BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that all Mail and Baggage Handlers be paid for work performed on calendar Sundays at the rate of time and one-half time retroactive to October 1, 1942.
EMPLOYES' STATEMENT OF FACTS: The dispute between the parties concerns the application of the provisions of Rule 43 of an Agreement governing hours of service and working conditions revised and effective as of October 1, 1942, reading:
"RULE 43. SUNDAY AND HOLIDAY WORK. Work performed on Sundays and the following legal holidays-namely, New Year's Day, Washington's Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas (provided when any of the above holidays fall on Sunday, the day observed by the State, Nation or by proclamation shall be considered the holiday) shall be paid at the rate of time and one-half except that employes necessary to the continuous operation of the carrier and who are regularly assigned to such service will be assigned one regular day off duty in seven, Sunday if possible, and if required to work on such regularly assigned seventh day off duty will be paid at the rate of time and one-half time; when such assigned day off duty is not Sunday, work on Sunday will be paid for at straight time rate.
"The Company will identify or designate all positions necessary to the continuous operation of the railroad and will post such information on the bulletin board. Positions necessary to continuous operation will be filled seven days each week, including weeks in which holidays occur, when it is possible for the Carrier to do so."
The first paragraph of Rule 43 was promulgated by the United States Railroad Labor Board in its Decision No. 1621, effective March 1, 1923. It was incorporated in subsequent Agreements between the parties which became effective March 1, 1924, and February 17, 1936, and is commonly referred to as the "standard" Sunday and Holiday Rule, having been included in most Agreements between the Brotherhood and Carriers. Disputes concerning the interpretation and application of the Rule have been passed upon by the United States Railroad Labor Board, Beards of Arbitration, Express Board of Adjustment No. 1 and by the Third Division.
OPINION OF BOARD: Prior to October 1, 1942, the agreement between the organization and the carrier contained the standard Sunday and holiday rule, providing for payment at time and one-half rate for work performed on such days excepting, however, work performed by employes holding positions "necessary to the continuous operation of the carrier." Under the exception it was provided that employes holding positions "necessary for continuous operation" should have one regular day off in seven and should be paid at straight time rate for Sunday work.
Construing the standard rule, this Division has repeatedly laid down the elements that go with a position "necessary to the continuous operation of the carrier." These elements are:
With the assistance of a mediator the parties entered into the current argeement-effective October 1, 1942. In this agreement there was added to, and made a part of, the standard Sunday and holiday rule, the following:
"The Company will identify or designate all positions necessary to the continuous operation of the railroad and will post such information on the bulletin board. Positions necessary to continuous operation will be filled seven days each week, including weeks in which holidays occur, when it is possible for the Carrier to do so." Rule 43.
Purporting to comply with this provision the carrier, on November 2, 1942, posted the following notice:
"There are 7 Mail and Baggage Handler positions on the first tour which the Carrier at this time considers necessary to continuous operation. All positions regularly assigned to work on SUNDAY in excess of 7 will be paid at the overtime rate.
"There are 5,8 Mail and Baggage Handler positions on the second tour which the Carrier at this time considers necessary to continuous operation. All positions regularly assigned to work on SUNDAY in excess of 58 will be paid at the overtime rate.
"There are 78 Mail and Baggage Handler positions on the third tour which the Carrier at this time considers necessary to continuous operation. All positions regularly assigned to work on SUNDAY in excess of 78 will be paid at the overtime rate."
Obviously this notice does not conform to the letter nor the spirit of the rule. Nor does it meet the requirements laid down in the awards to which we have referred. The carrier has merely designated the number of such positions "necessary to continuous operation." The carrier gives several reasons in attempting to justify this as a compliance with the rule, among which are: (1) that the designation complies with the rule as construed by the Mediator; (2) that the employes participated in the distribution of assignments in accordance with their seniority rights; (3) that, during the negotiation leading up to the execution of the agreement, the organization proposed a rule dealing with the subject matter (4) that the employes on the positions in question are assigned in groups. First. What the Mediator may have said about the rule and what would constitute compliance with it is of no moment-particularly since the language is plain and unambiguous. In 2536-24 261
The organization's claim for reparation cannot be allowed as made. This aspect (reparation) of the claim will be remanded for further negotiations on the property. In their negotiations the parties are to be guided by the principles laid down in the awards we have cited. For the purpose of ascertaining the amount of reparation a position is not to be considered "necessary to continuous operation" unless the elements set up in those awards have been applied to it.
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 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
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
NAME OF ORGANIZATION: Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.
Upon application of the representatives of the employes involved in the above award, that this Division interpret the same in the light of the dispute between the parties as to its meaning and application, as provided for in Section 3, First (m), of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The controversy which has arisen involves two issues that are to be de termined by the following language of the Award:
The notices posted by the Carrier on June 22 and 23, 1944, establishing the positions, obviously meet the requirement specified.
The practice of the Carrier in making assignments for relief work on off days of employes holding regular positions (as indicated on page 7 of Exhibit 5, attached to Mr. Harrison's letter of June 13, 1945) does not comply with the direction intended by the language underscored in the foregoing quotation from the Award. The direction, no doubt, should have been more definite. It does not, however, admit of blanking the position on the incumbent's off day, nor the assignment of the work appertaining to the position to, or the distribution of such work among employes holding regular positions.
It was intended that, for every six of the regular positions, there should be a relief employe (one holding no other regular position) assigned to the work of each of such six positions on the off day of the regular incumbent.
Referee Bruce Blake, who sat with the Division as a Member when Award No. 2536 was adopted, also participated with the Division in making this Interpretation.