NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Claim of Dennis Sherman, Class A Helper, in the Stationery Store at San Francisco, California, for pay for each and every day since September 27th, 1934, that he has been required to work less than six days per week."
STATEMENT OF FACTS.-Dennis Sherman is regularly assigned to the postion of Class A Helper in the Stationery Store at San Francisco, Cal. Since the date of institution of this claim, September 27, 1934, he has been required to lay off, without pay, on Saturday afternoon of each week. The rate of pay of this position is $4.58 per day.
There is evidence an agreement between the parties bearing effective date of February 1, 1922, and the following rules thereof are cited:
"These rules shall govern the hours of service and working conditions of the following employes subject to the exceptions noted below:
"(2) Other office, station, and store employes such as office boys, messengers, chore boys, train announcers, gatemen, baggage and parcel room employes, train and engine crew callers, operators of certain office or station appliances and devices, telephone switch board operators, elevator operators, office, station, and warehouse watchmen and janitors.
"(3) Laborers employed in and around stations, storehouses, and warehouses.
"(a) Clerical workers.-Employes who regularly devote not less than four (4) hours per day to the writing and calculating incident to keeping records and accounts, rendition of bills, reports, and statements, handling
of correspondence, and similar work.'"(b Machine operators.-Employes who regularly devote not less than four (4) hours per day to the operation of office or station mechanical equipment requiring special skill and training-such as typewriters, calculating machines, bookkeeping machines, dictaphones, and other similar equipment.
"The foregoing definitions, paragraphs (a) and (b), shall not be construed to apply to:
San Francisco been classified under and allowed the guarantee provisions of Rule 3 of Clerks' current Agreement.
The Stationery Store, Annex (A), San Francisco in which Dennis Sherman, ,the Claimant, was and is employed, is a separate and distinct department, therefore is not a part of any division organization and/or district store organization in the Stores Department; it is a separate seniority district, and it should be
·observed that no agreement was entered into nor arrangements made to place Class A Store Helpers in Stationery Store Department, Annex (A), San Francisco, under the guarantee provisions of Rule 3 of Clerks' current Agreement, and as heretofore stated, said Class A Helpers in said Stationery Store Department have never been classified as entitled to the guarantee provisions of Rule 3, neither have we, prior to the presentation of this claim by representatives of the Organization, beginning with December 27, 1934, received any claim and/or request from representatives of the Organization to so classify these employes, 'nor any indication that it was the contention of the Organization that these employes are within the purview of that Rule.
In the presentation and handling of this dispute, at no time did representatives of the Organization include the Stationery Store at Annex (A) in San Francisco.
The Carrier prays the Board to deny the request and claim of the Petitioner for the specific reasons as set forth by the Carrier in Section 1 of this brief, also based on evidence submitted by the Carrier in Subsequent sections of this brief, and in exhibits which accompany the brief, all of which prove conclusively that Class "A" Store Helpers in Stationery Store, Annex (A), San Francisco, are not included within the provisions of Rule 3 of Clerics' current agreement; that said rule has not been applied to such employes on this property at any time; that in the original submission as made by the Organization it was not contended by the Organization that Class "A" Store Helpers, Stationery Store Annex (A), of San Francisco, should be classified under said Rule 3. and no request teas made by the Organization at that time nor at any time subsequent thereto until the presentation of this instant claim, to have said helpers included within the provisions of Rule 3; that if the Petitioner's request is granted, it will in effect, establish a new rule without following the procedure set up in Section 6 of the Railway Labor Act, and would therefore- be in violation of said Act.
OPINION OF BOARD.-The question of the jurisdiction of this Board was finally conceded by both sides at the hearing held and therefore it is unnecessary to discuss the objections originally made thereto.
The next question which should be considered is whether or not Rule 3, by its terms, embraces the position of Class A Helpers in the Stationery Store at San Francisco, and whether therefore, the employe involved herein is entitled to the benefit of the guarantee provision contained in Rule 3.
Whether or not this particular position is within Rule 3 depends upon the construction of Rule 1, hereinbefore quoted, which defines those entitled to the benefit of the rules of the Agreement and excepts those who are not entitled. We do not agree with the contention of the carrier that to conclude in favor of the employee in this case would be to make a new rule. In our opinion the question is solely one of construction. Only an interpretation of Rule 1, in connection with Rule 3, is asked. The particular question is whether or not this Class A Helper position is within the provisions of Rule 1. If so, the employs occupying this position is entitled to the benefit of the guarantee provision of Rule 3. Whether or not this position is within Rule 1, depends upon the terms of said Rule. If Rule 1 does not include, by its terms, this Class A Helper, then the employe is not entitled to file benefit of Rule 3. In the latter case this Board can only deny the claim of the employe. In the former ease the claim must be sustained. Neither result has the effect of adopting a new rule but is merely interpreting the present rule.
In our opinion the Class A Helper in the Stationery Store at San Francisco is clearly within the Scope Rule (Rule 1) and is therefore entitled to the benefit of the guarantee provision of Rule 3. We believe that it is clear that some of the work done by the employe occupying this position is clerical work within the meaning of subdivision 1 (a) of Rule 1. A list of these duties is as follows:
However, we are compelled to the conclusion that this employee is a store employe within the meaning of sub-division 2 of Rule 1, which has been quoted herein. The fact that this employe who works in a Stationery Store is a store employe is so evident as to require no extended discussion.
That ail employe who occupies the position of Class A Helper in a Stationery Store is not a laborer within the exceptions to Rule 1, is also so clear as to require no argument.
The fact that the position involved herein is carried on the payrollls as an hourly rated position instead of a daily rated position is not significant. Rule 3 has two provisions: (a) that positions covered by groups 1 find 2 of Rule 1, are to be paid on the daily rate basis and (b) that positions covered by groups 1 and 2 of Rule 1 are guaranteed six days' pay per week except in case of holfdays. In our opinion the first provision cannot be construed to be a condition precedent to the second provision. The only condition precedent to the application of tile guaranteed provision in Rule 3 is that the position must be embraced by the groups defined in sub-divisions 1 and 2 of Rule 1. Therefore, the fact that the carrier carries the position in question oil ail hourly rate basis oil its payrolls d(x·s not remove the position from the application of the guarantee provision of Rule 3.
The only question remaining is whether or not the negotiations carried on between the representatives of the employees and the representatives of the carrier amounted to a modification or au amendment of tile application of the two pertinent Rules (1 and 3).
The negotiations referred to consist principally of an interchange of correspondence which is contained in the records as Exhibits 1-2.5.
The carrier contends that as the negotiations dealt with Class A Helpers in District and Division Stores only, and as the Stationery Store in which Employe Sherrnall is employed is under neither classification, lie must necessarily he excluded from the benefit of any agreement reached and therefore is not entitled to the benefit of the gnarmiteo provision of Rule 3. The argument of tile carrier proceeds on tile theory that only those Class A Helper positions specified in the negotiations can be given the benefit of Rule 3.
The employees, on the other hand, deny that any agreement for amendment or modification of the Rules was reached and moreover contend that even if air agreement had been reached such agreement could not supersede the effect of Role 3, beealise the procedure followed was not tile proper procedure for a change in the Rules.
Ii is unnecessary to decide whether or not any agreement to modify or amend existing rules reached as a result of negotiations conducted in the manner in which these were conducted would be effective.
In our opinion Exhibits 1 25 do not show any agreement reached with theMoreover, it appears that the particular Class A Helper Position involved heroin was omitted by tnadvertenee or oversight, from the correspondence that wos Parried on by the representatives of tile employes and the representatives of the carrier. There seems to be no substantial reason why this particular Class A Hefner position should hove been placed in a different eategnrv than the other Class A Helper positions concerning which the parties negotiated.
In our opinion the Exhibits referred to do not establish the fact that an agreement was reached between the parties to change the existing rules so far ns tills liartienhr position is involved. The exhibits rather show that lieaotbfioo9 were carried forwnrrl with a view of reaching nn agreement or iinrlrrstanding which was never folly consummated. Respecting certain matters the parties were in accord, there were however numerous questions oil which they never d°rl agrer. There is nothing in this record on which to base a finding that the parties agreed that this particular Class A Helper was not to be Ponsid-
ered within the guarantee provision of Rule 3. The record, insofar as Exhibits 1-26 are concerned, is devoid of any reference to this position. In view of these facts we cannot conclude that it was the intent of the parties to reach any agreement which would exclude this particular position from the operation and benefit of the provisions of Rule 3.
:1 change in the Agreement between the employer and the employes must be made in a proper fashion by fully authorized representatives of the employes and of the carrier. There should always be a clear intention expressed to modify, amend, or forego application of existing rules. This board should act with caution and should not find that a change in the rules was intended to be made unless that agreement is certain in its terms and clearly indicates an intention to modify the rules. To take a contrary view would be to weaken the binding effect and authority of existing Agreements between the carriers and the employes.
In our opinion the record falls far short of establishing a change in the Rules as interpreted and therefore the claim of the employes must be sustained.
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 employe involved in this dispute are respectively carrier and employe 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 Class A Helpers are within the provisions of Rules 1 and 3 of the existing Agreement and therefore are entitled to the benefit of the guarantee provision of Rule 3.