NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
=es, hereinafter referred to as the Telegraphers' Agreement, last revised 'ary 17 1945 as to rules and May 22 1946 as to rates of pay, is in evidence; copies thereof are on file with the National Railroad Adjustment Board.
Effective January 17, 1946, the parties hereto entered into an agreement which, primarily, provides that "one regular relief day each calendar week shall e designated and assigned by the Company to each position."
At Hoboken Terminal the train clerk position, assigned hours generally, 2:30 P. M. to 12 Midnight, has been assigned Sunday as a relief or rest day. Instead of putting this relief day into a regular relief position or protecting it from the extra list, the Carrier requires or permits a person (a train dispatcher) not covered by the Telegraphers' Agreement to perform train clerk duties on Sundays-duties regularly assigned to and performed by a train clerk Monday through Saturday.
The Carrier emphasizes that it is a rapid transit railroad of the sub w)hy type handling mass transportation; that its train operations and schedule requirements are those used by typical rapid transit railroads; that its phyical characteristics, operating conditions, equipment and methods of operation are peculiarly unique and are not at all comparable with steam railroad equipment and methods of operation.
The provisions contained in the current Agreement between the Carrier and the Organization which establish the invalidity of the claims herein are hereinafter set forth.
POSITION OF CARRIER: The Carrier's practice of using a Dispatcher at Hoboken between 3:00 P. M. and 11:00 P. M. on Sundays, without the use of a Train Clerk in conjunction with such Dispatcher's tour of duty, has maintained for over thirty years. The Carrier has required, in connection with such Dispatcher's tour of duty, that the Dispatcher covering same keep a record of the time of departure and arrival of trains; numbers of the cars in the makeup of trains; names of Motormen and Conductors crewing trains, etc. There have always been tours of duty with an admixture of work which encompasses the performance of work by Train Clerks in the Train Dispatcher's category, and the performance of work by Dispatchers in the Train Clerk's category. No protests heretofore have been made by the Organization that Train Clerks were entitled to such tours of duty. The present protest is for no other purpose than to set aside a practice which our records show has maintained for many years and a practice heretofore accepted and recognized by the Organization.
Inasmuch as the Organization has accepted and recognized such practice without protest over a long period of time, it follows that such practice has acquired the status of and has the same effect as a rule of acquiescence to the admixture of work as above delineated.
In support of the foregoing statements, and to show there has been conscious acquiescence to the foregoing practice, paragraph 4 of Article II contained in the current Agreement between the Carrier and the Organization is quoted below:
Obviously, it is the desire of the Organization to create a new Train Clerk's tour of duty, and in such connection it is the Carrier's position that the creation of such new tour of duty should be by the process of negotiations and not by the assertion of time claims, as in the instant case, which time claims cover a non-existent tour of duty and are based on a specious contention that Train Clerks are deprived of work.
The Carrier, therefore, respectfully submits that claimants are not entitled to any recovery herein; that your Board is without jurisdiction to adjudicate such claims and should deny the same in their entirety.
OPINION OF BOARD: At Hoboken Terminal, the Carrier has established a train clerk position with assigned hours 2:30 P. M. to midnight, Monday through Saturday. The record shows that the duties of the position exist on Sunday. The Sunday work of the position is assigned to a train dispatcher, a position not under the Telegraphers' Agreement. On January 17, 1946, an agreement for a rest-day program was adopted. This agreement provides that as to positions necessary to continuous operation of the railroad one rest day each week will be assigned. Rest days are to be assigned in the following manner: (1) regular relief positions will be 3979-9 805
established, bulletined and filled; (2) regular relief positions will be assigned six days per week; (3) rest days that cannot be worked as a part of a regular relief position, will be protected by extra employes; and (4) an employe required to work on his assigned rest day will be compensated at the time and one-half rate.
It is the contention of the Organization that the train clerk position involved is a seven-day position and, the rest day work not having been assigned to a regular relief position or protected by an extra employe, it belongs to the regular occupant of the -train clerk position at the contract rate of time and one-half.
It is the contention of the Carrier that the Sunday work of this position has been assigned to a train dispatcher for many years, including the time that the current agreement has been in force, without objection by the Organization. It is contended that the practice thus followed does not constitute a violation of the applicable agreement.
The evidence shows that the train clerk position here involved is a seven day position. Under the agreement a rest day must be assigned. Not having assigned the rest day to a regular relief position or to an extra man if that was possible, the work belongs to the occupant of the position.
The contention of the Carrier that a long established practice decreed a contrary result is not tenable. The provisiona of the contract supersede a practice incompatible therewith. The fact that a practice was mutually continued by the parties after the contract became effective, has the effect of estopping the parties from the collection of penalties because of the contract violation resulting therefrom, but it does not estop either party from insisting upon compliance with the contract and the collection of penalties after demand for compliance has been made, to-wit, August 1, 1946.
The Organization claims that the occupant of the position is entitled to be compensated at the time and one-half rate. This is correct. The rate of the position for Sunday work is the time and one-half rate except where a day other than Sunday Is assigned as the rest day. Section 1, current Agreement, effective January 17, 1946. This claim not being within the exception, the claim is properly allowable at the contract rate of the position, to-wit, time and one-half.
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
This Award, by its reference to certain provisions of a supplementary Agreement of January 17, 1946 and by its assertion, contrary to facts of record, that the train clerk position here involved is a seven day position, proceeds thereupon to change the intent of the parties in respect to the scope of the Schedule Agreement effective May 24, 1938 as, applying to the circumstances of this dispute, it had been understood by them upon its negotiation and had been continued thereafter for eight years without protest or request for a change. Those circumstances, by unrefuted statement of record, are:
The understanding of the parties and hence the meaning of their Agreement are represented in its application to those facts. Not until 8 years of acquiescence under their Agreement did one party, the petitioner, change its opinion and allege that the Agreement had a meaning directly contrary to those facts of 30 years existence and of 8 years of understanding under the Agreement.
This Award concurs in the contrary view of the changed opinion of but one party to the Agreement. As shown by this record that had not been the intent of the parties, the necessary element which gives the meaning of the contract. The Award gives a result contrary to that intent, and consequently is in error in its application in this case.