STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, that:
(1) The Carrier violated the Agreement when it failed and refused to compensate track department employes assigned to Sections 121, 138, and 154 at the respective applicable Bridge & Building sub-department rates of pay for work performed in the unloading and handling of bridge and building materials on July 2, August 13, 14, 18 and 19, 1953;
(2) The Carrier now allow each of the employes hereinafter named the difference between what he was paid and what he should have been paid at the applicable B. & B. rates of pay; number of hours each consumed in performing the Bridge and Building work referred to in part (1) of this claim:
EMPLOYES' STATEMENT OF FACTS: The Employes identified in Part (2) of the Statement of Claim are regularly employed as section laborers
section men) on the respective track sections as shown in the Statement of laim.
On the dates listed in the Statement of Claim, the Claimant section men were assigned to and did perform work of unloading and handling Bridge and Building materials; the number of hours consumed by each respective Claimant in the performance of such work being shown in Part (2) of the Statement of Claim.
For such services, the Claimant employes were compensated at the regular section laborers' rate and the Carrier has refused to compensate them for such services at applicable Bridge and Building Subdepartment rates of pay.
The work of unloading or handling bridge materials has heretofore been recognized as Bridge and Building work by the Carrier's Chief Engineer, when under date of July 27, 1948, he addressed a joint letter to Mr. M. . Carothers, Assistant Chief Engineer on the Carrier's Northern Region and to Mr. J. V. Johnston, Assistant Chief Engineer on the Carriers Southern Region, reading as follows:
quantities, and stockpiled in the various locations depending upon the circumstances and space available. Certainly no one would say that the handling of such lumber is exclusively the work of Carpenters or that Laborers cannot properly load and unload lumber.
The Employes have shown no justifiable reason whatsoever why Section Laborers should be paid Carpenter's rates of pay in this case. Clearly, such was never the intent of the agreement and is contrary to the accepted practice over the years.
For the reasons herein set forth, we think that the claim is without merit and should be declined.
This claim has been handled in accordance with the provisions of the Railway Labor Act, as amended.
OPINION OF BOARD: The claims before us involve employes of the several sections mentioned in the Statement of Claim; and is a request for a higher rate of pay for work performed while unloading and stock-piling bridge materials at Louisiana, Mo., Glasgow, Mo., and Independence, Mo., on the dates stated. Carrier paid tese section laborers at their regular rate of pay, whereas they contend that the work performed calls for pay at Bridge & Building sub-department rates.
These claims are based on Articles 22, 30, and 32 of the parties' Agreement, together with a memorandum issued by the Carrier's Chief Engineer July 27, 1948. The pertinent language follows.
This Agreement was effectuated February 7, 1950, and is applicable only to the Company's Northern region. A separate agreement was concluded by the parties to cover the Company's Southern region. This was dated April 28, 1950. The fact that there are separate agreements for the Northern and Southern regions is of significance to us here. The Northern region includes the property formerly known as the Alton Railroad. Under the Carrier's Chief Engineer there is an Assistant Chief Engineer for each of the two regions.
Because of a dispute which arose on the Southern Region in 1948, a compromise settlement was reached whereby a section gang was given badge gang laborers' pay for handling B. & B. materials. Following this settlement 7156-19 645
Petitioners in the matter now before us call our attention to the fact that this latter communication did not reach the General Chairman, and in effect the July 27, memorandum from the Chief Engineer became a matter of agreement between the parties, applicable on both the Northern and Southern regions. In fact, the instant claim rests upon such a premise.
The August 3, 1948 communication from Assistant Chief Engineer Carothers explained what the practice had been on the Northern Region and how it differed from the position taken by the Chief Engineer in settling the grievance on the Southern Region. Apparently the principal difference arose from the fact that the Southern Region had and continues to have "bridge gang laborers", a classification not employed on the Northern Region.
Furthermore it appears that the practice on the Northern Region, both before and after the communication of July 27, 1948, has been one of paying section laborers the higher rate for bridge work only when they actually performed "work on bridges and work that definitely required and showed a higher skill than that of section laborers". This is not an unreasonable practice and should not be disturbed by us until such time as the parties have adopted language in their agreement which is clearly to the contrary.
Claimants insist that the Chief Engineer's July 27, 1948 letter became the basis of such an agreement. This claim is predicated upon the fact that copies of this memorandum were sent to both the Assistant Chief Engineer in charge of the Northern Region and the General Chairman, as weV as to the Assistant Chief Engineer in charge of the Southern Region.
The Carrier insists that the memorandum of July 27, 1948 and the reply memorandum of August 3, 1948 were simply an exchange of inter-office communications and that neither is in any sense a binding agreement between the parties. The former communication stemmed from a compromise settlement reached in connection with a particular situation which arose in the Southern Region; and the latter explained the prevailing practice under the Agreement on the Northern Region. There was no agreement reached by the parties which would in any way qualify the language of the February 7, 1950 Agreement on the Northern Region, and if so, the Carrier contends the 7156-21 647
Agreement which is of later date is the final word and takes precedence over all prior memoranda (Article 32).
There are many examples of "letter agreements" which are valid and enforceable. They generally take the form of an offer or proposal, from one party to the other, and a reply of acceptance. Or such memoranda agreements may be countersigned. The July 27, 1948 memorandum from the Chief Engineer to other Company officials was neither. The communication was neither addressed to the General Chairman nor acknowledged by him. Therefore, this memorandum lacked the usual formalities of a written agreement.
What the memorandum did, however was to make clear the terms of a settlement reached on a particular issue which arose on the Southern Region. It is binding on the parties in the sense that it sets forth the practice to be followed where the facts and the circumstances are the same. But we do not think that the sending of a copy of this memorandum to the General Chairman, in and of itself, should change the practice on the Northern Region.
We cannot overlook the fact that historically there are two regions, two agreements, and two sets of practice and precedents. The memorandum of August 3 1948 sets forth the practices and precedents on the Northern Region just as clearly as the memorandum of July 27, set forth a procedure to be followed on the Southern Region.
The work performed by the claimants was not bridge work which required a higher degree of skill and ability than that normally performed by them. The pertinent language of the Agreement (Article 22) requires the payment of a higher rate only where the employe is assigned to do work of a higher rate. There employes only unloaded and stored certain materials to be used in bridge construction at another time and place. They did not perform any of the functions of B. & B. work as those are defined in Article 30. Therefore, we can see no basis for sustaining this claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon 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