BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATE31EENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: This dispute is between the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes as the representative of the class or craft of employes in which the Claimants in this case hold positions and the Pennsylvania Railroad Company hereinafter referred to as the Brotherhood and the Carrier, respectively.
There is in effect a Rules Agreement, effective May 1, 1942, except as amended, covering Clerical, Other Office, Station and Storehouse Employes between the Carrier and this Brotherhood which the Carrier has filed with the National Mediation Board in accordance with Section 5, Third (e), of the Railway Labor Act, and also with the National Railroad Adjustment Board. This Rules Agreement will be considered a part of this Statement of Facts. Various Rules thereof may be referred to herein from time to time without quoting in full.
All the Claimants in this case are assigned in the Baggage Department, Passenger Station, Harrisburg, Penna., Philadelphia Division, and have seniority dates on the seniority roster of the Philadelphia Division in Group 2.
It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required by the Railway Labor Act to give effect to the said Agreement and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, First, subsection (i) confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions". The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreement between the parties to it. To grant the claims of the Employes in this case would require the Board to disregard the Agreement between the parties thereto and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take such action.
The Carrier has shown that the Carrier did not violate the applicable Agreement when it increased the extra list of Station Baggagemen at the Baggage Department, Harrisburg Passenger Station, during the period November 20 to December 25, 1953, inclusive, and the claim should be denied.
It is respectfully submitted, therefore, that the claim is not supported by the applicable Agreement and should be denied.
All data contained herein have been presented to the employes involved or to their duly authorized representatives.
OPINION OF BOARD: The claim is that the Carrier violated the Rules Agreement, particularly the Scope Rule, Rules 3-A-1 (a) and (c), 5-C-1, and Extra List Agreement No. 2 covering Group 2 employes in the Baggage Department of the Harrisburg Passenger Station "by using curbstone or emergency employes to augment the Group 2 Extra List" in the Christmas mail rush during the thirty-six day period from November 20 to December 25, 1953, inclusive; and that as a penalty each of 252 employes should be allowed thirtysix days' regular pay.
Accordingly, the Division Chairman and the Superintendent of the Philadelphia Division on October 8, 1952, adopted Extra List Agreement No. 2, providing in part as follows:
The preamble of the Extra List Agreement stated that it was adopted "in order to establish a basis for handling extra work accruing to Group 2 employee at Harrisburg Passenger Station, Baggage Department, * * * in compliance with Rule 5-C-1:"
The adjustment on the first Wednesday of each month was to be "based on the number of eight hour tours worked by extra employes during the previous calendar month, the list to be adjusted so as to establish an average of not less than 15 nor more than 21 days per month per assignment." The number on the list was to be changed "at more frequent intervals * * * when changed conditions warrant such action" not necessarily on the basis of the prior month's record, which obviously would be no suitable measure of such changed conditions as during the Christmas rush.
It seems clear from paragraph (3) that the general measure of the numer on the list was to be one position for each 15 to 21 days of work per month, or about the statutory forty hours per week, although it was not expressly stated that the adjustments at more frequent intervals than one month should be on that basis.
The complaint is that the Carrier unilaterally increased the number in violation of the Extra List Agreement. The Carrier's defense is that it repeatedly requested the Division Chairman to agree upon a number adequate to handle the Christmas rush, but that he would not agree because it would deprive regular employes of overtime.
"Commencing November 20, 1953, the Carrier arbitrarily increased the number of employes assigned to the Extra List, and~from this time until December 25. 1953, the number of employes assigned to the Extra List varied from 82 to 208. This increase was accomplished by the Carrier hiring 128 individuals and assigning them to the Extra List"
Thus they deny that any change was requested "in the Extra List Agreement" itself. But they admit that some proposal was made by saying that "the Division Chairman could not concur" in "this proposal," because "it was not in accordance with past practices, understandings of previous years, the Scope Rule, or the Extra List Agreement." What the proposals could have related to other than the number of extra men is not apparent.
The affidavit of C. M. Springer, Supervisor of Mail and Baggage at Harrisburg Station, under whose supervision the extra list was expressly placed by section (5) of the Extra List Agreement, states as follows:
"In November and December, 1953 I was Supervisor of Mail and Baggage at Harrisburg Passenger Station.
"Due to the increased volume of work and the increased number of regular positions necessary at this location in the handling of Christmas mail the number of men on the extra list was insufficient. The existing list was insufficient because of the increased number of regular positions, with resulting need for extra men to fill vacancies in those positions, the increased volume of irregular extra work, and high absenteeism among the employes assigned to the extra list.
"On numerous occasions during this period, with a frequency which I estimate at at least twice a week, I requested Mr. John Kind, Division Chairman, Brotherhood of Railway and Steamship Clerks, to agree to an increase in the number of extra men. The Division Chairman consistently refused to agree to any increase."
This is confirmed by the affidavit of J. H. Dietrich, Supervising Agent on the Philadelphia Division, whose jurisdiction includes the Baggage Department at Harrisburg, and who states:
"On numerous occasions during October, November and December, 1953, I met with John Kind, Division Chairman, Brotherhood of Railway and Steamship Clerks, and requested that he agree to an increase in the number of extra men in the Baggage Room at Harrisburg, but on each occasion the Division Chairman rejected our request and refused to agree to any increase. I have record in my personal memorandum book for the year 1953, of two specific dates 8224-21 537
These statements are not controverted by the record. On the other hand, they are in effect confirmed by the statement in "Position of Employes" that
the Carrier's proposal at the conferences "was not in accord with past practices, understandings of previous years," and by the statement in the Employes' Rebuttal Brief that: "It has been the practice at this location for a number of years for the Carrier to set up arrangements prior to the Christmas holiday season for the use of the existing regular and extra force of station baggagemen to work overtime before the use of 'outsiders' or employes who were hired simply for the Christmas season."
The record thus shows without question that there was an attempt by the Carrier to have the number of employes on the extra list increased to meet the seasonal demands, and that the change was refused because the request was not in accord with the prior practice "of station baggagemen to work overtime before the use of 'outsiders' or employes who were hired simply for the Christmas season."
Since by the express terms of the Extra List Agreement (Section il) it "supersedes previous agreements and practices relating to the handling of extra work at Harrisburg B,lggage Room", obviously the refusal based upon prior practice was unjustified.
The statement is made in the Employes' Rebuttal Brief that "the Carrier has produced no evidence of a written proposal on its part to increase the number of positions on the extra list, or of a written denial on the part of the Division Chairman:" (Emphasis added.)
There is no requirement that the proposal or its denial be in writing. The Employes cite the provision in 5-C-1 of the Agreement that "the number of extra employes to be used * * * will be determined by written agreement between the Management and the Division Chairman". The original number of 80 is so determined by Extra List Agreement No. 2, and the changes should likewise be so determined. But there is no requirement that the negotiations for such changes shall be in writing.
The Carrier contends that it did not use curbstone or emergency employes because it bulletined the additional provisions on the extra list. There appears to have been a real attempt to comply with the Agreements under the circumstances.
The contention is made that the Employes' attitude could not justify the Carrier's unilateral action. Yet it was the Carrier's obligation to the public to handle the Christmas mail, and under the circumstances the record does not suggest how it could have acted much differently.
Furthermore, the questions before this Board are not only whether the Carrier's unilateral action was justified under the circumstances, but also whether its action was so outrageous as to justify a penalty of 9072 days' pay at about $14.00 per day, or $127,000.00. 8224-22 538
Under the circumstances, the Carrier's unilateral action was necessitated by the Employes' refusal to comply with Extra List Agreement No. 2. Thus the latter are in no position to complain, or to seek even a reasonable penalty.
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