NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Cllaim of F. L. McKinney, furloughed clerk, for pay at the regular rate per day for December 18, 27, 28, and ?.9, 1934, account of not being called to fill temporary vacancy during the absence of Mr. .f. 91. Brown, who was the regular assigned incumbent of report clerk's position ht the Chattanooga Freight Agency."
POSITION OF EMPLOYES.-The employes contend that F. L. MCKamey was the senior qualified furloughed clerk subject to call to fill either temporary or permanent vacancies in clerical positions; that J. Dl. Brown was a regularly assigned report clerk, and on the days in question was off duty without pay; that F. L. A4cKamey should have been used on the position regularly occupied by Mr. Brown while Mr. Brown was o& duty; that the management violated the intent, purpose, and plain provisions of paragraph (g), Rule 20, in not assigning Mr. McKainey to fill the temporary vacancy for any day but December 17.
We contend that the following rules of our agreement with the carrier, hearing effective date of September 1, 1926. have been violated:
Rum 1. Scope.-These rules shall govern the hours of service and working conditions of the following employees:
"(3) Other office and Station Employees, i. e.. employees operatipg appliances or machines for perforating and addressing envelopes, numbering claims or other papers, adjusting dictaphone cylinders or work of a like nature, office boys, messengers, gatemen, and train and engine crew callers:"
"RI·IH 5. Promotion and vacancies-1n) In filling promotions, vacatxies, or new positions not filled by seniority, qualifications txxi~:g eqmll, prch·rence shall be given etnpioyeos in the services in the order of their service age, the appointing officer to be the judge, subject to appe:~l to the highest officer designated by the Company, to whom appeals may be male, whose decisions shall be final.
(b I Preference in promotion or retention in the.eervive on the respective Seniority Distrlcri shall be given to the emplo,-res who have been longes't
emi)loye" could choose whichever method they preferred, but that if the method of voluntary- laying off was chosen it would have to be adopted by all. The employees unanimously elected to voluntarily lay off without pay and each employee signed a statement in Ila, followitt;; form:
"'In consideration of the Southern Railway System deferring for the present the justified general reduction in clerical forces in the General Freight Office at Cincinnati, Ohio, the undersigned voluntarily agrees that during the months of July, August and September, 1930, and in subsequent months as are necessary, lie/she will voluntarily lay off one working day per week (the day so taken to be the day most eouvetuent to the management) without pay."'
The carrier contends that the instances cited by the employes of settlements :it Mainers Point and Spencer Trutsfer did not bivoh-e an analogous situation but was a protest of the employees against the use of extra clerks to an extent which they claimed was excessive and avoided the establishment of regular positions. With respect to the case at John Sevier Transfer, cited by the employees, carrier asserts that the claim arose in 192.1 before the current agreement became effective and at a time when there was no six-day guarantee rule in the agreement, and that the claim arose because clerical positions, authorized by a "floating authority" for the purpose of establishing three positions of cheek clerk which the agent might work as, and when necessary, were bulletined by the agent definitely as six-day positions, and the successful applicants for the said positions bid on them nqtb the expectation that they wont(] receive six days' work per week, and for that reason the claims were paid.
OPINION OF THAI BOARD.=The guarantee provision of Rule 20 (g) had its genesis in the National Agreement between life L'trited States Itailroad Administration fact the Brotherhood of Railway Clerks, effective January 1, 1920, !if which Agreement the guarantee appeared in Rule t3fi. Prior to that time, practically all clerical employees, or positions, were compensated on a monthly or weekly basis, and little Gti had far its purpose the cotivershnt of monthly and w(akly rates into daily rates. The rule said, in part:
"To determine the daily rate for monthly rated employees- multiply the monthly rate by twelve (12) anal divide by three hundred and six (sd6):"
Obviously, the intent of that rule was to determine the rates for positions, riot employees, for other rules of the same agreement stated, in part:
"Employees temporarily or permanently assigned to higher rated positions shall receive the higher rates while occupying such positions * * * (72.)"
"Nothing herein shall be construed to permit the reduction of days for employees covered by this rule (88) below six (G) per week, * * *."
This conclusion that the rule in dispute was intended to apply to positions is further strengthened by the interpretation placed on the word "employees" by carriers, the petitioners, and by this Division. in various rules of collective agreements. Rule 1 of the agreement between the parties lioreto provides in part:
"These rules shall govern the hour's of service and working conditions of the following employees."
The rule lists the employees covered. which endmaces Clerks, Clerical Workers, em, with some exceptions. Surely, the language of this rule is intended to apply to positions, not employees, for employees are changing, entering and leaving the service front day to day, and it was intetuled that the agreentcnt would cover the pasit9ous or work in a permanent way, until changed in the manner provided therein.
It ryas argued by a carrier in Docket (`I~129. Award No. 160. that the foregoing language covered employees, not position., and in answer thereto Referee
SI"This language, fairly construed, most certainly prohibits the carrier from removing positions front the operation of the agreement except in the manner therein provided. If the language in question does not impose this restrictive obligation upon tile carrier, then, indeed, the whole agreement is meaningless ;rod illusory."
"While the rule speaks of employees, when it provides for their regular assignments, this can only be to positions, out of which it plainly states they- shall be assigned to one day off out of seven."
The current agreement uses the words "positions" and "employees" syltmymoas]y ill other rules. As previously shown. it specifies "employees" only in little 1 which is the coverage rule, yet, in the "exceptions" to the rule, we find this language: "nor to other positions therein which Italy be agreed upon." lit the last paragraph of "exceptions". we find: "or the inclusion therein of positions not heretofore covered." In the "not(,", Rule 4, we find: "clerical positions covered by schedule." little 20 (c) says: "The transfer of rates from one position to another shall not be permitlevl."
We, therefore, believe that when positions not employees carry the rate of pay aloil the guarantees as to rates apl)ly to positions, the assigned days' work per week-the six-day guarantee-likewise applies to positions; that as lit other plovisious of the agreeuoelit, the word "oiriployces" us lisp(] lit tire title in question is synonymous with the word "positions" used throughout the agreement.
However, despite the eonclit"ion we have reached that the word "employes" :is used lit Rule, 20 paragraph (g) was intended to he synonymous with the word "positions", in view of the provisions of Rule 5 paragraph (e) we find it impossible to conclude that the employee, r. L. 1)IcK:uuey, leas entitled to be called to till the vacancy created by tire lempoiary absence of J. 151. Brown. Rule 5 paragraph (e) provides:
'"TPnlpmary vacancies of thirty (311) days or less, or temporary vacancies up to ninety (90) days when occasioned by the granting of leave of absence or absence on accuuut of sieuiess, will be tilled at tire discretion of tile officer in clnirge,°'
The role clearly states that vacancies such as the one involved here of thirty (:301 days or less, will be filled at the discretion of tire officer ill charge. It is our opinion that this rule gives to the carrier a privilege of elther filling such a vacancy or leaving it unfilled within its own sound discretion. It seems too clear for argument that the phrase "at the discretion of the officer in charge" gives the carrier such discretion and does not make it mandatory that the position be filled. It is unnecessary to cite authority in support of this conclusion. To hold otherwise would be to torture tile phrase as it now stands arid to give to the word "discretion" a meaning which is never given either by common usage or by regular definition or otherwise.
We therefore conclude that any arid all rights that the employees acquired with respect to the filling of vacancies under Rule 20 (g) were bargained away by virtue of the provisions of this rule, insofar as Rule 20 (g) has application to the facts of this case.
Although under our conclusion employe F. L. McKamey would have no right solely by virtue of the operation of Rules 20 (g) and 5 (e), there is a further fact not given a great deal of consideration in this case which, in the opinion of tile board, brings the claim of Mr. McKamey within the operation of Rule 5 (f), which provides
"In the filling of temporary vacancies by the extra clerks, they will work first in, first out, rotating regardless of their seniority standing. Clerks so obtaining extra service will remain thereon during the period of vacancy"
In the latter part of Rule 5 (f) it is provided that clerks who are called for extra service, "will remain thereon during the period of the vacancy." It seems quite clear that this provision gives to the employee who is called to fill a vacancy, a right to remain there in the position to which he is called, for the full period of the vacancy thereafter. There is nothing lit Rule 5 (f) giving
the carrier the right to retain such employee for a day or two and then remove him leaving the position again vacant. Rather the provision clearly requires that the carrier, if it calls an employee for extra service no matter if it is for one day after the vacancy has occurred, must keep that employee in that position from the day he is called until the day the position is restored to its former status and occupied by the regularly assigned employee. Thus, while there is no obligation on the carrier to fill such vacancy once an employee is called, no matter for what period of time, Rule 5 (f) compels the carrier to retain Such employee for the full period remaining of the so-called vacancy.
Our conclusion is that F. L. DleKamey having been called was entitled under Rule 5 (f) to remain for the fall period of the vacancy, and the management had no right thereafter to dismiss him prior thereto.
However, it is clear that the claim of Employee McKamey extends only to the right to have compensation antler the above conclusion for the period of the first vacancy. There eere two vacancies. One on December 17 and 18 and the other on December 27, 28. and 29. He was called for the first but not for the second. Therefore, lit,, elaim can be allowed only for December 18.
FINDINGS.-The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and Upon the whole record and all the evidence, finds and holds:
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:
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the circumstances in this case fully justify granting the claim of the employee involved for December 18th.
Ci;iim Sustained for December 18, in accordance with the views expressed in the opinion of the Board.
I dissent from the award in this case on the ground that it is an enlargement of the claim and the pleadings of the complainant employes; that it ignores and is inconsistent with the evidence, and that the opinion Upon which the award rests is strained, inconsistent, and illogical.
Under the caption "Position of Employes" we find this language: "we contend that the following rules of our agreement with the carrier bearing effective date September 1, 1926. lave been violated:" following which "Rule 1-Scope" is quoted in its entirety; "Rule 5-Promotions and Vacancies" is quoted in part, paragraphs (a) to (g), inclusive; from "Rule 20-Preservation of Rates and Employment" paragraph (g) is quoted.
The language introducing these rule quotations is not to be found anywhere in the record. The employes make no reference whatever to rule 1, Scope of the agreement, and they do not allege that it is involved or related to this case. The employes in the original submission of this claim to the Board, under the caption "Position of Employes," quote rule 5, paragraphs (a) and (f), inclusive. The quotation as it appears in the statement of their position is in no wise related to the subjoined paragraphs, and no direct or inferential reference is made to it, nor is there any charge that any of the provisions were violated, nor is paragraph (g) quoted or referred to anywhere in the original submission or elsewhere in the briefs or rebuttals filed by the employes. The only definite charge of a rule violation made by the employer is to be found in the original submission under the caption "Position of Employes," in the following language:
The only reference by the complainant employes to rule 5 occurs in their "Reply to Carrier's Rebuttal Evidence, Filed September 22, 1936," page two, in the following language:
'this language is not explicit as to the reference of Rule 5, but by inference from "the power of discretion" it deals with paragraph (e) of Rule 5.
In tile "Opinion of the Board" the referee traces the genesis of rule 20 (g) in the present agreement to rule 66 of the so-called National Agreement; lie states that rule 66 had for its purpose the conversion of monthly and weekly rates to daily rates, from which lie deduces that it is obvious that the intent of rule 66 was to determine the rate for positions-not employes, and in support of this intent he quotes portions of other roles of the so-called National Agreement.
After dissecting also rules 71, 72, and 74 of the National Agreement he says: "This conclusion that the rule in dispute was intended to apply to positions is farther strengthened by the interpretation placed upon the word `employer' by carriers, the petitioners, and by this Division, in various rules of collective agreements." (Emphasis added.)
One is at a loss to understand by what process of logical reasoning a cmtclusion could be reached with respect to "the rule in dispute" by dissecting the roles of an agreement discarded by the parties more than sixteen years ago, at which time they cast out of their agreement entirely the guarantee rule, 20 (g), here fit dispute. Certainly the quotations from rules 71, 72, and 74 of the National Agreement lead only to the conclusion that the words "employes" and "positions" were used with a meticulous regard to their literal meaning.
In the above-quoted paragraph the referee says that the conclusion is strengthened by the interpretation placed upon the word "employes" by carriers, etc., but a search of the records of this division does not reveal that carriers have ever contended for any interpretation of the word "employes" other than the literal one. He further refers to interpretations placed upon the word by this division, and we assume that the citations from Award 180 in Docket (`1129, and Award 336 in Docket CL-264, are in support of it, but a reading of the full awards will readily disclose that they do not justify the inferences apparently drawn from them; !it neither of them do the referees hold that the words "employes" and "positions" are used synonymously.
While it may be conceded that the word "employes" may be substituted for the word "positions," or vice versa, in some of the rules of the agreement, without destroying the sense, it would frequently be found to destroy the purpose. As an example, the substitution of "employer" for "positions" in rule 20 Ic), which the referee quotes as strengthening his contention that "posttions" and "employes" are used synonymously, would indeed render it "mcauingless and illusory."
in holding that the words "employer" and "positions," as used in role 20 (g) are synonymous, the referee completely ignores the history of this rule as set forth in the position of the carrier. Air agreement, negotiated by the parties, succeeded the so-called National Agreement oil June 1, 1921; it contained no guarantee rule. The first negotiated agreement containing a guarantee rule was the current one effective September 1, 1920. The carrier asserts that the language of rule 20 (g), differing from rule 60 of the National Agreement, was purposely employed for the purpose and with the understanding that it would apply only to regularly assigned employer-not positions. While this is denied by the complainant employes, the carrier submitted exhibits to show that during the entire period from September 1, 1926, to December 1934, it had been the practice to fill or not to fill regularly established positions temporarily vacated by the regularly assigned incumbent, and that this practice had gone
unchallenged during that entire period. Specific positions, file period of vacancies, instances running into the thousands, were cited in these exhibits, but they are cast aside us of no value in determining, by the action of the parties, file interpretation placed upon rule 20 (g). One can find no safer guide for the interpretation of the terms of a contract than that laid down by the court in the ease reported in IM southwestern 457, in which the following language was employed
Here we have a period of over eight years when harmony prevailed, with respect to the proper application of rule 20 (g), and yet, file referee, without icing confrmited with the necessity of interpreting ambiguous language and contrary to the usage under the rule, holds that "employes," as used, is synonymous with "positions."
Despite his conclusion that file word "employes," as used in rule 20 (g), wets intended to be synonyanous with the word "positions," the referee finds that the employes bargained away, by rule 5 (e), giving the carrier the right to fill temporary vacancies "at the discretion of the officer in charge," all rights that they acquired with respect to filling such vacancies under 20 (g). Such a conclusion is inconsistent in view of the fact that in the agreemoekt we encounter first rule 5 (e), reserving to the officer in charge file right to fill temporary vacancies at his discretion, and several pages further alt we find 20 (g), the six-day guarantee for regularly assigned employes. The record does not stow whether during the period between June 1, ll)21, and September 1, 7'026, rule 5 (e) was contained in the agreetuert, lint that is not material. If both rules carne into the agreement at the same time their arrangement confirms the carrier's contentimt a;^, to the interpretation of rule 20 (g). With this the language and interpretation of rule 5 (e) tire entirely consistent, but it is unreasonable to conclude, as the interpretation placed upon rule 20 (g) in this award requires, that the employes first agreed to 5 (e), placing it in the agreement, slid then agreed to 20 (g) with the expectation that the bitter upset the former. In view of file fact that no conflict can be found between these rules in the language in which they are written, but that they can be brought into conflict only by changing the language of one of them, it can scarcely be said that the referee has not indulged ht a strained interpretation.
While the referee finds that the claim of the ocnployes cannot be sustained under rules 20 (g) and 5 (e), he holds that the last sentence of rule 5 (f) entitles an extra employe, having once been used oil a temporary vacancy, to remain in the position for the full period of the vacancy thereafter. He states that not et great deal of consideration was given to rule 5 (f) in this case. Indeed, no consideration was given to it by the complainant employes further than to quote it. The rule in its context call in its relation to other rules in the agreement clearly deals with the matter of senorily rights of employes as between themselves, and it denies to extra employes the right to displace one another while filling temporary vacancies. Claimant )icKamey in the instant case had been called to fill a temporary vacancy in a report clerk's position on December 77, 1934. The same position remained vacant on December 18 but 31cKamey was not used of it. He claimed pay at the rate of the position for December 18 "account not being called to fill the temporary vacancy." Had the employes pill any reliance ii role 5 (f) it is improbable that the claim for DIc%amey would be "account not being called to fill-" but rather ":1ecottnt not being allowed to remain on the temporary vacancy," as to December 18 and account not being called as to December 27, 2,5, and 29. Emphasis is lent: to this probability when we consider that four claims were simultaneously presented to the Board; all of them were prosecuted under rule 20 (g), and all emphasis was laid by the claimant employes on that rule. In two of them, Do(kats CL-3.·-7 and CIr300, the claim could have been trained to invoke