Award No. 2585
Docket No. CL-2441
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Bruce Blake, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN PACIFIC COMPANY (PACIFIC LINES)
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The carrier has violated and continues to violate Rules
30, 31
and
33 of our current agreement with the carrier when it uses employes from
seniority roster No. 4, San Francisco Freight Station, to perform work on
roster No. 5 in San Francisco Third Street Station Baggageroom.
(2)
That seven employes of roster 5 available and qualified to perform
the work on, roster 5 that has been and is being performed by employes from
roster 4 shall be compensated for the work performed on call basis at the
established rate under provisions of Rule
21
of our current agreement, for
each and all days upon
which roster
4 employes have been and are used to
perform work on roster 5, such compensation to be retroactive to November
22, 1941,
the date on
which protest
and claim filed by Division Chairman with
Division Superintendent. ,
EMPLOYES' STATEMENT OF FACTS:
An agreement bearing date of
October
1, 1940
as to rules and working conditions, is in effect between the
parties to this dispute. The employes involved in this claim are covered by
the agreement.
Rules
30, 31, 32
and
33
of our current agreement read as follows:
Rule
30
is a very long rule, and to avoid burdening the record, we quote
only sufficient thereof to show that our seniority districts are composed of one
or more rosters.
"SENIORITY ROSTERS
Rule
30. -
A seniority roster shall be prepared for each seniority district,
except as follows: * * *
OPERATING DIVISIONS:
Each Operating Division shall constitute a separate seniority District.
COAST DIVISION:
Roster
1. Office of Division Superintendent (including immediate offices of
Assistant Superintendent, Trainmaster, Chief Dispatcher, Master
Mechanic, Division Engineer, Roadmaster).
[565]
2585-10
574
impose such a requirement upon the carrier. On the contrary, it is an established, and irrefutable fact that it
has been the agreed-upon practice, to
use employes from roster No. 4 (the freight station) to perform those duties.
Award 2011 of this Board conclusively establishes the propriety of the carrier's position in this docket and recognizes that incidental service of the
nature here involved is not reserved exclusively to employes of roster No. 5.
When this case was discussed at conference on May 15, 1942, the petitioner's general chairman endeavored to justify the claim by citing Award;
973 975, 1403 and 1440 of this Division. An analysis of said awards indicated that the question in those cases concerned the use of employes of one
seniority district to perform the work of employes on another and separate
seniority district. The general chairman was informed that those awards
involved a matter entirely foreign to the issue in the instant claim because
the employes here involved are of the same seniority district (see Rule 30
(Exhibit "G") ).
In the course of the discussion of this case at conference, May 15, 1942,
the petitioner's division chairman raised the question of obtaining certain
wage increases for various employes on the Coast Division and at that time
stated that if said wage increases were granted by the carrier, the instant
claim would be abandoned. Subsequently, with a letter dated May 18, 1942
(Exhibit "H"), petitioner's general chairman submitted to the assistant manager of personnel a counterpart of the division chairman's letter of the same
date indicating what the latter desired in way of increases, which if granted
would have resulted in the abandonment of this claim. The proposed wage
increases were not acceptable for several reasons, first, because the carrier
was within its rights in using employes of roster No. 4 for the necessary short
periods to assist roster No. 5 employes at the baggageroom; second, because
there was no justification for the proposed increases; and third-if there was
any justification for said proposed increases they should, as individual cases,
be handled on their respective merits.
The foregoing illustrates that the instant claim was made in bad faith;
that it was initiated and designed for a purpose other than to establish the
right of employes of roster No. 5 to perform the service in question.
-
CONCLUSION
The carrier respectfully submits that it is incumbent upon the Division
to dismiss the claim involved in this docket for want of jurisdiction; however,
if the Division does assume jurisdiction then the carrier submits that the said
claim being without merit should be denied.
OPINION OF
BOARD:
The carrier's passenger station is about a block
distant from its freight station. Although the two stations are in the same
seniority district, under the controlling agreement the baggageroom employes
in the passenger station and the freight house employes hold seniority rights
9
under separate seniority rosters-the employes at the freight station being
on roster No. 4; and those at the passenger station on roster No. 5. Under the
agreement the seniority rights of employes on the respective rosters are no
different than they would be if the stations were in different seniority districts.
In other words, the employes on the respective rosters have the prior right to
claim and perform work falling within the scope or purpose for which the
roster is set up. By the same token, the carrier is precluded from assigning
employes on one roster to perform work falling within the scope of another
roster-the well established rule as applied to employes in different seniority
districts being applicable. Awards Nos. 973, 975, 1306, 1808. (Parentheti
cally, it is to be noted that the Awards cited except 1306 refute the conten
tion of the carrier that the instant claim is ambiguous and indefinite because
it fails to name the employes on roster No. 5 whose rights have been affected
by the assignment of freight house employes to work in the baggage room.)
So, we start off with what amounts to a patent violation of the agree
ment-the fact being admitted that the carrier used employes on roster No.
2585-11 575
4 to perform work that properly belongs to employes on roster No. 5. The
carrier seeks to justify its action by historical practice and an oral agreement
had with the Division Chairman of the Brotherhood, by which the carrier was
permitted to use freight station employes for work at the passenger station
during certain hours when the work there was too heavy for the regular
force to handle. That the understanding was had as claimed by the carrier,
we have no doubt. Nor can there be any doubt that the understanding was
not in accord with the provisions of the controlling agreement with respect
to the seniority rights of employes on roster No. 5. Such understandings as
that had between the carrier and the Division Chairman cannot serve to
modify the terms of the controlling agreement between the carrier and the
organization. To hold otherwise would soon effectually destroy such agreements. For Division Chairmen are prone, in the settlement of disputes, to
compromise on terms less than the agreement between the carrier and the
organization demand. Such understandings, or contracts, as the carrier here
relies upon, can have no binding force beyond the point that it has been
acted upon. Either party is at liberty to repudiate it and demand the rights
accorded by the agreement between the organization and the carrier. The
System Committee recognized this principle in demanding reparation only
from November 22, 1941-ten days subsequent to the date it made the claim
which forms the basis of the instant dispute.
The carrier contends that the claim is prosecuted in bad faith. We shall
not review the facts upon which this charge is made. By it, the carrier
simply tries to inject a collateral issue which has no bearing upon the real
issue in this dispute: whether the carrier violated the agreement in assigning
employes on roster No. 4 to do work which employes on roster No. 5 were
entitled to perform? The fact is admitted. Clearly, the action of the carrier
violated the seniority rights guaranteed to the employes on roster.No. 5 by
Rules 30, 31 and 32. And, under Rule 21, they were entitled to be called to
perform the work.
The plea that reparation should not be made retroactive does not appeal
to us. The employes were demanding only what they were justly entitled to
under the agreement and the decisions of this Board. Reparation will date
from November 22, 1941. See Awards Nos. 685 and 2282. The dispute will
be remanded for further negotiation on the property to determine the employes entitled to reparation and the amounts to which they are entitled
under Rule 21.
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
That the carrier violated the agreement.
AWARD
Claim sustained as indicated in the opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: H. A. Johnson
Secretary
Dated at Chicago, Illinois, this 1st day of June, 1944.