STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: Prior to September 1, 1949 the Crossing Watchmen at Convent and Bulger Streets, St. Louis, Missouri were assigned to work 6 days per week. As a result of the 40 Hour Week Agreement signed at St. Louis, Missouri on the 16th day of July 1949, this 6 day per week assignment was reduced to 5 days per week, eflrective September 1, 1949.
On Labor Day, September 5, 1949 and on Thanksgiving Day, November 24, 1949, the Crossing Watchmen at Convent Street and Rutger Street were laid off and as a result, they worked only 32 hours in these two respective weeks.
The Crossing Watchmen assigned to the positions at Bulger and Convent Streets are paid a monthly rate, such rate being based on 1691A hours per month.
Claim was filed with the Carrier, requesting that the Crossing Watchmen at Convent and Rutger Streets be paid at their respective time and one-half rates for 8 hours each on September 5 and November 24, 1949, account of not being permitted to perform 40 hours work during the two weeks referred to.
The agreement in effect between the two parties to this dispute, dated July 1, 1938, and subsequent amendments and interpretations are by reference made a part of this Statement of Facts.
For the information and convenience of your Board we are quoting below paragraph (d) of Rule 15, which reads as follows:
As has been shown above, however, when the 40-hour work week was made effective, the formula was reduced to 169%a hours per month, which did not include holidays, and that is the number of hours now comprehended in monthly rates paid to crossing watchmen on this property.
Rule 16 of the Memorandum Agreement effective September 1, 1949, providing for 169'fs hours of service comprehended in the regularly established monthly rate of compensation, standing alone, is conclusive proof that holidays are not a part of the hours comprehended in the monthly rate and does not, therefore, constitute a guarantee.
As has also been pointed out to your Board, should there be any doubt of the meaning of the language employed in the hicago Agreement of March 19, 1949, ARTICLE 11, Section 3 (f) of that agreement clearly states that such language does not constitute a guarantee where none existed prior thereto.
All matters contained in the claim as presented on the property have been discussed in conference or correspondence between the parties thereto.
This claim is wholly without merit, without support under the effective argeement and is contrary to the interpretation and practice on the property by both parties to this dispute. It should, therefore, be denied.
OPINION OF BOARD: Claimants who were monthly rated employes, were laid off on two holidays (Labor Day September 5, 1949 and Thanksgiving November 24, 1949) and as a consequence worked 32 instead of 40 hours. They were paid their full monthly rate but claim that they were entitled to work the holidays at the rate of time and one-half. It is conceded by all hands that the monthly rate was calculated in such a way as not to include pay for a holiday not worked. Therefore, if the claims are good, the claimants are entitled to time and one-half.
The claimants rely on Rule 14 Section 2 (b) but this rule is no more than a guarantee in aid of seniority for it is by its terms limited to prevent reductions in assignments "to avoid making force reductions" and so is not applicable here (Award 5074). The main reliance is upon Rule 16, the history of which it is necessary to consider.
The prototype of Rule 16 was Rule 16 (a) of the 1938 Agreement which contained no formula for computing hourly and monthly rates but did contain a specific weekly guarantee as follows:
Recognizing that the terms of the "Chicago Agreement" dated October 21, 1944 (effective December 16, 1944) required certain changes in the rules relating to "Sunday and Holiday Work, Overtime, Calls and Absorbing Over- 5213-9 116
time," the 1938 Agreement was amended accordingly by Special Decision MW-113 in the following particulars pertinent here:
Therefore, effective December 16, 1944 the monthly rates of crossing watchmen and the other employes named in Rule 16 (a) were made uniform to "comprehend not less than 8 hours' service per day for 6 days per week' and were said to be "based on 208% or 243'/3 hours per month subject to provisions of Rule 15."
Also effective December 16, 1944, Rule 15 was amended to provide for a gradual transition from a 7 day week basis (243'/3 hours) to a 6 day week basis (208afe) hours as 7 day positions became vacant after December 16, 1944. Rule 15 was also amended to add:
The monthly rates so established included pay for the 7 holidays named in Rule 15 at pro rata rates. Thus, if no service was required on a holiday, the crossing watchman was paid his full monthly rate which included pay at the pro rata rate for the holiday not worked. And if he was required to work the holiday, he was paid 4 pro rata hours in addition to his monthly rate.
Thus, Special Decision MW-113 both eliminated and expressly denied any guarantee of any certain number of days per week; but in effect the Decision guaranteed these monthly rated employes 6 days per week pay by fixing their monthly rates at 208% hours or 243'/3 hours which included pay at the pro rata rate for holidays not worked.
It is of particular significance to note, however, that the elimination of the 6 day guarantee from the Agreement left nothing but a formula for determining hourly rates.
We therefore find nothing in the 1938 Agreement as revised by Special Decision MW-113 which would guarantee these monthly rated employes the right to work a holiday and receive 4 pro rata hours' pay in addition to their monthly rate. And such is the nature, if not the extent, of the claims made here.
This Agreement established the 40-hour week for these employes. So far as pertinent here, it provided:
Recognizing that the "Chicago Agreement" dated March 19, 1949 (effective September 1 1949) required certain changes in the rules, Rule 16 of the 1938 Agreement as revised by Special Decision MW-113 was amended to read as follows:
This new rule appears to be contradictory on its face, because a monthly rate "based on 169'/3 hours" comprehends the exclusion of 2 rest days per week and 7 holidays per year, whereas a monthly rate which "shall comprehend 8 hours service per dy for 5 days per week" would have to be based on 174, not 169'/3 hours. The predecessor Rule 16 is perfectly consistent in this respect: what the monthly rate was said to "comprehend" and what it was said to be "based on" were identical-6 days' pay which equals 208% hours. The apparent contradiction in the present rule can be resolved only by either consulting the Chicago Agreement or by assessing the weight of what the monthly rate was said to "comprehend" against what it was said to be "based on".
It is a familiar principle of the construction of agreements that the specific controls the general. This would indicate that greater weight should be attached to the specific figure "169'/3 hours" than to the general statement that "not less than 8 hours' service per day for 5 days per week" was comprehended. Moreover, the general statement here is but a step in the formula by which the specific result is reached. So if the rule alone be consulted, usual canons of construction would lead to the conclusion that "1691/3 hours" is controlling.
And if we consult the Chicago Agreement, much the same conclusion is reached. It is true that both the Chicago Agreement and the Report and Recommendations of the Emergency Board give every indication of an intention to perpetuate existing arrangements with respect to holiday pay (see especially Article II, Section 3 (g) ). But the Chicago Agreement also contains the very formula from which the calculation of 169'/s hours was derived (Article II, Section 2 (b) ). 5213-11 118
In view of the foregoing considerations, we are unable to conclude that these monthly rates are properly based on 174 hours or that either the present Rule 16 or its predecessor guaranteed the right of these employes to work a holiday.
The claimants cite a number of awards to the effect that established practices are not abrogated by a new agreement unless they are inconsistent with it. Such awards are not material here. This is not a case of a practice but rather a case of performance under a rule which was changed by an amendment of the rule (see Award 5013).
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