BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, that:
1. Carrier violated and continued to violate its agreement with the Brotherhood when on January 28th, 1950 and again on January 30th, 1950 and on each succeeding Saturday and Monday thereafter, until Saturday September 23rd, 1950, when this practice was discontinued, it brought in and worked persons from the outside, persons without established seniority and who held no right under the agreement between the parties, and failed and refused to permit employes:
on January 30th, 1950, with established seniority, who were available and ready to perform this work, to work on their designated rest days and be paid for same.
2. That the Carrier shall now be required to compensate the employes listed in above paragraph four (4) hours pay for the first two (2) hours and time and one-half for the next six (6) hours, total thirteen (13) hours pay at straight time on the days listed, as provided for in the agreement between the parties, and
3. That the Carrier be required to compensate employes who were entitled to work by reason of their seniority, in a like manner on each succeeding Saturday and Monday, when work was performed by persons who had no seniority or rights under the agreement, until this practice was discontinued the week of September 18th, 1950, when a work week of five days, Monday to Friday inclusive was established and work on Saturday given to employes entitled to such work, under the terms of the agreement in effect between the parties.
EMPLOYES' STATEMENT OF FACTS: Prior to the week of January 23, 1950, the Wells Street Freight House of the Chicago & Northwestern Railway System at Chicago, Illinois operated on a five day week basis and all employes were regularly assigned a work week of five days, MonJay to Friday inclusive, such employes having a guaranteed work week of five days each week, under an agreement in effect between the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employs and the Chicago and Northwestern Railway System, covering this operation, dated August 21st, 1947, effective September 1st, 1947, and revised effective September 1st, 1949.
Effective with the week of January 23rd, 1950, management, without conference and agreement with the employes, changed their operation to a six day week, Monday to Saturday inclusive, the positions were bulletined and assigned on a five day basis, either Monday to Friday inclusive, (Rest Days Saturday and Sunday); or Tuesday to Saturday inclusive, (Rest Days Sunday and Monday).
Starting with Saturday, January 28, 1950, management brought in nineteen (19) persons off the street, namely:
At no time in handling the claim on the property have the employes furnished documentary evidence that those who may have been employed on Mondays and Saturdays to supplement the organization or to fill vacancies were not bona fide employes under the provisions of schedule rules applicable or that they did not establish a seniority date in line with the provisions of rule 3. It is further the position of the corner that:
All data used in support of the carrier's position has been previously submitted to the authorized representative of the employes.
OPINION OF BOARD: Prior to September 1, 1949 Carrier assigned its employes engaged in the handling of National Carloading Corporation business at the Wells Street Freight Station on a six-day basis. With the institution of the 40-hour week after September 1, 1949 those forces were assigned on a five-day basis until the week of January 23, 1950 when the Carrier put into effect a six-day operation with a portion of the regularly assigned employes being assigned to work Monday through Friday and another portion Tuesday through Saturday. Claim is made by the Employes on behalf of those regularly assigned employes who were on rest day status on given Mondays and Saturdays when the Carrier employed so-called transient labor to supplement the force. The claim terminates with the date of September 23, 1950 when the operation was changed back to five days and work on Saturdays was given to employes with established seniority. It appears that these so-called transient employes were hired on a day to day basis being paid at the close of that day and re-hired as needed on the same basis, Carrier contends that they are bona fide new employes and cites Rules 2 and 3 of the Agreement in support of its contention. The said rules provide as follows:
There is no question that the work performed by these "transient" employes was work within the Scope of the Agreement between the Carrier and its employes represented by the Brotherhood of Railway and Steamship 5620-11 159
Clerks. The work, therefore, belonged to employes acquiring seniority under that Agreement. To permit of its performance by outsiders neither holding nor acquiring seniority rights under the Agreement while there are employes holding seniority rights available to perform the work even though it be on an overtime basis, in our opinion is destructive of the intent and purposes of the seniority provisions of the Agreement. The fact that the Agreement provides that seniority of an employe begins at the time his pay starts does not confer seniority rights upon these transients. They appeared on no seniority lists, many of them held regular positions in other types of employment and all of them terminated their "employment status" on the day it began and were again re-hired on the same basis. They were not bona fide new employes (See Awards 4495, 5501 5558, 5078). A sustaining award is in order. However, the penalty will be allowed at the pro rata rate at straight time for eight hours instead of the thirteen hours at straight time as requested, except as to holidays which shall beat the punitive rate.
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
This claim was sustained on the basis of an erroneous conclusion reading in part:
Seniority rosters, as this Board has stated time and again, do not create or confer seniority. However, seniority is created and conferred by Agreement rules. Rules 2 and 3 of the Agreement applicable herein, by their very unambiguous terms, confer seniority rights upon these new employes.
Each of the four awards cited by the majority as lending support to their conclusions, was based entirely upon different rules from those in evidence in this dispute, and are inapposite.
The Organization by its actions in regularly collecting dues from these employes over a period of years recognized them as such.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
NAME OF ORGANIZATION: Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.
Upon application of the representatives of the carrier 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 issue involved in this request for interpretation is whether or not the monies payable under our Award include payment of compensation to employes deprived of work on rest days because of the use of transients in tilling vacancies caused by regular employes laying off or being absent for other reasons on the Saturdays and Mondays involved during the period covered by the claim.
The distinction which the Carrier seeks to draw between the use of transients to fill vacancies of the nature above described and those used to "augment" the force is untenable. We sustained Item 3 of the Statement of Claim without qualification except as to measure of compensation sought and that item includes for violation of the agreement because of the performance of work by persons who had no seniority rights under the agreement. It was just as much a violation to permit the performance of work on the vacancies referred to by persons holding no seniority rights under the agreement as it was to use such persons to "augment" the force. Payment under the Award should, therefore, include compensation to employes affected by such use of transient employes.
Referee Francis J. Robertson, who sat with the Division as a member when Award No. 5620 was adopted, also participated with the Division in making this interpretation.
DISSENT TO INTERPRETATION NO. 1 TO AWARD NO. 5620,
DOCKET CL-5592-SERIAL 125
That such statement is erroneous is clearly evidenced by the following statement of fact in the Opinion of the Board (Award 5620):
The record in Docket CL-5592 is the basis for the Statement of Fact quoted supra. The only claim before the Board in Docket CL-5592 based on facts, evidence and argument submitted by the Organization was on behalf of employes on rest day status on Mondays and Saturdays when socalled transient labor was used to augment or supplement the force. In arriving at its Award the Board has this question and this question only for consideration.
The Award read: "Claim sustained to the extent indicated in Opinion and Findings" clearly showing that the claim was being limitedly sustained for employes, regularly assigned, who were on rest day status on Mondays and Saturdays when so-called transients were used to supplement the force. (Emphasis supplied).
The majority, under the guise of an interpretation, have now expanded and extended Award 5620.