved June 21, 1934.
This division of file Adjustment Board has jurisdiction over the dispute involved herein.
The parties to said dispute were given due notice of hearing thereon.As a result of a deadlock, Lloyd K. Garrison was called in as Referee to sit with the Division as a member thereof.
The parties have jointly certified file following statement of facts, and file Third Division so finds:
"In April 1'924 position of clerk was established at Black Rock freight station to handle milling in transit work. This position was under the jurisdiction of the New York Central but carried on Michigan Central Railroad payrolls and the salary was paid by them.
"Miss M. ('111, carried on the New York Central Black Rock freight station roster wit h seniority (bating of October 14, 1922, was first assigned to the position and retrained on it until December 1.924, when she resigned.
"Miss M. Brainard, also carried on the New York Central Black Rock freight station roster with seniority dating of July 23, 1922, was next assigned to the position on January 3, 1926, and remained on it until December 1530, when she resigned.
"Both the Misses Gill and Brainard were carried on seniority rosters covering New York Central Black Rock freight office employees during their entire period of service with the New York Central Railroad at Black Rock freight station.
"Effective September 16, 1930, the seniority rosters of Black Rock, Erie Street, Ohio Street, Carroll Street, and Louisiana Street (Buffalo) freight stations and Central Billing Bureau (Buffalo) were combined, forming a combined freight station seniority roster.
"The position in question was bulletined under date of December 1, 19:30, to employees at Black Rock freight station. Mrs. B. Worry, carried let the combined freight station seniority roster (formerly on New York Central Black Rock freight station roster) with seniority dating of May 17, 1923, wus assigned to the position by bulletin issued under date of December S. 1930.
'Effective December 16, 19:31, several Michigan Central positions at Block Rock yard, carried on separate seniority roslor, were consolidated with file Black Rock freight station force. Instructions were eissued on December 19, 1931 (Exhibit A), giving the incumbents of these positions seniority dating of December 16, 1931, on the combined station roster, with their original seniority dating at
Black Rock freight station proper. Mrs. Worry was included with these employees and promptly protested the datings given list. On December 21, 1931, further instructions (Exhibit B) were issued, giving Mrs. Warry her original seniority dating of May 17, 1923, on the combined freight station seniority roster."
There is in evidence au agreement between the parties bearing effective date of September 1, 1992, and Rules 15 and 17 have been cited, reading:
This rule will not apply to freight handlers or laborers until they have been in service six months.
The accredited representative of the employees in each district shall be furnished with a copy of the roster covering that district:."
While the evidence is not altogether clear, the indications of what happened are as follows:
When Miss Brainard resigned, giving rise to the vacancy in question. the representative of the employees asked the Freight Agent to change the position from one paid by the Michigan Central to one paid by the New York Central and included is the New York Central rules agreement. This the Agent declined to do, and tile representative then asked him to advise New York Central applicants for the position that anyone accepting the position would relinquish seniority in the New York Central roster. There is in evidence a letter from the representative to the Superintendent at Buffalo, dated December 27, 1931, referring to these understandings, and protesting the change in Mrs. Warry's seniority rating on the combined roster from December 9, 1930, to May 17, 1923.
There is some evidence to the effect that Mrs. Warty was informed that in accepting the position, her seniority would be affected accordingly, and that other employees in the office also knew this. It would seem that the Agent must have contemplated this result because he bulletined the vacancy only ill tile Black Rock station and only to the Black Beck employees, whereas all bulletins for New York Central positions after tile creation of the combined roster had, in accordance with the instructions of tile Carrier, been posted by tile superintendent at all points. IC is argued that the Agent was ill error, but the fact remains that he did what lie did, and wbat lie did is evidence of what lie thought. The bulletin Ito posted stated that the salary- was to be paid by the Michigan Central, and on December 19, 1931, the Superbitemdeiit at Buffalo issued a roster listing those who were Michigan Central employees on December 76, 1931, at the time of the consolidation of the Michigan Central forces with the New York Central force;, quit whose seniority, therefore, dated froill December 16, 1931. Mrs. Worry's name was included among these employees, and the Superintendent's information must have been obtained froin the Black Rock office. The Carrier asserts that the roster was erroneous, and it was,
in fact, corrected at Mrs. Warty's instance, but its issuance is further evidence of the way in which the position seems to have been regarded in the Black Rock office.
No result in this case can be fair to everyone. If the claim is sustained, Mrs. Worry's position will be prejudiced, but if the claim is denied, then the inetbod of bulletining the job at the Black Rock office only, will have prejudiced the rights of employees at other points by excluding them from knowledge of the position and from any opportunity to bid. And it is possible that, between December 9, 1930, and December 21, 1931, had Mrs. Worry been recognized and known as a New York Central employee, she might have been displaced by other New York Central employees with longer seniority in such job comractions as took place during that period.
Upon weighing all of these considerations, we thinly that the claim should be sustained.