STATEMENT OF CLAIM: Claim of the Joint Council Dining Car Employes, Locals 41, 456, 582, on the property of the Southern Pacific Company (Pacific Lines) that:
(1) The Carrier violated and continues to violate the current agreement, particularly Rule 14 (b) thereof by the assignment of a dining car Steward Mr. Olsen, who holds no rights under said agreement to perform the duties of Bartender on trains No. 51 and 52, during the months of January and February 1948, and-
(2) That the eligible bartender, who may have been available and who should have been called to perform these duties, or the senior available Lounge Car Attendant, who in the event no Bartender was available should have been called to perform the duties assigned to Mr. Olsen, be now compensated to the full extent suffered, namely the hours earned by Mr. Olsen during the months of January and February on Trains 51 and 52 as set forth in (1) hereof.
EMPLOYES' STATEMENT OF FACTS: During January and February, 1948, Mr. Olsen, a dining car steward, was assigned by the Carrier to perform the duties of bartender on trains numbers 51 and 52. The work of "bartenders" is covered by an agreement between the Carrier and this organization, effective December 1, 1947. Dining Car Stewards are covered by an agreement between this Carrier and the Brotherhood of Railroad Trainmen. There are not provisions in said agreements under which dining car stewards are to perform the duties of bartender.
Under date of February 6, 1948, the employes organization filed the instant claim with the Carrier charging violation of the current agreement, particularly Rule 14 (b) thereof, requesting compensation for the employe who should have been called to perform the duties assigned to Mr. Olsen.
Conference upon this claim was held with the Carriers' Superintendent of Commissary on February 27, 1948, at which time Carrier took the position that the Employes Representatives were not proper parties to bring complaints. Carrier based its position upon Rule 26 of the Current Agreement and insisted that said Rule demanded that the Employes must personally file their own claims and, therefore, no claim was properly before the Carrier.
Appeals were taken in the usual manner, up to and including the "chief operating officer" designated by the Carrier to handle such matters, Carrier,
The principle here clearly annunciated fully supports the carrier's position that an employe who holds seniority in the seniority class designated lounge car attendant does not by reason of such fact have the right to promotion to and to perform work in another seniority class (bartenders) in which he does not hold seniority.
The carrier has demonstrated, conclusively, that no proper claim has been presented to the carrier for consideration; that there is however no basis for a claim under the agreement; that the assignment of Mr. Olsen to the service in question was not in violation of the current agreement but to the contrary was in compliance with the agreement. If this Board assumes jurisdiction of the dispute, we submit that the Board must deny same on the grounds that it is entirely without merit.
OPINION OF BOARD: During January and February 1948 Carrier assigned one Charles G. Olsen, a former Dining Car Steward, to perform the duties of bartender on its trains Nos. 51 and 52. Mr. Olsen at the time of his first assignment as bartender held no seniority rights under the Agreement. Employes file claim as indicated.
Carrier has raised a jurisdictional question asserting that bartenders or lounge car attendants are not dining car employes and hence this Division of the Railroad Adjustment Board has no jurisdiction under Section 3, First, (h) of the Railway Labor Act. We cannot agree with that contention. We believe it is settled by usage and National Mediation Board rulings on craft determinations that lounge car attendants or buffet car porters, as they are sometimes called, and bartenders are a part of the craft or class of dining car employes. That being so, this Division has jurisdiction under the above referred to Section of the Act.
It appears that no employes holding seniority as bartenders were available for the assignments on which Carrier had employed Mr. Olsen so that the issue presented for determination is whether or not Carrier was obliged under the terms of the Agreement to use the senior available lounge car attendant on the vacancies which were filled by Mr. Olsen. It further appears that the vacancies to which Mr. Olsen was assigned were temporary vacancies or new positions of less than 30 days known duration, hence the question of assigning an individual holding no seniority under the Agreement to a regularly assigned position is not involved.
The involved Agreement sets up ten different seniority classes. Bartenders and lounge car attendants are in separate seniority classes. For all other seniority classes enumerated in the Agreement, two seniority districts, Northern and Southern, are established, while bartenders are all embraced in one seniority district. The Agreement provides that the seniority of an employe is restricted to the seniority classes and to the seniority district in which he has acquired seniority. There is no Promotion Rule in the Agreement.
Employes rely on Rules 14 (a) and (b) and 15 (e) of the Agreement to substantiate their claim, which Rules read as follows:
Under the seniority rules written into the Agreement it would appear that lounge car attendants, being restricted as they are to the seniority class and district in which they had acquired seniority, would have no preferential right to temporary vacancies as bartenders, The Agreement as written restricts seniority to lounge car attendants as among themselves. The provisions of Rule 14 when read in conjunction with Rule 15 (e) indicate that much latitude was given to the Carrier in the choice of employee to fill temporary vacancies, and the Agreement seems to take cognizance of a situation where no eligible employes holding seniority in a particular class are available for service in the provisions of Rule 10 (a) which reads as follows
Thus an avenue was left open to the Carrier to bring in new employes or old employes who had resigned to perform work which was subject to the Agreement and acquire seniority in the class and seniority district to which initially assigned. That was what was done in this case by the hiring of Mr. Olsen.
While we feel that employes who have rendered service in a lower classification covered by an Agreement should have preference over new people or employes not covered by the same Agreement in filling vacancies in higher rated position, to sustain the claim herein would require us to write a new Rule into the Agreement by interpretation, something which this Board has no power to do. Accordingly, the claim must be denied. 4357-24 ;j41