NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Conductor R. Q. Larrabee, Oklahoma City Agency, contends that he was entitled to displace Conductor M. D. Page, hired in the Fort Worth District about October 16, 1940, and asks payment of all time lost as result of failure to give this position to him when it was available.
EMPLOYES' STATEMENT OF FACTS: This case has been progressed in the usual manner under the rules of the Agreement between The Pullman Company and Conductors in the service of The Pullman Company. The decision of the highest ranking officer designated for that purpose is shown in Exhibit "A". Rules 40 and 41 are involved and are shown in Exhibit "B". The facts in this case are best expressed in the letters passing between the parties and they are shown in Exhibit form as follows: Letter from Conductor Larrabee to Agent L. V. Wike, Oct. 10, 1939, shown in Exhibit "C". Letter from Larrabee to Mr. G. H. Gibney, Superintendent, Car Service Employes, Oct. 22, 1940, shown in Exhibit "D". Answer of Mr. Gibney to Mr. Larrabee, Oct. 24, 1940, shown in Exhibit "E". Letter from M. S. Warfield, representing Conductor Larrabee, to Agent L. V. Wike, November 7, 1940, Exhibit "F"-and Mr. Wike's reply, dated November 15, 1940, Exhibit "G". .
All of the foregoing shows that when sufficient additional work came about in Fort Worth, the carrier hired a new conductor instead of giving the refusal of this job to Larrabee, as mentioned in the letter of Mr. Gibney, Exhibit "E". It shows further that Agent Wike, a subordinate to Mr. Gibney, ignored the promises made to Larrabee by Mr. Gibney which acknowledged Larrabee's right to transfer when work was available.
POSITION OF EMPLOYES: The facts in this case are so conclusive that it seems little is left for argument. The conductor, faced with the certainty of no work in his home terminal, made application for permanent transfer elsewhere. He was willing to go wherever there was a chance for work. He was promised that he would be taken care of just as soon as that chance was presented. Instead of making good, the carrier repudiated its promise to Larrabee and hired a new man when work was available in Fort Worth.
The existing Agreement was negotiated and signed for the benefit of the parties thereto and for that reason it is simply common sense to say that every employe has an interest and a right in every rule which is superior to that of any person not covered by the Agreement. Conductor Larrabee certainly had rights superior to those of any non-employe, to service in a district where he had been promised consideration of a permanent transfer and it was a violation of those rights to hire a new man with-
on the seniority roster. An examination of the Agreement will show no rule which provides that conductors on furlough in other districts shall be recalled when there is an increase in force in any given district.
The Company being in no way under obligation by the terms of its Agreement with the Conductors to transfer Conductor Larrabee from Oklahoma City to Ft. Worth or elsewhere permanently or temporarily, was perfectly free to hire a new employe at Ft. Worth or take up one from another position. W. A. Page was the Receiving Cashier at Ft. Worth, having been employed by The Pullman Company since October 7, 1918. The position of Receiving Cashier at Ft. Worth which Page had held since December 26, 1934, was abolished on October 15, 1940, and Page was assigned to duty as a conductor. This employe, though holding no seniority as a conductor, was nonetheless fully entitled to the job. He was subject to no displacement from anyone not holding seniority as a conductor in the Ft. Worth District. The request that Conductor Larrabee be put on the Ft. Worth roster with seniority superior to W. A. Page is not based on any right, "contractual" or otherwise. This claim should be denied.
OPINION OF BOARD: There is little, if any, dispute as to the pertinent facts surrounding this claim. Pullman Conductor R. Q. Larrabee entered the service of the company on May 31, 1926 at Oklahoma City, Okla., where he remained in service until October 7, 1930. On the latter date he was furloughed and was out of service in that seniority district thenceforth except for a total of about 43 days. Thereafter he received temporary transfers to other districts where he worked a total of approximately 329 days. On May 8, 1941 he was permanently transferred to San Antonio, Texas, which was another and different seniority district.
Under the rules and in the light of the facts to be considered, Larrabee did not take his seniority from the district from which he was transferred to the new district. He does not claim that right.
On October 10, 1939, Larrabee wrote the agent of the company at Oklahoma City requesting a transfer to one of the districts in the Houston Zone, preferably San Antonio, if satisfactory arrangements could be made with the management. As an alternative he stated that he would consider transfer to the St. Louis District.
On November 18, 1939 the agent, by letter, informed Larrabee that at that time there was no opportunity for temporary transfer either to St. Louis or San Antonio since there was a sufficient number of conductors to take care of requirements. Permanent transfer was not mentioned. The subject was not further pursued until October, 1940.
About October 15, 1940 one W. A. Page, a Pullman Company employe, not a conductor, was assigned to a position of conductor at Forth Worth, Texas, which was in the Houston Zone. Thereafter on October 22, 1940 Larrabee, by letter to the Superintendent of Car Service Employes, called attention to and renewed his request for permanent transfer. Thereafter on May 8, 1941, as has been pointed out, he was transferred.
It is his claim that he was accorded unjust treatment in violation of the terms and meaning of Rule 46, in that he was entitled to displace Page, and is entitled to payment of time lost by reason of the fact that this position was not made available to him. The Rule is the following:
This language to the extent that it relates to treatment in relation to matters not contained in or covered by the rules just about forces the singular conclusion that the rule guarantees a right to the employe with a remedy which ends with a finding of unjust treatment, without possibility of an award retroactively or prospectively for correction or recompense.
There is no doubt that a conductor has the right to timely complain of unjust treatment for matters not covered by the rules. There is no doubt that he may progress his claim here. There is no doubt that this Division has the right to hear his complaint. There is no doubt that this Division has the right to make a finding on the question of unjust treatment, but there power ceases.
The Agreement fails to confer power of discipline against the company for unjust treatment of employes in matters not covered by the Agreement and the Congressional Act under which the National Railroad Adjustment Board was created confers no such power, therefore, findings of unjust treatment by employes on matters not covered by agreement have immediate emptiness. They may however have the beneficial effect of bringing about negotiations to protect against a recurrence of such treatment.
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