"Ex parte submission of Brotherhood of Railroad Trainmen, Southern Pacific (Pacific Lines) requesting that the position of Cafe Car Steward trains Nos. 50 and 53 be bulletined for seniority choice and a steward assigned thereto; also Steward or Stewards losing time through this failure, be fully compensated therefor."
"Trains Nos. 50 and 53 operate between Oakland Pier and Fresno, the consist including a 'Cafe Car.' An employee other than a designated Steward from the Stewards' seniority roster is in charge of the car; this despite the several requests of the B. of R. T. on this property for placement of a Steward thereon. This employee, other than Steward, works as follows:
"It is and has been the practice of the Carrier, for many years, to assign a w;uter-in-charge to a cafe car operating in a run where the volume of traffic is normally insufficient to ,justify the assignment of more than one or two employees, including a waiter-in-charge to perform the duties and responsibilities involved in the handling of the dining room section of said car; and, on the other hand, it is and has been the practice to assign a cafe car steward to a cafe car operating on a run where the volume of traffic is normally sufficient to justify the employment of more than two employees to perform the duties and responsibilities involved in the handling of the dining room section of such car.
"The assignment in question involves the operation of cafe coach No. 10300, which ran daily from Oakland, California, to Fresno California, in Train No. 50, and from Fresno to Oakland in Train No. 53, from February 2, 1936 (on which date the ran was established), until December 13, 1936. Effective December 13, 1936, said car has operated from Oakland to Fresno in Train No. 50, and from Fresno to Oakland in Train No. 55. Dinner is served in Train No. 50 enroute, Oakland to Fresno, and breakfast and luncheon are served in Train No. 55 enroute, Fresno to Oakland (breakfast only was served between Fresno and Oakland when this car operated in Train No. 53). During the year 1936 this car served an average of 11.5 patrons per day for dinner in Train No. 50, and 3.4 patrons per day for breakfast in Train No. 53. During the period January 1 to February 15, 1937, an average of 11.5 patrons per day were served for dinner in Train No. 50, and average of 2.4 for breakfast and 3.7 for
"Waiters-in-charge are represented by the Dining Car Cooks and Waiters Union, and as evidence of such fact we are submitting a copy of a mediation agreement signed on April 4, 1929, by representatives of said Cooks and Waiters Union, the Southern Pacific Company, slid the U. S. Board of Mediation, such agreement being known as `Mediation Agreement (Case 379):
"If an award is made granting the request of the Petitioner, it will require the Carrier to abolish positions designated as waiter-hrcharge, and, furthermore, it would result in the assignment of one class of employees to perform service heretofore recognized as assignable to another class of employees, thus depriving one class of employees the right to assignments as reflected by the mediation agreement.
"The representative of the Cooks and Waiters Union has protested, to thu Carrier, against any action being taken toward changing the existing plan whereby waiters-in-charge are placed in runs in accordance with existing policy, as described, and requests that his organization be given the privilege of presenting a brief and of giving oral testimony, in behalf of the class of employees who would be affected by such action, before any decision shall be reached. A photostatic copy of a written protest, dated August 6, 1936, is submitted as a part of this brief.
"The Carrier requests the Board to dismiss this case for lack of jurisdieUon and to deny the request of the Petitioner on the following grounds:
"A. The existing agreement, effective July 1, 1936, between the Carrier and the Brotherhood of Railroad Trainmen, relating to pay and regulations of Dining Car and Cafe Car Stewards, does not abrogate the right of the Carrier to exercise ail accepted practice of long standing wherein, tinder certain definite circumstances, a waiter-in-charge is assigned to a cafe car.
"B. The existing agreement is Dot in conflict with past practice, therefore said past practice is still legally in effect and not subject to change except under the procedure prescribed in Section 6 of the Amended Railway Labor Act.
"(:. The existing agreement does not provide the conditions tinder which cafe car stewards shall be used; it merely prescribes the rate of pay applicable when cafe car stewards are used.
"D. The Carrier has entered into all agreement with the Dining Car Cooks and Waiters Urdon. representing employees oil the Carrier's lines, whereby the position of waiter-in-charge is recognized and a definite rate of pay established; therefore, if the request of the Petitioner is grailted, in the Obscure of tile third party, nainely, the Dining Car Cooks and Waiters Union, such action would result fit impairment of the obligation of contract, and an award in favor of tile Petitioner would have no legal force or effect, and could not legally be enforced by the Carrier:"
OPINION OF BOARD.-The issue in this ease involves the request of petiBoner that it position of cafe car steward in Trains 50-53-55 be bollelitled for seniority choice of stewards, and a steward assigned thereto, slid for compensation for stewards not used in this service. The evidence of record does not sustain the claim of the employees fit this case.
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 Employees involved in this dispute are respectively carrier and employees 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 agreement of July 1, 1936, does not sustain the claim of the employees.