NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(a) The Carrier violated and continues to violate the established practice of long standing in the Los Angeles Commissary (Dining Car, Hotel, Restaurant and News Service) Department when on January 24, 1943, it discontinued furnishing noontime meals free of charge to employes covered by the Clerks' Agreement;
(b) That Carrier be required to restore the practice of serving noontime meals free of charge, and that employes
and all other employes coming within the scope of the Clerks' Agreement similarly effected be reimbursed the amount of sixty cents (60c) per day for each working day that they are deprived of being furnished a noontime meal free of charge, commencing January 24, 1948, and until the noontime meal is again restored.
JOINT STATEMENT OF FACTS: 1. The carrier maintains a commissary at Los Angeles, California, where supplies of food, -linen, crockery and glassware, utensils, etc., are furnished to dining cars, business cars and restaurants. Those employes of the carrier at this commissary who are named in Item (b) of the Employes' Statement of Claim (hereinafter referred to as claimants who are identified by name) and all other employes covered
Carrier asserts that in the light of the factual data presented in the foregoing it has proven:
Carrier submits, however, that should your Board sustain the claim of the elnployes in the instant docket and order an adjustment in favor of claimants set forth therein for the monetary remuneration requested by petitioner, it will be establishing a monetary inequity as between employes of the commissary department, claimants in this case, and other classes of clerical employes not receiving the adjustment. The agreement of September 14, 1945 provided for adjustment in rates of pay in conformity with proper work evaluations and carrier contends no further adjustments are necessary on positions of claimants.
Your Board is respectfully requested to find in favor of the carrier and deny the claim.
OPINION OF BOARD: The parties have submitted a joint Statement of Facts. They may be summarized as follows: For a period of 30 years the Carrier has furnished clerks in the commissary at Los Angeles a free noontime meal. On January 24, 1948, this practice was discontinued; and the System Committee of the Brotherhood, on behalf of the affected employes, charges that the Carrier has violated an established practice and requests that the Carrier be required (a) to restore the practice of furnishing a free noontime meal, and (b) compensate each affected employe so that he be reimbursed at the rate of 60 cents for each noontime meal not furnished.
The joint submission also shows that after the Carrier commenced furnishing free noontime meals to certain employes of the commissary department at Los Angeles, an Agreement was entered into between the Carrier and the Clerks' Organization; that this Agreement was revised, effective October 1, 1940; and that on September 1, 1945, the parties made an Agreement classifying and adjusting the rates of pay of various positions covered by the Clerks' Organization, including the employes of the Los Angeles com- 5150-13 455
missary. There was no interruption in the practice of furnishing free noontime meals, the subject of this claim, as these several Agreements were consummated. No mention of the meals is made in any of the Agreements, and it does not appear that such was ever the subject of negotiation.
Tht Petitioner shows that employment agencies informed prospective employes that free noontime meals were served to employes of the commissary. The Carrier does not offer a denial of this or show that it was done without authority. The Petitioner also quotes from a letter of a former supervisor of the department that the object of providing free meals was to "keep employes from helping themselves whenever they felt the urge and held the threat that employes eating between meals would be discharged." The Carrier concurs in this as the purpose of instituting the practice of free noontime meals.
The contention of the Brotherhood is that the custom and practice of furnishing a free noontime meal had by January 24, 1948, ripened into a fixed obligation of the Carrier; that under Rule 69 of the Agreement of October 1, 1940, only the prior Agreements were superseded and that all past practices not in conflict with the specific rules set forth in the Agreement were preserved; that the Carrier could not, therefore, by unilateral action discontinue the practice of serving free noontime meals to certain employes under the Clerks' Agreement.
The contention of the Carrier is that the matter of furnishing free meals to the employes of the commissary department is not embraced within the terms of the Agreement between the parties, and that the Carrier, when so furnishing meals, was granting a gratuity which it was at liberty to grant or withhold as it esired without consultation with the Brotherhood.
This Board has had before it a number of times the problem of evaluating the effect of a past practice. We are not here concerned with the type of case where past practice or custom, acquiesced in by both parties, is applied to determine the limitations of a rue, i.e., the Scope Rule. But here we have a practice which originated as a gratuity, Such a proposition was considered by this Board in Award 2436. In that case the practice had been established for the Carrier to permit certain employes to work less than eight hours daily; to have time off with pay to attend funerals of deceased employes; to have one day off each month without loss of pay. In the Opinion of the Board the following appears:
The Opinion then considers whether the rule finally adopted by the parties there concerned abrogated the practice. The rule, after being amended, provided that the Agreement would continue until changed in accordance with the law. The parties here, in their Agreement of October 1, 1940, adopted a rule providing that all previous Agreements were superseded. No reference is made to prior rulings or practices. In that opinion (Award 2436) the Board said that such rule "could not have the effect of abrogating or superseding all previous rules, practices and working conditions," In the rule here under consideration, "previous Agreements" are superseded but the contract is silent on the matter of previous practices and working conditions. The Board followed the principle adopted in Award 2436 when it 5150-14 4;16)
adopted Awards 3338 and 5005. Thus the Board on these occasions has held that practices, starting as a gratuity, may become a part of the Agreement.
The record does not show whether the question of practice with which we are here concerned was ever the subject of negotiation. In Award 501, cited by the Carrier, it appears that the parties were seeking to negotiate a rule on the one hand at about the same time they were seeking enforcement of it as an established practice. In Award 4989 the claim was rejected because the rental arrangement was not tied into the employer-employe relationship. We believe that the practice here under consideration was a part of such relationship.
No contention is made that the written Agreement contains all of the factors which create and surround the relationship of employer and employe. But after a period of 30 years, during which time contracts were negotiated and wage classifications and evaluations made without reference to the practice of furnishing free meals, we believe that such practice became an incident of the particular positions We believe that as contracts were negotiated, that the parties could make the basic assumption that the conditions surrounding the work, in general, continue.
We conclude, therefore, that under the circumstances here involved, the Carrier was not at liberty to abolish the free noontime meal without consultation or negotiation with the Petitioner.
The only source of correct information as to the actual costs of the meals which have not been furnished to named employes is the Carrier's accounting office. The actual cost per meal as determined by the usual accounting practices of the Carrier should be paid to the named employes so long as they remain in the Los Angeles commissary department and until the practice is restored.
FINDINGS: The Third Division of the Adjustment Board, 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
That the dispute arises from a grievance created by the Carrier when it discontinued free noontime meals to certain employes of its commissary department at Los Angeles; and that the contention of the Petitioner is valid.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
NAME OF ORGANIZATION: Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.
Upon joint application of the parties involved in the above award, that this Division interpret the same in the light of the dispute between the parties as to its meaning and application, as provided for in Section 3, First (m), of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The parties in their joint request for an interpretation of Award 5150 present two questions. The first of these is as follows:
Claim (b) included certain identified employes and "all other employes coming within the scope of the Clerks' Agreement similarly affected " · ·." When this claim was first presented on the property it included forty-one identified employes and "all other employes similarly affected." When the claim was presented to this Division it included twenty-four identified employee and all other employes coming within the scope of the Clerks' Agreement similarly affected." It was reasonable to presume from this that the claim was on behalf of identified employee and should be distinguished from a general claim in behalf of a class. The phrase, therefore, "all other employee ' ' ' similarly affected" was, and now is deemed to apply only to such em loge who was in all respects concerning his employment, situated similar to the named claimants. This portion of the claim, in the light of the apparent attempt to name all employes of the Dining Car, Hotel, Restaurant and News Service Department who were, in effect presenting Claim (a), must be held to include only such employes who might have been listed with the other employes of this Department and who were represented by the petitioner, but were omitted. Here, where the petitioner has listed by name the claimants we must construe the phrase "employes similarly affected" to mean employes affected under circumstances identical with that of the named claimants.
The second question presented by the joint request for interpretation is as follows:
This matter came to the Division on the claim of the System Committee of the Brotherhood that (a) the carrier violated and continues to violate a practice of long standing when on January 24, 1948, it discontinued furnishing free noontime meals to certain employee; and (b) that the carrier be required to restore such meals and compensate certain employes that were, on January 24, 1948, deprived of such meals. It is apparent from the statements of claim that the question of the right of certain unnamed persons who did or might become employee after the date when the claim arose was not presented to the Division. As this request involves a proposition not encompassed in the claims before the Division when Award 5150 was adopted, it does not, therefore, present an appropriate question for an interpretation of an existing award.
Referee Robert 0. Boyd who sat with the Division as a member when Award No. 5150 was adopted, also participated with the Division in making this interpretation.