BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
DULUTH, MISSABE AND IRON RANGE RAILWAY
COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that Conrad E. Lind, Stanley F. Paczynski, Joseph Vukelich, Howard Wood and all others similarly affected be given their proper seniority dates on seniority lists covering ore dock employes, in accordance with the provisions of current Agreement effective October 1, 1945.
EMPLOYES' STATEMENT OF FACTS: Prior to August 6, 1940, ore dock employes involved in this dispute were represented by the Steel Workers Organizing Committee of the Committee of Industrial Organization, and an agreement negotiated between that organization and the carrier covering ore dock employes effective September 1, 1938, remained in effect until October 1, 1941, when superseded by an agreement negotiated between the carrier and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.
During the Fall of 1936 the carrier hired approximately thirty dock laborers each of whom were required to sign a written statement waiving all rights to seniority, some of whom worked thirty days or more prior to the close of that shipping season while others were employed for less time.
With the opening of the 1937 ore season the Committee representing the ore dock laborers entered into the following Memoradum Agreement with the carrier:
Ist-It is agreed that anyone hired for work on the Ore Dock after the date of this agreement will not acquire any seniority except as provided for
properly posted each year in accordance with Agreement rules, the first protests from the employes are as follows:
The Carrier contends that all protests are in violation of rules quoted above and regardless of other reasons given herein, employes lost all opportunity for correction of seniority date by failure to comply with Agreement rules.
The Carrier wishes to briefly sum up its position and to request that the claim of the Employes be rejected for the following reasons:
(1) This is a duplicate case to Award 1408 decided in favor of the Carrier.
(2) As shown by Exhibit "B", the employes definitely agreed they were not to acquire seniority.
(3) By :Exhibit "C", it is shown that the hiring of temporary employes without acquiring seniority was an agreement with the then duly accredited representatives of the employes.
(4) By failure to question or protest their seniority date as shown on seniority lists as provided in the 1938 and 1941 agreements, the employes lost their rights to protest at this time, shown by Exhibit "D".
As to that part of the employes' claim in which they want the decision to apply to "all others similarly affected", the Carrier contends that it is not a proper submission and should be given no consideration. The Carrier contends to properly answer such a claim for seniority it must have the record of each individual employe involved.
OPINION OF BOARD: The Organization contends that employes Lind, Paczynski, Vukelich, Wood and others similarly affected, are entitled to have their seniority dates fixed in accordance with the current Agreement.
On April 1, 1937, the Carrier entered into an agreement with a committee representing Ore Dock Laborers. It was therein agreed that the seniority list would be limited to 135 employes and that this list would be maintained by the Carrier from the temporary men hired under the Agreement It further provided that whenever an employe is added to the seniority list, his seniority would date from the day he first worked as a temporary employe. On April 18, 1937, about thirty men including the four named in the claim were employed and required to sign a statement in the following language:
On September 1, 1938, the ore dock laborers were represented by the Steel Workers Organization Committee of the C.I.O. and an agreement was negotiated as of that date which remained in effect until October 1, 1941. On the latter date, the initial agreement between the Carrier and the Clerks Organization was negotiated. This remained in effect until October 1, 1945, when the current Agreement was made.
The Carrier contends at the outset that the claim is conclusively settled by our previous Award 1408. We do not think so. That decision involved a case which arose when the Agreement of April 1, 1937, was in effect. Clearly, 3552-7 401
the employes in that case who had signed the state of April 18, 1937, hereinbefore quoted, obtained no seniority rights under the Agreement of April 1, 1937, because the contingency had not occurred which gave them seniority rights under it and this Division so held. The employes in the present case are claiming no rights under that Agreement. The present claim is founded on the Agreement of October 1, 1945, and agreements immediately prior thereto, that were non-existent when the dispute decided in Award 1408 arose.
It is evident that these named claimants could gain no seniority rights under the Agreement of April 1, 1937, until they were placed on the seniority list by the Carrier in accordance with Paragraphs 2 and 3 of that Agreement. The named claimants were not added to the seniority list during the life of the April 1, 1937 Agreement, consequently they never were entitled to a seniority date under that agreement.
On September 1, 1938, a new agreement was negotiated for Ore Dock Laborers with the Steel Workers Organizing Committee of the C.I.O., representing the employes. This agreement provided:
During the life of the foregoing agreement, these named employes were recalled to work after having been laid off by force reduction for a considerable period. The record shows that this long lay-off was one over which the employes had no control. Consequently, under the provisions of Rule 5, they were entitled to a seniority date as of the date the employe first entered the service of the company on the ore docks, there being no evidence that they ever laid off except as a result of force reduction.
The record shows that the Carrier gave these named employes seniority dates as of 1939, the dates they were recalled to work on the ore docks, and protests were made against the Carrier's action in so doing. The record discloses that the processing of these protests was held up because of a dispute as to whether the Third or Fourth Division of the ,National Railroad Adjustment Board had jurisdiction of the agreement with the ore dock laborers. This jurisdictional dispute was not settled until September 17, 1940, when Award 1186 was made by this Division.
On October 1, 1941, a new agreement was negotiated with the Clerks' Organization representing the ore dock laborers. The roster was next posted on April 1, 1942, in accordance with that agreement. The named claimants protested the seniority dates given them on this foster in writing within the 60-day period. required by the rules. The Agreement of October 1, 1941, provided:
This rule, the exceptions therein specified not being applicable to the present dispute, did not change the seniority date of any employe who had acquired seniority rights under the Agreement of September 1, 1938. Nor, did the current agreement under date of October 1, 1945, have that effect.
Consequently, the correct seniority dates of the named claimants is the date on which they first entered the service of the Carrier on the ore docks as shown by the Carrier's payroll.
The claim in the present case includes the words "and all others similarly affected". The Carrier contends that the claims of others similarly affected cannot be considered. Rule 3 of September 1, 1938 Agreement provides: 3552-8 402
The 1941 and 1945 Agreements contain substantially the same rule, the only major difference being that sixty days is allowed for the filing of protests. This rule clearly means that unless an employe or his representative protests the seniority date given him on the posted roster within the time specified, the stated seniority date will be considered the correct one. There is no evidence in this record that any of the other mployes not named complied with this rule. If they failed to protest within the required-time, they have no claim. If an employe can establish by proof that he protested his posted seniority date within the time allowed, he can find support for an affirmative award in this case if his situation is otherwise similar to those of the named claimants herein.
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