Award No. 5267
Docket No. CL-5312
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Francis J. Robertson, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that-
(a) The Carrier violated and continues to violate rules of the
current working agreement between the above named parties
by failing and refusing to pay W. A. Hood and others similarly affected time and one half for holiday work and that
(b) W. A. Hood and others affected be paid the difference between the pro rata rate as paid and the rate of time and
and one-half and
(e) that said W. A. Hood and others affected be likewise reimbursed for violations on subsequent holidays.
EMPLOYES' STATEMENT OF FACTS:
The parties to this dispute
entered into an agreement, effective as of September 1st, 1949 covering
among other matters the rate of pay for holiday work.
The carrier has failed and refused to apply to certain of its employes
the proper rate of pay for holiday work.
The Organization in conference, confirmed by its letter to Mr. J. M.
Prickett, Vice President, dated November 17, 1949, protested the failure to
properly pay these employes.
POSITION OF EMPLOYES:
Prior to September 1, 1949, the following
rules were in effect and governed the application of the issue now in dispute-
"Rule 19 (b) When the established starting time of a regular
position is changed one hour or more for more than six (6 consecutive days, or from a six (6) to a seven (7) day assignment or
vice versa for a period of four (4) weeks or more, the incumbent
may, within ten (10) days thereafter, upon thirty-six (36) hours
advance notice, exercise seniority rights, if qualified, to any position held by a junior employe, and other employes displaced by
reason of his exercising seniority may exercise their seniority in
the same manner. Seniority may be exercised in like manner by
an employe when, during his occupancy of a regular position, the
1805)
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by proclamation shall be considered the holiday) shall be
paid for at the rate of time and one-half, except that employes on regular seven-day positions (see Note, Rule
39-1) and those who relieve them shall be compensated on
the same basis as on other days of their regular assignment'
You proposed a rule for penalty time payment for all holiday
work. We could not agree to this due to the wording of Article 11,
Section 3 (d) whereby no change was to be made in existing holiday provisions, and you finally stated that as the Chicago Agreement of March 19th authorized no change in the provisions, you
would accept the rule we proposed if we would leave the word
'assignments' and not 'positions' and that you would submit the
matter to the Adjustment Board for interpretation.
We advised that it was our position, inasmuch as the word
'assignments' in the rule as originally written actually meant 'positions even though the word 'assignments' in the Chicago agreement
referred to the number of days assigned for employes to work, it
did not change the meaning of that word as used in our rule and
that, as the rule meant 'positions' we would only pay straight time
to employes (regardless of which days they might be assogned to
work, whether they included holidays or Sundays, or not.
The agreement, as made, effective September 1, 1949, provides:
'Sixth-Amend Rule 41 to read as follows:
Holiday Service: Work performed on the following
legal holidays; namely, New Year's Day, Washington's
Birthday, Decoration Day, Fourth of July, Labor Day,
Thanksgiving Day and Christmas (provided that when any
of the above holidays fall on Sunday, the day observed by
the State, Nation or by Proclamation shall be considered
the holiday) shall be paid for at the rate of time and onehalf, except that employes on regular seven (7) day assignments and those who relieve them shall be compensated on the same basis as on week days.'
It is still our position that Rule 41, as originally written, and
as amended, means that employes filling positions regularip assigned to be worked seven days shall be compensated at straight
time rates for holidays, the same as on other days which may not
be holidays.
The claim is, therefore, denied."
Claim should be denied.
Copies of agreements referred to are on file with the Board.
(Exhibits not reproduced.)
OPINION OF BOARD:
In order to effectuate the provisions of the
National 40-Hour Week Agreement, Rule 41 of the Agreement between Carrier and the Clerks' Organization was amended by Memorandum Agreement
effective September 1, 1949, eliminating reference to Sunday work so that
the same now reads:
"HOLIDAY SERVICE
Rule 41. Work performed on the following legal holidays:
namely, New Year's Day, Washington's Birthday, Decoration Day,
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Fourth of July, Labor Day, Thanksgiving Day and Christmas (provided that when any of the above holidays fall on Sunday, the day
observed by the State, Nation or by Proclamation shall be considered the holiday) shall be paid for at the rate of time and one-half,
e
xcept that employes on regular seven (7) day assignments and
those who relieve them shall be compensated on the same basis as
on week days." (Underscoring added.)
Prior to September 1, 1949, Claimant was assigned seven days per week.
Thereafter, in order to comply with the Memorandum Agreement of 1949
the assigned days of work of all employes previously assigned seven (7) days
per week were changed to five with two (2) relief days being established.
In the same notice those positions upon which work would be performed
seven days per week were designated.
It is the contention of the Employes that the underscored language of
Rule 41, above-quoted, is superfluous inasmuch as there no longer are any
seven (7) day assignments. Upon this reasoning it is asserted that Claimant
should be compensated at time and one-half for work performed on Labor
Day, 1949.
The Carrier contends that the word "assignments" is synonymous with
"positions" and hence the exception applies.
It is a primary rule of contract construction that all of the language
of an agreement is to be given effect in interpreting the same. Clearly, to
disregard completely the language of the exception in Rule 41 we would
have to find it entirely inconsistent with the terms and purpose, of the
Agreement in which it appears. The change in Rule 41 and other amendments made to the basic Agreement effective April 1, 1947 by the Memorandum Agreement effective September 1, 1949, were designed to accommodate the basic Agreement to the National 40-Hour Week Agreement. One of
the provisions of the latter Agreement was "Existing provisions relating to
pay for holidays shall remain unchanged" and "Existing provision- that
punitive rate will be paid for Sunday as such will be eliminated" To disregard the exception in Rule 41 would require us to hold, in effect, that the
parties in amending Rule 41 only accomplished the one purpose, i.e., eliminating the provision for payment of punitive pay for Sundays as such and
did not accomplish the purpose of continuing existing provisions relating
to pay for holidays. We view the contention of the Employes as attempting
to draw a distinction in meaning between the words "assignments" and
"positions" which does not exist insofar as the wording of the exception
in Rule 41 is concerned. To those familiar with the provisions of schedule
agreements and terminology in the railroad industry no citation of authority
is necessary to establish that frequently the words are used interchangeably
and treated as being synonymous. Apparently, the Employes would agree
that if the wording of the exception were "employes regularly assigned to
seven-day positions" instead of "employes on regular seven-day assignments",
there would be no basis for claim. We believe that the meaning would be
the same, if either phrase were used. The "Note" to Rule 39-1 contained
in the Memorandum Agreement recognizes the continued existence of sevenday positions. We hold that the exception in Rule 41 refers to such positions. This view is entirely consonant with the other provisions of the
Memorandum Agreement and the purposes which it was designed to accomplish. It follows that the claim should be denied.
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 Employes involved in this dispute are respectively
Carrier and Employes within the meaning of the Railway Labor Act, as
approved June 21, 1934;
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That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That Carrier did not violate the Agreement.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT B1AItl)
By Order of Third Division
ATTEST: A. I. Tummon
Acting Secretary
Dated at Chicago, Illinois, this 19th day of March, 1951.