Award No. 3566
Docket No. MW-3598
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Edward F. Carter, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
MAINE CENTRAL RAILROAD COMPANY
PORTLAND TERMINAL COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood:
(1) Thai; under the application of letter addressed to M. T. Simmons,
General Chairman, Brotherhood of Maintenance of Way Employes, by S. G.
Phillips, Engineer Maintenance of Way, under date of February 16, 1944,
bridge and building foreman and equipment inspectors are entitled to six
days sick leave with pay in any one year;
(2) That Bridge and Building Foreman E. B. Sweet, who was off duty
on account of sickness from February 26 to March 14, 1945, shall be paid
for; six days sick leave.
(3) That Bridge and Building Foreman Anson B. Stewart, who was
off duty on account of sickness from January 25 to February 1, 1946, shall
be paid for six days sick leave.
EMPLOYES' STATEMENT OF FACTS:
Memorandum of Agreement
under dates of February 16, 1944 and February 13, 1945, and letter under
date of February 16, 1944, pertaining to bridge and building foremen and
other classes of employes, read:
MEMORANDUM OF AGREEMENT
BETWEEN
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
MAINE CENTRAL RAILROAD COMPANY
PORTLAND TERMINAL COMPANY
EFFECTIVE FEBRUARY 16, 1944
s . n s +
Effective this date, Bridge and Building Foremen and Work Equipment
Inspector, Maintenance of Way Department are included within the scope
of the Agreement with the Brotherhood of Maintenance of Way Employes
effective May 28, 1942, and the provisions of that Agreement, except as
hereinafter provided, apply.
(5427
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554
Brotherhood representatives would, of a certainty, not agree to the language
contained therein.
In further proof of the Position of the Carrier that the Agreement of
February 16, 1944, was entirely superseded or set aside, the attention of
your Board is directed to the following:
1. The Agreement of February 16, 1944 covered four specific stipu-
lations, i.e.:
(a) Inclusion of Bridge and Building Foremen and Work
Equipment Inspector in Scope of Maintenance of
Way Agreement effective May 28, 1942.
(b) Monthly salary to cover all services performed including overtime worked and work performed on
Sundays and Holidays.
(c) No deduction in monthly rate to be made because
of curtailment in number of days and hours worked.
(d) When called, held for or required to perform work
other than their own duties outside of established
working hours on week days, on Sundays and Holidays, they would be paid at overtime rates specified
in the Agreement.
2. The Agreement of February 13, 1945, was entered into to provide overtime rates to these Foremen and Inspector when required to perform any work on Sundays and Holidays and in
excess of their regular eight hour work period on week days. If
it was the intent that the Agreement of February 16, 1944, or
any portion thereof, was to remain in effect, the revision of
overtime payment would be the only stipulation changed in the
February 13, 1945 Agreement. Such however, was not the intent, and a comparison of the two Agreements, as quoted in
the Carrier's Statement of Facts, will quickly show that the stipulations in the 1944 Agreement, which remained unchanged in the
1945 Agreement, were included in the 1945 Agreement WITH
THE EXCEPTION OF THE LETTER AGREEMENT COVERING SICK LEAVE BENEFITS, WHICH WAS NOT INTENDED
TO BE INCLUDED.
The Parties to this dispute have exchanged copy of their Rebuttal to
the other's Position.
OPINION OF BOARD:
On February 16, 1944, a Memorandum
of Agreement, was entered into whereby Bridge and Building Foremen and
Work Equipment Inspectors, Maintenance of Way Department, were included within the scope of the Agreement between the Maintenance of Way
Employes and this Carrier. On the same day, Carrier's representative wrote
the Organization's representative in part as follows:
"In completion of the Memorandum of Agreement between
your Brotherhood and these Companies, effective February 16, 1944
which provides that Bridge and Building Foremen and Work
Equipment Inspector, Maintenance of Way Department, are included within the scope of the Agreement with the Brotherhood of
Maintenance of Way Employes, effective May 26, 1942, the following is agreed:
"Present sick leave benefits applicable to these Foremen and the Equipment Inspector, which are six (6) days
in any one year, to be continued until and unless modified
by subsequent agreement."
On February 13, 1945, a second Memorandum of Agreement was entered into under date of February 13, 1945. This latter Agreement dealt
3566-14
555
with and provided for the payment of overtime for
Bridge and Building
Foremen and Work Equipment Inspectors. It followed the identical language of the Memorandum of Agreement dated February 16, 1944; except where changes were necessary to provide for overtime pay. We think
the readoption in terms of that part of the prior Memorandum of Agreement
of February '16 1944, other than that pertaining to overtime pay, in the
Agreement of February 13, 1945, carries into it the agreed upon interpretation of the former. The use of the words, "This Agreement supersedes
agreement effective February 16, 1944," evidences no intent to change the
agreed upon interpretation of language adopted in terms in the latter from
the former. It evidences an intention that all terms of the former agreement except those dealing with overtime should have the same meaning as
before. These Claimants are therefore entitled to six days sick leave with
pay as alleged in their claim.
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 parties waived oral hearing thereon;
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 Agreement was violated as alleged.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Third Division
ATTEST: H. A. Johnson
Secretary
Dated at Chicago, Illinois, this 22nd day of May, 1947.