THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes that:
(a) Section 2 of the Agreement, effective December 1, 1948, attached to Mediation Agreement in Case No. -2996 but not made a part thereof, both signed November 18, 1948, copies of which are attached as Employes' Exhibits "A" and "B", respectively, did not curtail or in any way modify the rights and equities of employe C. C. Hasecoster to such positions as were within the sphere of the Muncie, Indiana, joint terminal roster, when the joint operation of Freight Office, Warehouse, and Yard facilities at Muncie, Indiana, was terminated, effective December , 1948, pursuant to that Agreement.
(b) Employe C. C. Hasecoster, whose seniority date and rights on the joint terminal seniority roster prior to December 1, 1948, was as of July 13, 1923, at which time the positions listed below were within the sphere of such joint terminal roster, shall now be restored to the same status he enjoyed immediately prior to December 1 1948, insofar as his rights and equities to such positions are concerned, but without any rights to retroactive adjustment in wages. That status to continue so long as he remains in the service of the New York, Chicago and St. Louis Railroad Company and is assigned to one of such positions and his rights are not otherwise adversely affected by the operation of Agreement Rules, extent between the parties.
Positions within the sphere of the joint terminal roster, name of incumbent, rank and seniority date as of November 30, 1948:
EMPLOYES' STATEMENT OF FACTS: Pursuant to Memorandum Agreement, dated April 25, 1933 copy of which is attached as Employes' Exhibit No. 1, C. C. Hasecoster, then Warehouse Foreman, and three other clerical employes of the Chesapeake and Ohio Railway Company (hereinafter referred to as the C&O), were transferred to the New York, Chicago and St. Louis Railroad Company (hereinafter referred to as the Nickel Plate), in a consolidation of Freight Office, Warehouse and Yard Operations made by the two Carriers at Muncie, Indiana, effective May 1, 1933, and in accordance with the provisions of tht agreement were accorded their accumulated clerical seniority dates on the Muncie joint terminal roster and a clerical date of May 1, 1933, on the New Castle Division seniority roster of the Nickel Plate Railroad.
The clerical employes transferred with Hasecoster from the C&0 to the Nickel Plate in 1933 are not here involved. As of May 1, 1933, Mr. Hasecoster was assigned to the position of General Clerk and retained that position until January of 1939 when with his accumulated date of July 13, 1923, on the Muncie joint terminal roster, he bid for and was assigned to the position of Cashier, which he still occupied December 1, 1948, when the joint operation was terminated.
The C&O on April 29, 1948, served notice on the Nickel Plate of its desire to terminate the joint terminal arrangement at Muncie, effective as of midnight November 30, 1948. On July 31, 1948, the two carriers served notice on the General Chairmen of the Clerks Organization on their respective roads of their desire to make the necessary changes in the arrangement covered by the Memorandum of Agreement, dated April 25, 1933, effective May 1, 1933, (Employes' Exhibit No. 1), and change Section 6 of Mediation Agreement, Case A-225, dated May 20, 1936, by eliminating that part referring to Muncie, Indiana, the last referred to agreement having no bearing in this case. The notice served on the two General Chairmen under date of July 31, 1948, reads as follows:
handled on the property and is not properly before this Board; that in the event the Board takes jurisdiction to hear the case, all employes who will be adversely affected by a sustaining award, should e notified of the hearing; and without waiving those objections, tere is no merit in the claim made and it should be denied.
Inasmuch as the Carrier has shown that the present claim is not the same claim handled on the property and has not been handled in the usual manner as required by the Railway Labor Act, does not yet know the effect or mechanics of establishing a "sphere of the joint terminal roster" and as it totally rejects the ex parte listing in the Employe's Statement of Claim of Positions within sphere of the joint terminal roster, name of incumbent,, rank and seniority date as of November 30, 1948," as an arbitrary list without foundation in fact or agreement, it is not in a position to certify that all data submitted in support of arrier's position have been presented to the other party and made a part of this particular question." If by the other party, the representative of the Brotherhood signatory to the current working agreement (General Chairman of Nickel Plate System Committee) is meant, then all data submitted in support of Carrier's position have been submitted to the other party, the parties are in agreement and there is no dispute.
OPINION OF BOARD: Prior to May 1 1933, the C. & 0. Railroad and the Nickel Plate Railroad maintained separate terminal facilities at Muncie, Indiana. Clerical employes employed at the C. & 0. Muncie terminal facilities had seniority on the Chicago Division of the C. & 0., along with other employes located at various points on that Division. Nickel Plate clerical employes working in the Nickel Plate terminal facilities at Muncie had seniority on the New Castle Division of the Nickel Plate along with Nickel Plate employes located at other points on the New Castle Division.
Effective May 1, 1933 the Carriers consolidated their separate terminal facilities at Muncie. A Memorandum of Agreement dated April 25, 1933 was signed by representatives of the two railroads and of the clerical employes of the two railroads setting forth the rights of these employes in the establishment of the joint terminal. This Memorandum provided as follows:
Claimant, then a warehouse foreman on the C. & O., transferred effective May 1, 1933 to the position of general clerk in the joint terminal. In accordance with the Memorandum of Agreement, Claimant was assigned a seniority date of 7-13-23 on the joint terminal roster, which was his original seniority date on the C. & 0. He was also assigned a seniority date of 5-1-33 on the New Castle Division of the Nickel Plate. In January, 1939, Claimant bid for and was assigned to the petition of cashier on the Muncie joint terminal roster. He occupied this position until February 1, 1950.
The Carriers terminated their joint terminal arrangement at Muncie effective as of midnight, November 30, 1948 and returned to separate operations at that point. Prior to that time, on November 18, 1948, the two Carriers and the representatives of their clerical employes entered into an agreement defining the rights of clerical employes in connection with the discontinuance of the joint terminal. The pertinent provisions of this agreement are as follows:
Four Nickel Plate employes, not including Claimant, transferred to C. & 0. positions under this Memorandum. As of December 1 1948 there was no longer a joint terminal and the joint terminal roster of the Nickel Plate at Muncie was discontinued. After that date, Claimant was carried only on the New Castle Division roster with a seniority date of 5-1-33. Claimant was displaced from his position of cashier effective February 1, 1950 by an employe who held seniority date of 3-22-24 on the New Castle Division roster.
The claim is that Claimant is entitled to his original C. & O. seniority date of 7-13-23 as to all positions "within the sphere" of the joint terminal roster and that his seniority date as to these positions be restored to 7-13-23.
The record shows that after the signing of the November, 1948 Memorandum, Claimant, the General Chairman of the Nickel Plate and the mem- 7481-21 45 7
bership of the Clerks' Local Lodge at Muncie all interpreted the Memorandum -specifically Section 2 thereof-to mean that Claimant's only remaining seniority date on the Nickel Plate was May 1, 1933; and all of them took the
position that some arrangements should be made to allow Claimant to return to the service of the C. & O. with his original C. & O. seniority date. However the Vice-Grand President of the Clerks, who had entered into the November Memorandum on behalf of the employes of the Nickel Plate due to the illness of the Nickel Plate General Chairman, and the Grand President of the Clerks disagreed with this view and took the position which is set forth in the claim. The claim was filed by the Grand President.
Carrier contends, based upon the above facts, that no dispute exists between the employes or their representative on the Nickel Plate and the Nickel Plate management, and that therefore the claim should be dismissed. A number of awards are cited to support this contention including Award 7061 of this Division. In that Award, and in other awards cited by Carrier, the General Chairmen had entered into settlements with the Carriers of claims filed on the respective properties. The claims were then brought to the Board by the National Organizations involved, which disagreed with the settlements made by their General Chairmen. In those cases, it was held that the claims should be dismissed because the General Chairmen had full authority to make such settlements. Here, however, although it does appear that the General Chairman agreed with the Carrier's position in the dispute, he did not purport to reach any settlement with the Carrier after the claim was filed by the aggrieved employe and before it was filed with this Board by the Grand President. We therefore do not consider the awards cited to be controlling and we will not dismiss the claim on this basis, but will consider it on the merits.
Considered on the merits, we feel that the claim must be denied. Claimant's right to carry his C. & 0. seniority over to the Nickel Plate was based entirely on the Memorandum Agreement of May, 1933. Such right was clearly limited by that Agreement to the joint terminal positions. The basis for allowing Claimant to carry his C. & 0. seniority over to the Nickel Plate joint terminal positions was that the work of the joint terminal was as much C. & O. work as Nickel Plate work, even though the employes were to be covered by the Nickel Plate Agreement.
The Memorandum of 1948 specifically cancelled the May 1, 1933 Memorandum in its entirety. On December 1, 1948 the joint terminal ceased to exist. Under the terms of the 1948 Memorandum, no provision was made for Claimant to return to the employment of the C. & 0.; instead he remained on his same position with the Nickel Plate. However, this position was no longer a joint terminal position since there was no longer any joint terminal. Neither his position nor any other Nickel Plate terminal position any longer involved any work for the C. & O. The original reason for his retention of his C. & 0. seniority as a Nickel Plate employe no longer existed and the contractual basis upon which he retained it-the May, 1933 Memorandumwas specifically cancelled by the November, 1948 Memorandum.
Under the terms of these two Memorandums, it is clear that the only seniority date available to Claimant on his now exclusively Nickel Plate position is the date upon which he began to work as a Nickel Plate employeMay 1, 1933. It is asserted by the three signatories to the November, 1948 Memorandum other than the Nickel Plate, that this result was not intended by that Agreement. However, their interpretation is not reflected in the language of the Agreement. In our view, as in the original view of the Nickel Plate, the Nickel Plate General Chairman, the membership of the Muncie Local Lodge, and the Claimant himself, the clear effect of Section 2 of the 1948 Memorandum is to deprive Claimant of any seniority on the Nickel Plate prior to May 1, 1933.
If the parties are agreed that an injustice has been done to Claimant, they should be able to negotiate an equitable adjustment of his status. 7481-22 45S