NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, that:
(1) The assigned starting time of regular positions in the Baggage Mail Department, Chicago Passenger Station (other than relief positions) must be the same each day of the assignment, and
(2) That employes of this Department who have been required to start earlier or work later on certain days of the week shall now be compensated for such service under provisions of overtime rules retroactive to February 1st, .1940."
EMPLOYES' STATEMENT OF FACTS: "(1) On February 1st, 1940, the U. S. Mail Department and the Baggage Department, previously operated as two separate departments, were consolidated into what is now known as the Baggage Mail Department.
"(2) In conference on January 17th, 1940 between Personnel Officers and General Chairman in connection with proposed consolidation of these departments request was made by General Chairman Seifert for adjustment of 'Staggered' starting times which were in effect on certain positions in both departments.
"(8) During the period since February 1st, 1940, there have been varying numbers of these staggered starting time positions, but on September 20th, 1940 there were sixteen such positions in the consolidated department as follows:
Loader 68-91, regular assignment 7:30 A. M. to 4:00 P. M. Sunday Assignment 6:30 A. M. to 3:00 P. M. One hour difference on Sundays.
Loader 71-91, regular assignment 3:00 P. M. to 11:30 P. M., Monday assignment 3:30 P. M. to 12:00 M. One-half hour difference on Mondays.
Loader 80-91, regular assignment 10:30 P. M. to 7:00 A. M. Sunday assignment 11:30 P. M. to 8:00 A. M. One hour difference on Sundays.
Trucker 98-92, regular assignment 7:30 A. M. to 4:00 P. M. Monday assignment 6:30 A. M. to 3:00 P. M. One hour difference on Sundays.
'Our investigation further indicates that the number of positions not having the same starting time each day of the assignment has been reduced to the absolute minimum, based on requirements of the service, excepting only such positions where the starting time is different on a given day for the accommodation of the incumbent of the position, and that we cannot consistently, in consideration of requirements of the service, establish the same starting time on each day of the assignment for such positions.
'Taking into consideration all of the above facts there is no apparent reason why the established practice for a period in excess of 18 years should be changed and thereby unnecessarily penalize the railway company through the requirement of starting position at a time when services of the employe are not needed.'
"Further, the- question in regard to the proper application of rule 32, clerks' agreement, was submitted to a System Board of Adjustment, C. & N. W.-C. St. P. M. & O. Railways established to handle clerks' cases on both railways. The case was designated as Docket No. 77 and involved starting time of transfer forces at Antigo, Wisconsin, assigned as follows:
A copy of the Board's award is attached and identified as Railway Company's Exhibit 'A.' J. E. Barry who signed the award as Chairman was the C. & N. W. Railway clerks' representative on this Adjustment Board.
"It is the position of the railway company that in consideration of the accepted interpretation of rule 32 in effect for a period of approximately 20 years and which interpretation was affirmed by a properly constituted tribunal or board on which the employes had equal representation with the railway company there would be no justification for sustaining the interpretation the employes are now endeavoring to place on the rule as indicated in this claim."
OPINION OF BOARD: The Employes contend that on February 1, 1940 U. S. Mail and Baggage Departments at the Chicago Passenger Station, previously operated as two separate departments, were consolidated into what is known as the Baggage Mail .Department; that since that date employes of this department have been required to start earlier or work later on certain days of the week and that this is in violation of Rule 32 of the current agreement. The Carrier contends that the identical question which is presented in this case was decided by C. & N. W. Adjustment Board No. 2 in its Docket No. 77 dated June 8, 1932, and that since the question here presented was decided by the System Board whose decisions were by agreement final and binding on the parties, that decision should not be disturbed.
"If (1) the claim in this case was the same as that submitted by the parties to the Line :Board of Adjustment in 1933; and if (2) the decision of that Board, issued January 17, 1934, denied the claim on the merits; and if (3) this decision was lawfully arrived at, then the decision is binding on the parties and disposes of this case, for the agreement between the parties of April 7, 1927, setting up the Line Board, provided that its decision 'shall be final and binding on both parties.' "
The Carrier states that at the request of the Board it submitted a joint statement of facts involved in Docket No. 77, the brief of the Brotherhood in support of its position and the brief of the Carrier submitted at the time of the oral hearing in that case. A copy of the Board's award is in the record. We quote from the joint statement of facts in Docket No. 77:
"Prior to July 13, 1931, the entire transfer force at Antigo, Wisconsin commenced work at 5:00 A. M. Effective July 13th the assignments were changed to start at 4:00 A. M. on Mondays, Wednesdays and Fridays and at 6:00 A. M. on Tuesdays, Thursdays and Saturdays."
It was the position of the Organization that the alternate starting time was in violation of Rule 32. The first paragraph of that rule as cited in Employes' brief in Docket No. 77 reads as follows:
"Regular assignments shall have a fixed starting time, which shall not be changed without at least two (2) days' advance notice to the employes affected."
Careful consideration of the record in Docket No. 77 compels us to come to the conclusion that the claim as presented to the Adjustment Board No. 2 in 1932 was the same as the claim now presented to us; that the position of the Organization was the same, to wit, a violation of Rule 32; that it concerned the same class of employes as in the case before us. Was the claim denied on its merits? We conclude that it was. The decision in Docket No. 77 definitely decided the issues in that case. We quote the decision:
"This case having been presented to the Chicago and North Western Ry. Co.-Chicago, St;. Paul, Minneapolis and Omaha Ry. Co. Board of Adjustment No. 2 on June 7th, claim was given full consideration by the Board. Employes' claim denied.
As far as this record shows, the decision reached by Adjustment Board No. 2 was lawfully arrived at. No contention is made by the Employes that it was not.
In the recent award, No. 1277, the Board, confronted with a similar case, said:
"The Board is unable to see any material distinction between the facts in Decision No. 52 and the facts in the claim in this dispute.
"The conductor in that case and the track foreman in this case were stationed at the telephones for the purpose of finding out when the tracks could be used and did report to blockmen when the trains of this carrier had passed.
"The Board is of the opinion that Decisions 14, 19 and 70 of the Pennsylvania Telegraphers' Reviewing Committee are not parallel to the facts in this case. 1663-11 142
In the submission in this case the Employes concede that there may be some merit to the Carrier's argument that Docket No. 77 permits Carrier to make the assignments to which the petitioner here objects and then argues that Docket No. 77 is completely out of harmony with the awards of this Board; that it should, in effect, be overruled. We think the best answer to this is the statement of Referee Garrison in Award 233: "The decision is not a mere precedent which we might disregard if we wished. It is the equivalent of an arbitration award which by agreement binds the parties. The function of our Board is to interpret and apply agreements between the parties."
In view of the repeated holdings of this Board we come to the conclusion that the decision of Adjustment Board No. 2 in Docket No. 77 is binding in the case at bar. In reaching this result we do not pass upon the merits of the controversy but hold merely that the decision in Docket No. 77 is controlling with respect to the claim here presented. This record does not show that there have been any changes in the practices used on this Carrier in regard to Rule 32 since the decision of Adjustment Board No. 2 was rendered. If as a result of investigation or otherwise, the Employes conclude that practices are being engaged in of a sort not covered by the decision in Docket No. 77, they are at liberty to resubmit the case.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon the whole record and all the evidence, finds and holds:
That the carrier and employes involved in this dispute are respectively carrier 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
That the parties are bound by the decision of Adjustment Board No. 2, Docket No. 77, dated June 8 1932 denying the claim involving the same alleged violations as in this dispute.
Claim denied without prejudice to the rights of the employes to resubmit the case on a showing that practices are being engaged in of a sort not covered by the decision in Docket No. 77 of Adjustment Board No. 2, dated June 8, 1932, as construed herein.