"Claim of the General Committee of The Order of Railroad Telegraphers, Southern Pacific Company (Pacific Lines), that Telegrapher D. V. Cronin, regularly assigned to an advertised seven-day position in 'UN' Tucson, Arizona. be paid a day of eight hours for December 26th, 1932, and January 2nd, 1933, respectively (week-days observed as holidays), on which he was not permitted to work and his duties assigned to another regular ennployc hi the office."
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 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 parties to said dispute were given due notice of hearing thereon.As a result of a deadlock Willard E. Hotchkiss was called in as Referee and on request a second hearing was held on June 29, 1936, at which representatives of the parties argued the case before the Board with the Referee sitting as a member thereof.
The parties have jointly certified the following Statement of Facts, and the Division so finds
"Telegrapher D. V. Cronin was assigned as telegrapher in Tucson Office, assigned hours 8:00 A. M, to 4:00 P. M.; he was not used on Monday, December 26th, 1932, and Monday, January 2nd, 1933 (both being holidays)."
There is in evidence an agreement between the parties bearing effective date May 1, 1927, also of certain supplementary documents dated November 29, 1932, and Memorandum of June 9, 1933. The following rules have been cited:
"This schedule will govern the employment and compensation of the following: Agents, assistant agents and ticket agents incorporated in wage schedule, agent-telegraphers, agent-telephoners, agents, small non-telegraph; block operators, car distributors (if required to telegraph in the performance of their duties), drawbridge tenders (levermen), managers, punchers, staffmen, telegraphers, telephone operators (except switchboard operators), towermen, tower and train directors. and wire chiefs, and will supersede all previous schedules, agreements, and rulings thereon. In application of these rules, employees covered thereby will be considered as telegraphers."
"Regular assigned telegraphers will receive one day's pay within each twenty-four (24) hours, according to location occupied or to which entitled, if ready for service and not used, or if required on duty less than the required minimum number of hours as per location, except on Sundays and holidays
"A regular assigned telegrapher is one who is assigned to a position by bulletin."
"(a) Telegraphers will not be required to work oil holidays, except when necessary to protect the Company's interests.
"(b) Time worked on Sundays and the following holidays: New Year's Day, Washington's Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas (provided when tiny of the above holidays fall on Sunday tile day observed by the State, Nation, or by proclamation shall be considered the holiday), shall be paid for at the pro rata hourly rate when the entire number of hours constituting tile regular week-day assignments are worked.
"(c) When notified or called to work on Sundays and the above specified holidays a less number of hour, limit constitute a (lay's work within the limits of the regular week-day a.sagnlnent, oniployces shall be paid a minimum allowance of two (2) hours at overtime rate for (wo (2) Lours' work or less, and at the regular hourly title after the second hour of (-sell tour of duty. Time worked before or after tile limits of the regular weekday assignmoll( shall be paid for in accordance with overtime and call rules.
"(d) Where two or more telegralders are employed and the condition of service will permit, one telegrapher play be nse_d on alternate Sundays, except as provided for in Rule 20."
"(g) Senior extra telegraphers, when available and competent, will be used in preference to junior extra telegraphers. Senior extra telegraphers, not working will be allowed to displace either THE junior extra telegrapher on the division, or THE junior extra tldegraphor in general, relay, or dispatchers' offices at any time."
During discussion of the case, certain other rules havo been referred hl and there have been frequent references to past practlee with tile implication that such practice is substantially on a par with rates of the. agreement.
Petitioners contend that Role fi applies; that telegrapher Cronin was regularly assigned to position No. 4, first telegrapher, which teas a train order assiyalnlent; that train order assignments have invariably been considered seven-day positions where offices are open seven (lays. and the illconlbeota of such positions are entitled to fill the positions when they :Ire worked on Sundays and holidays within the limits of the week-day assignment. Petitioner also contends that priliter-mechaliician-assistaxit wire chief Kitchens, who performed Morse telegraph work oil the two holidays in question, did Dot pcrform tile regular duties of his assigned position but performed only tile Morse, telegraph work that Cronin performed on week-days, and further that Kitchens was supplanted in the performance of the duties of his position on these (lays by tin extra-unassigned puncher.
The carrier contends that [here arc no regularly assigned seven-day positions in this office. It submits iii evidence the bulletin upoll whlfll the position was awarded to Cronin, which does not state tbat the position was a train order position or that it was a seven-slay amigntltent. It fnrtber asserts that there were no train older assignments in tile "UN" office, that tile two Morse telegraph operators handled train orders and the general ran Of telcgraph luessages, and that the manager-wire chiefs, ;in([ print,·r-InYbanicialrassistalit wire chief also performed telegraph work; that on the days ill question it was necessary to fill Kitchens' position as printer-mel9uHlician-assistant wire chief ill order that the Morkrum printer machines might not be without attention for too long a period; and that Kitchens performed the duties of his reguhlrly assigned position on the days in question as well :Is the Morse telegraph work. The carrier further asserts that Morse telegraph work was part of the service regularly performed by Kitchens week days, and that Cronin',; po;,ition was not filled oil the days in question, and that since Kitchens was working his own position lie could not have been supplanted by the extra unassigned puncher.
Tucson. Arizona, where this dispute had its origin, is a division tolegraptl office in which. at the time the dispute arose, ;here were recular assigned employees
including manager-wire-chief, two wire chiefs, one printer-mecllanician-assistant wire chief, and two Morse telegraph operators. Morkrum printer machines were used in the office. Carrier submits that it was the practice to have the managerwire-chief, and the printer-mechanician-assistant wire chief operate Morse telegraph keys and do puncher work when not engaged with the specific duties of their assignments.
OPINION OF THE REFEREE.-Some of the pertinent facts are in dispute. These include the following: (a) The part that past practice should play in deciding the case is asserted by one of the parties and denied by the other; (b) the question whether Cronin was or was not oil a regular seven day assignment; (c) tile question as to some of the holidays and Sundays on which he did or did not work; (d) the question whether Kitchens was exclusively occupied during the days to which the dispute pertains with work which had been Cronin's work on other ~,'undays and holidays on which he was called for duty as well as oil week days, or whether he (lid some of that work fit addition to the work of his regular assignment as bIechanici;lil-Assishlnt-Wire Chief.
The Referee is disposed to apply the applicable language of the agreementAs the Referee interprets the language of the agreement and the purposes and policies of it which are applicable to the case the issue hakes shape somewhat as follows:
1. The agreement undertakes to give employees certain specific guarantees in respect to wages and working conditions.
2. The agreement undertakes equally to insure to management the cooperation of employees in all proper efforts to nallnge the business efficiently and well, which do not transgress the provisions of the agreement, nor encroach upon the rights of the employees as specified or reasonably implied in the terms of the agreement.
3. Finally the agreement undertakes to embody certain items of policy in roslass t to which the parties are in agreement or to which they tire both subject under laws and public policies governing their relations with each other.
1. Einplopecs' Guarantees.-The agreement guarantees employees that when regular telegraphers are ready for service and not used they will receive a day's pay e-ec;pt on Sundays and holidays-(Rile 5).
Role fi guarantees employees certain things fit respect to Sunday slid holiday work, to wit:
(al) They will not be required to work oil Sundays except when necessary to protect the company's interests.
(b) Work performed oil Sundays and on the seven specified holidays shall be paid for pro rata if employees work a full day.
(cl Employees notified or called for duty for less than a fall day on any of the above days shall be paid in accordance with Rules 6 (c) quoted above.
(d) Where two or more telegraphers are employed and conditions of service will permit, one telegrapher may be used oil alternate Sundays except as provided in Rife 20. (Reference will be made to this exception later in the opinion.)
All of tile above provisions are clearly intended to operate beneficially for the enlployees and it appears equally clear that one of the protections intended is protection against excessive Sunday and holiday work.
2. 1luna,gerial Responsibilities owed Hiphts.-Since responsibility for operating the bllsilless to which a labor agreement pertains is tile responsibility of management, labor agreements are usually less explicit in respect to guarantees enjoyed by management than they are in respect to those enjoyed by employees. Rules of agreelnellt, and of law governing the operation of a business are chiefly operative to restrict the freedom of action which management would otherwise Possess. But ill all agreements management retains the right and the duty to exercise judgment over a considerable part of its total activities. It goes without saying that all such residual or reserved powers must be exercised legally and so as not to tl:nlsgress the agreement either specifically or by reasonable implication.
A careful study of the agreement has convinced the Referee that the carrier, under the terms which run beneficially for the employees, is obligated to restrict Sunday and holiday employment of regularly assigned telegraphers as much as it consistently can. The Referee does not find in the agreement or in the laws which govern the relations between the parties any restriction upon management as to the exercise of its best judgment as to the Sundays and holidays on which it is essential to protect the company's interests to employ a regularly assigned telegrapher as distinguished from the Sundays and holidays when an extra ruaassigncd telegrapher may be employed instead. If management finds that on one Sunday or holiday the protection of the Company's interests requires the employment of em employee possessing a higher degree of skill and receiving a higher rate than is required on some other Sunday or holiday, the Referee can find nothing in the agreement to prevent management from acting accordingly.
However, the parties appear to be in agreement that an extra unassigned telegrapher should not be called to do work which is preponderantly the work of a regularly assigned telegrapher, but the language and spirit of the agreement indicate clearly that the Sunday and holiday work of regularly assigned telegrapher should be kept to a minimum.
In the same connection the parties apparently agree that regular telegraphers may perform other duties daring their regular assignments when there is not enough work on the regular assignment to keep them fully occupied. Unless it can be affirmatively shown that such supplementary work has become in fact the predominant work of 411 employee, it would not operate to change the designation of the regular assignment.
If it could be shown in any case that management had acted in a perverse, capricious, or obviously unfair manner, either in selecting an extra tmassigned telegrapher for Sunday or holiday service or in calling one regularly a=signed telegrapher rather than some other regularly assigned telegrapher, and had not exercised reasonable managerial judgment in Tasking a selection, the agreement by implication would doubtless support a claim for redress for any injury shown to have flown from such perverse, capricious, or unfair action.
The Referee finds in the instant case that the carrier has acted in a reasonable manner in calling a regular telegrapher who possessed a special type of skill for service on the days to which this claim applies.
3. Question of Policy Involved.-Discouragement and restriction of Sunday and holiday work by employees who work regularly on other days is a recognized and accepted item of public policy. It is an avowed policy of organized labor. It is specifically embodied in the agreement in two different sections of the rule cited by petitioners in support of their claim, to wit:
"6a. Telegraphers will not be required to work on holidays, except when necessary to protect the company's interests."
"6d. Where two or more telegraphers are employed and condition of service will permit, one telegrapher may be used on alternate Sundays, except as provided for in Rule 20."
The provisions of Rule 20 do not appear to conflict in any way with the above reasoning. It should be noted, however, that Section (j) of Rule 20 refers to first, second, and third wire chiefs having preference where telegraphers at several telegraph offices are required to work Sundays and holidays. While this phrase might appear to suggest that it is a privilege to work on Sundays and holidays, the 36 hour notice provided for in the same section and the provisions of 6a and Od have a different implication and one that accords with acknowledged policy.
In conclusion, the Referee finds that as a matter of public policy, of general union policy, and of policy reasonably deductible from the agreement between the parties, Sunday and holiday work should not be required of persons regularly employed on other days unless necessary, and persons regularly employed on other days should not expect to be employed on Sundays and holidays as a matter of right unless that right is shown to flow from the agreement.
Further, the Referee finds in accord with the above policy, management has the right and the duty to decide when work that has to be done on a Sunday or a holiday requires the service of a regularly assigned telegrapher possessing one type or degree of skill and when it can be done by a telegrapher possessing a different type or degree of skill, and when it can be done by an extra On-