STATEMENT OF CLAIM: (a) Claim that C. A. Gill should be awarded the position of Foreman T. & S. in the Regional Telegraph & Signal Repair Shop, Logansport, Indiana, advertised on bulletin No. 119, dated April 2, 1946, and assigned under date of April 29, 1946, by Award No. 119 to R. G. Armey, an employe with no seniority in this seniority district.
(b) Claim that C. A. Gill should have a seniority date in the Foremen's class established on the Logansport Regional Telegraph & Signal Repair Shop roster to correspond with the date of Award No. 119.
(c) Claim that C. A. Gill should be compensated for the difference between the mechanic's rate of pay and the Foreman's rate of pay from effective date of Award No. 119.
EMPLOYES' STATEMENT OF FACTS: The vacant position of Foreman T&S, Regional Telegraph & Signal Repair Shop, Logansport, Indiana, was advertised to all Telegraph and Signal Department employes in the Western Region on bulletin No. 119, dated April 2, 1946, in accordance with the provisions of Paragraph 4 of the agreement providing for performance of work and filling of positions at the Regional Telegraph & Signal Repair Shop, Logansport, Indiana, effective June 16, 1944. A copy of the agreement effective June 16, 1944 is attached hereto and identified as Brotherhood's exhibit No. 1.
Mr. Gill protested the award of this position to Mr. Armey and his protest was denied.
The Carrier has shown that under the applicable Agreements between the parties the Claimant is not entitled to the position or compensation claimed.
Therefore, the Carrier respectfully submits that your Honorable Board should dismiss the claim of the Employes in this matter.
OPINION OF BOARD: The two agreements which apply to this controversy are the effective Telegraph and Signal Department Agreement of June 1, 1943, hereafter referred to as the effective Agreement, and the Supplemental Agreement of June 16, 1944. The Supplemental Agreement was entered into in order to provide for the special needs of the Logansport Shop Seniority District, hereinafter referred to as the Shop District. The Shop District is the only seniority district in the Western Region which is covered by the provisions of the Supplemental Agreement; thus it can be said that no other district in the Western Region has exactly the same contractual status as the Shop District, and that the solutions used in answering questions arising in the Shop District might of might not be the same as those used in districts not covered by the Supplemental Agreement.
The question to be decided here is one of the proper application of the rules involved. There is an honest difference of opinion between the parties as to their proper application. At the outset it can be said that the seniority provisions of the two agreements here involved are somewhat different from those more commonly found in other agreements. It should be kept in mind that there are two agreements which must be considered together in this case; they should be construed, if at all possible, to give effect to all of their provisions. Also, it should be remembered that the Supplemental Agreement was set up to cover a particular situation, which resulted from the fact that employes for the Shop District are drawn from all of the seniority districts in the Western Region.
Article 4, Section 5(a) of the effective Agreement provides that each operating division shall constitute a separate seniority district, and that the exercise of seniority held in a particular seniority district shall be confined to such district. Article 2 of the Supplemental Agreement provides that the Shop district will constitute a separate seniority district. But other provisions of the Supplemental Agreement make it clear that the Shop District is not in all respects the same as the other seniority districts. Article 3 of the Supplemental Agreement and paragraph 6 of Article 4 of the Supplemental Agreement make it possible for employes in the Shop district sometimes to have seniority rights in two different seniority districts at the same time. Paragraph one (1) of Article 4 of the Supplemental Agreement provides that Shop District vacancies will be advertised to all employes in the Western Region; in districts other than the Shop District vacancies are advertised only in the district where the vacancy occurs.
The vacancy that occurred in the Shop district was adversited throughout the Western Region. The position was awarded to R. G. Armey, an employe who held seniority in the foreman class in the Regional T. & S. Gang, hereafter referred to as the Gang District. Armey had no seniority in the Shop District. Claimant, C. A. Gill, held seniority in the signalman and lower classes in the Shop District, but held no seniority in the foreman class. Article 4, Section 3(b) of the effective Agreement provides that temporary service in a higher class shall not establish seniority in that class. Claimant had nothing more than temporary service in the foreman class. Also, Armey had seniority in each class that Claimant had seniority, and in each instance the seniority of Armey outranked that of Claimant.
The Carrier contends that paragraph 6 of Article 4, quoted immediately above, made is proper for it to award the position to Armey. It contends that no "bid" was received from an employe in the Shop District who was qualified to bid. This contention can be sustained only if it is found that the parties intended that there should be a distinction in the use of the word "bid" in paragraph 5, and the use of the word "application" in paragraph 6. The Carrier contends that a distinction was intended, and that only certain employes were qualified to bid, although any employe could make application; the Carrier contends that although bids and applications are received at the same time, bids take priority over applications, and that some applications take priority over other applications. It is a general rule of construction that where different words are used different meanings will be held to have been intended if the application of such different meanings produces a reasonable result. While it is true that the words "bid" and "application" are sometimes used as synonymous, the Board believes that as used in this Agreement they have distinct and separate meanings, and that only employes having seniority in the foreman class were intended to be qualified to bid. Article 4, Section 1 of the effective Agreement sets up five separate seniority classes; the foreman class is set up as one of the five separate classes. The contention that only certain employes have bidding rights in the foreman class is supported by Article 4, Section 20(f) of the effective Agreement, which provision is as follows:
been need to promote; but as has been seen, the position was filled before the promotion stage was reached.
The Board has noted that the very same procedure that the Carrier used here was used in filling a vacancy advertised on July 13, 1944. No protest against the procedure was received from Claimant, or from any other employe, although Claimant was one of the employes who made application for the position. What the intention of the parties was, at the time of the signing of the agreement, is a difficult matter to determine, and the conduct of the parties after the agreement had been signed is very important. The fact that the Carrier applied this method soon after the Supplemental Agreement was signed, at a time when the intent of the parties would still be fresh on their minds and when violation of that intention likely would be objected to, is persuasive to the Board.
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