NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
George E. Bushnell, Referee
STATEMENT OF CLAIM: "Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Pacific Company, Pacific Lines that George Edwards be compensated at 88%¢ per hour for relief service performed by him on the following dates: 1938-July 8th, 4 hours; July 29th, 4 hours; August 5th, 7 hours; August 26th, 4 hours; August 28th, hours; September 16th, 8 hours; October 12th, 3 hours; October 13th, 8 hours; October 27th, 8 hours; November 16th, 8 hours; December 24th, 8 hours; 1939-January 17th, 8 hours; January 20th, 8 hours; January 28th, 8 hours; February 4th, 8 hours; March 4th, 3 hours. On all dates in question, Mr. Edwards relieved a regularly assigned employe whose rate of pay was 88122 per hour."
EMPLOYES' STATEMENT OF FACTS: "Telegrapher (Printer-clerk) George Edwards performed relief service on the dates set forth in the Statement of Claim, relieving telegraphers holding regular assigned positions as set forth in EXHIBIT 'A,' this submission. For this relief service performed, Edwards was not paid the hourly rate that the men he relieved received. The men Edwards relieved drew .885 per hour while Edwards was paid only .70 per hour.
"There is an Agreement in effect between the parties to this dispute, dated, as to rules and working conditions September 1st, 1937, and as to rates of pay, May 1st, 1927, revised July 1st, 1930, and August 1st, 1937."
POSITION OF EMPLOYES: "EXHIBITS 'A' to 'I' inclusive are attached to and made a part of this Brief.
"This claim is filed and prosecuted under Rule 4 (b) of the agreement in effect, which we quote:
"The Carrier ignores Rule 4 (b) and relies upon Section (e) of that certain Memorandum of Agreement negotiated and dated September 5, 1929, which pertains to the operation of duplex and multiplex automatic tape printer machines. We quote the Section:
applies. This, notwithstanding the fact that the character of the duties of the position is the same. This clearly demonstrates again that the proper rate of pay of an employe occupying the position of Printer Clerk (Puncher) depends entirely upon the seniority classification of the employe as provided in the Agreement of September 5, 1929 (CARRIER'S EXHIBIT 'C').
"The attention of the Board is invited to the lapse of time between the date on which service was performed by Mr. Edwards and the date of the first claim as contained in Organization's letter of June 10, 1939, over eleven (11) months subsequent to the earliest date (July 8, 1938) and over three (3) months after the latest date (March 4, 1939).
"Without admitting that the claim in behalf of Mr. Edwards has merit otherwise, it is the position of the Carrier that none can properly exist for any date prior to June 10, 1939. As your Board stated in Award No. 1079:
"As we have conclusively shown that Agreement Rule 4 (b), the only agreement provision relied upon by the Petitioner, does not support the alleged claim, and as it is otherwise without merit, te Carrier requests that the Board accordingly deny it."
OPINION OF BOARD: The question presented for decision is: Does Section (e) of an agreement dated September 5, 1929, modify or eliminate Rule 4 (b) of an agreement between the parties dated September 1, 1927?
Rule 4 (b) reads: "Telegraphers will receive the same compensation in relief service as the telegrapher they relieve." The word "telegrapher" according to Scope Rule 1 is a general term and covers both "Morse telegraphers" and "Telegrapher-printer clerks." The employes who were relieved in the instant case were Morse telegraphers. At the time they were performing printer clerk (puncher) work, and for which, under the agreement of 1929, they were drawing Morse pay of 88V2O per hour. George Edwards, the employe who relieved them is a telegrapher (printer clerk) who, while on regular or extra assignment as such, is paid 700 an hour.
Section (e) is a part of an agreement adopting a plan "in settlement of question involving operation of duplex and/or multiple automatic tape printer machines in telegraph offices" of the carrier. This agreement provides that new positions or vacancies will be bulletined to all telegraphers and in filling positions telegraphers so assigned may be used as stated in Section (e) which is quoted in full in the employes' statement herein. This section concludes with the language that led to this dispute and which the carrier claims with other language in the agreement modifies Rule 4 (b) and limits claimant to the compensation paid of 702 an hour whether working as a regularly assigned, extra or relief duplex operator.
The argument of the carrier is logical and consistent but supporting proof is lacking of specific modification of Rule 4 (b). In the absence of such modification by agreement of the parties we are forced to apply the provisions of Rule 4 (b) and arrive at the somewhat inconsistent result that claimant although not qualified as a Morse telegrapher who relieved one then performing the work of a telegrapher (puncher) is nevertheless entitled to receive the same compensation for this relief service as the Morse telegrapher he relieved.
Had the parties intended to modify Rule 4 (b) they should have done so by explicit language for we cannot read additional modifying language into the agreements between the parties. 1534-7 827
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 the action of the carrier in the instant case was a violation of Rule 4 (b) of the agreement.