NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"(a) Claim of employees that Rule No. 2, Current Revised Agreement, requires mutual agreement on number of regular fall time and regular short shift employees in the Mail and Baggage Department of St. Paul Union Depot Company, St. Paul, Minnesota.
"(b) Claim of employees for a minimum of eight hours' pay each day, for senior short shift employees affected, when number of short shift employees worked on any day exceeds number of such employees mutually agreed to, retroactive to June 12, 1934."
EMPLOYES' STATEMENT OF FACTS.-In April 1931, the parties to this dispute entered into a Mediation Agreement providing for the regulation by mutual agreement between the parties of the number of regular short-shift employes to be used in the Mail and Baggage Department. In May 1931, a memorandum of understanding was agreed to, fixing thn number of regular short-shift employes that could be used. This ag,reevteut was amended by a supplemental agreerlr· lit hearing date of Match 28, 1933, which lattt~er agreement fixed the maxilarm nurr1bta of part-firm, employes at fifty-six (56). and carried a provision to maintain a spread of eighty (80) plea between the full-time forces and part-lime forces.
In June 1934, a dispute arose between the parties, caused by the carrier claiming tire right to increase the number of regular part-time or short-shift employes when the number of full-time employes exceeded 136. The two parties then attempted to reach .",mother supplementary agreement which would provide for a maximum rtnlnber of sixty (00) regul;!r part-time or short-shift employes, and to maintain a spread of eighty-one (81 ) men between full-time forces and part-limp forces. Leforc this agreement was definitely consummated, the General Superintendent attempted to amend it so that the maximum number of regular part-tiule or shoresllift employos could be increased mrtontatically, at any time the number of full-time forces exceeded the number specified in the agreement. Through this proposed amendment of the carrier it sought to establish a percentage agreement whereby full-time and hart-time employes would be maintained on a percentage basis of 70 percent full-time (eight-hour) and 30 percent part-time or short-hmlr employes.
The tentative agreement of August 3, 1934, was not consummated, and the carrier has, subsequent thereto, used as many part-time or short-shift employes as in Its judgment it found necessary, paying such employes only for actual hours used.
There are in evidence agreements between the parties bearing effective dates of August 1, 1924. and April 7, 1931, and the following rules thereof. are cited:
"(a) The purpose of establishing a short-hour list is to provide and establish the (1) maximum number of regular positions and eight-hour assignments and the (2) minimum number of short-hour assignments.
"NOTE (1). The phrase `ruaxfnmm number of means, as many as practicable.
"NOTE (2). The phrase `minhurm narni~r of' m·ans se few as conditions will permit.
shift or part-tine employes that the carrier lnny else, except and nnie,S the (-artier <ompen.'ares such excess elnploVes as are used with a ninimuln of eight hours pay per day- under the provisions of Rule 3:3.
POSITION OF l'AIMILR.--'flie catrh·l. contends the Illemoralaltlill of uuderctandIng of bfar<h 2e-, 13:7, elenrlc laoAded tot nlsialtaining it spread of 80 local bcltcn·ri the felt tinge and 7·r!rt tinn· fore(·s, which at tht· little of ngreenlelit collsh4(vl of 1.4; fall time and he- purl little forces.
OPINION OF BOARD.-to Ih(· socor:ll lull-, and agreements that have been cited lit support of this claim, and established and revised by mediation and conferelices between tile parties, both employ-" and carrier base their contentions particularly upon tile apifiealimi of Rule 2 of tile Mediation Agroenent of April 7. 1!131. :Ili(] tile snpideineininry agreement clfel,d into try- the p:lrtb·s oil May 4, 1931, together t<flt the supltleineutary :Igreenlrut of March 28, 1938, to tile agreemolten entered fflo be the pfirtie~ rn: April 7 :!,ill AIa) 4, 1931.
In tile application of 11111, I of the Mediation Agreement of April 7, 1f131, and the sulr,.cqtrt·nt 'applellielitaly n:;reinu(,nt between tht· p:lrth·..' oil \IaY--1, 1931, a lllcalln is onllilu·(I to hanfle Ih:· r;gillarlc re·llrrillg flncluatiolls of positiolln to lilt, fullest extent liossibte II?- ree:;lllar llllt-tinge (·ll1plopes; and, when all possible adjustment, of llli: kind lime been made and it n pln·rlls that Illere will still be liork eldeh cannot be handled by tan- reguh1r :assigned fall lime elllployeey tog Preah` :1 ~rltardliy gi'anp Iii feguuhir sl:ol't-Alift ellployes tit handle such retnafilder of Ill(, nark.
alt Rule 2 o: II <· A1t(,fl~atioll A;recnlei·t 1t mean: is oudn"d hp which the detcrmiunlion :ls to the manheer of regular full-tittle olliployes anti the slumber of elnphn-o" on tiler :(gliler :hors-s11ifi lint v, 1:: to b2 filed be inatunl agreement in liccordance with fu-tlull heeds: and which ('aid bt· Onlingedd by mutual agreelufllt 1D, fi'C(lnl'1111f lit lin,'llt I,,' ll(ft1Naty- tat 111e'L elnlllflarg cal,ditians.
Oil AAL:rch _:fl. 1:;93, a euttlaeancnhlr;: agr(·emeut to ill(, rigre(,nn·nis of April 7 nod Slay- 4. 19:91. kris vial,-red into by tyre pnrla,s to rn;iiu~tin a spread of eighty illen belh"·ell ttlll-ihne fol(·e' and isle hart-silo- folcp" l~hivll at ill,, tillle of tile agroonlent 11-as 13d fall-t;ille ;trll .-~8 Marl-ttrne cillploc-(·c, and in icMrll tire furtblr colatilioll was ln:lde that Ili(· lnalllwr of poll-tilllc elllployca slaelfied w:ls talc Snaaxlnnlal ilunlll,er flint f lnld Joe employed.
ill the suhlilissiml of tile carrier refcrenec is made to :t verbal agreement on dune 19. 11'24, its which :t cllallne v; as (lontelliplaled both in the mnnber of fulltinle and hart-tilue clllploves and tit the spread hetween tln·ae two elns.es. This agrernlent. holv(·cer. leas net ratified tlrul fliercfooe cannot be considered.
Iii Ill, pre,ont standing agrceillents between the panties :Is evidenced lot this outline the Board is confrolded with two outstanding facts, the one that the determination of the aunihor of regnlnr toll-tittle eniployes and tin, number of employee oil the short-shill list was to be fixed fly mnticil agrcmtlellt and which could ate cbailged 1r\ mutual ;tgfoccnlent ,is ffeoltently a,t might No necessary to meet chalighlg conditions.
Iii further connection with this rule fixed by the Allediation Agreement oilTile second fact confronting the IDonfd is that the supplementary agreenreat of blareh 28. 1033. while outlining n spread of eighty omit "between the full-tinge forces Gild tile part-time fore(".," limits that spread to tile lltlluber employed at the title of the :agreement, which was 13d full-time and 566 part-lime employes, and then goes oil to stab(, that old. onrnber, or 5d, was tile "Inaxilnim windier of part-lime ,nliffaces."
Ill the weodlng of thic ngremllent the carrier agrees to maintain a spread of eighty- men I·,tlvren the I'nrt-tiai·.· and full-time employes on the basis of the llumher employed at the title of the agreement: but while nothing ire the agrctnient limits the (,artier front incrousiag fire farces of full-time employe:. :t lililitati(tIl is ,.,tjlbjLsljcd so far lie the part time employes life concerned. ill the proviston of the agreement la ~hr ,ffeet that the miaber of lean-time eniployes specified. or ,C., was ill(, llwximlllll nnlbor of part-Nine employe, that could Ile employed.
Under the,(, -oodPiop, the fio:lrd (·:lralot a glee with the carrier as to tiny Conditions which could ill(,lo^;·(· Ile, nund~^r of part-time employes beyond the laaxinninu. (it ill,- grcator:t lloasillb· lainlb(·l. =pevdfied and estaldisilod in the c,llr pleln(,uttry mgreelnellt, exe(·pt it he lap mutual ncre(,ment tletwecn the parties.
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 employes involved in this dispute are, respectively, csrrier and employes 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
(a) That the Board sustains the position of the employes that the agreement of March 28, 1933, fixes the maximum number of part-time employes at 66; and
(b) That the claim of the employes for a minimum of eight hours' pay per day for senior part-time employes affected, when the number of part-time employee used were in excess of the maximum mutually agreed upon, shall be sustained, but limited in its retroactive application to senior part-time employes used subse· quent to February 1, 1936.