STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that: (a) The Bureau violated rules of currently effective agreement with the Brotherhood dated September 1, 1949, in not allowing senior employees to fill short vacancies beginning July 7, 1952, as listed herein.
(b) Mr. E. A. Reeder for the difference between his rate of pay of $14.35 and the rate of $16.43 per day attached to Position No. 215, Inspector, from July 9, 1952, until the position was awarded by bulletin on August 21, 1952.
(c) Mr. A. A. Chidsey for the difference between his rate of pay of $16.16 and $16.43 per day attached to Position No. 216, Inspector, to apply from August 4, 1952, and all other days that the position was on a temporary appointment.
(d) Mr. E. T. Escandell for the difference between his rate of pay of $12.85 per day on Position No. 119 and the rate of $14.41 per day attached to Position No. 147, Transit Auditor, from July 9, 1952, when junior employee W. T. Marseilles was awarded Position No. 215 until the Transit Auditor Position No. 147 was properly bulletined on August 21, 1952.
EMPLOYEES' STATEMENT OF FACTS: It is conceded the claimants were all regularly assigned employees of the Bureau with assignments Monday through Friday with Saturday and Sunday as designated rest days, New Orleans, Louisiana. Employees' Exhibits 1 and 2 covers the new Position No. 215, Inspector, that was first temporarily assigned to Mr. Marseilles and the Transit Auditor Position No. 147 vacated by Mr. Marseilles and bulletined August 21, 1952. The duties and responsibilities for the new Positions No. 215 and 216 are identical.
The Employees' Exhibit 3 dated July 11, 1952, notifying the Bureau that claim was being made in behalf of Claimant Reeder account junior employee being assigned to Position No. 215 and it is well to note the information obtained by the Employees was not from official Bureau sources that such a position was established.
"(a) Employes covered by these rules shall be in line for promotion. Promotion, assignment and displacement shall be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail.
"(a) New positions or vacancies (except those of thirty (30) calendar days or less duration) will be promptly bulletined in agreed upon places accessible to all employes affected for a period of ten working days, except where employes are furnished copies of bulletins, posting requirements will have been fulfilled. * * *"
I am making claim for each day worked by Mr. Marseilles in the difference of the pay of the position that Reeder now holds ($14.35 daily) against the pay of the new position of $16.73 per day, both of which are subject to cost of living adjustments."
Position No. 216 was established on August 4, 1952, abolished August 8, 1952, reinstated Sept. 12, 1952 and abolished Sept. 15, 1952 and has remained abolished since that date.
On August 4th 1952 A. A. Chidsey, Chairman District Protective Committee filed a claim with the Bureau by letter addressed to the District Manager in the following language:
When Position 215 was bulletined neither of the Claimants made application for the position.
It is the duty of the Board to interpret agreements as made by the parties and where essential, to review the acts of the parties within the framework of that to which they have agreed.
As to the matter of notification to employees, we find no provision in the Agreement, more particularly Rule 7, which requires that the Bureau notify employes by Bulletin or otherwise about a "new position or vacancy of thirty (30) days or less duration."
As to the question of Assignment on the basis of seniority; although there are Awards to the contrary, the Board finds that the more consistent and later Opinions of the Board agree with the Rule as expressed by the Board in its Award 3232 where we held:
The Bureau makes the point that the Claimants under the provision of Rule 7 (d) and 7 (e) never "requested" the positions but only claimed the difference in pay rate between the new positions and the ones they were holding.
In examining the claims as filed we find nowhere any language which would indicate that the Claimants requested assignment to the new position. As delivered to the Carrier the claim seems to say "You have made a mistake--pay me." The subsequent fact that neither Claimant made application for the new position when it was bulletined bears out that interpretation. Although no technical language is required by the Board in making claims for assignment there should be a declaration sufficiently clear to put the Bureau on notice as to the contention of the Claimant (Awards 5255 and 6350). We hold that a claim for payment, especially when made while the basis for the claim continues after the demand, and a claim for assignment on the basis of seniority are not synonymous nor does the former constitute notice of a "request" for assignment to the contended position.
No where in the record is there any evidence that the Claimants were not qualified.
In (d) above Mr. Escandell claims the difference in pay between his position and that which Mr. Marseilles was occupying when lie was transferred to position 215 while it was classified as "temporary", from the date the position was vacated by Mr. Marseilles until properly bulletined. It is conceded that Position Number 147 was vacant until bulletined.
The Bureau was within its rights in keeping this position temporarily vacant and there being no employee assigned, there van be no violation of seniority rights and no valid claim for either assignment or pay during the period requested. When filled the position was filled in strict accord with the Agreement.
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
That (a) Carrier violated the Agreement; (b) (c) (d) the Agreement was not violated. 8485-1z 390
We concur in denial of claims (b), (c) and (d). However, for obvious reasons we dissent to the award sustaining claim (a). In the absence of conclusive showing that the Carrier did not allow senior employes to fill short vacancies, claim (a) should also have been denied. Admittedly, there is no provision in the Agreement which requires that the Carrier notify employes about a new position or vacancy of thirty days or less duration. In addition, as stated in Opinion, "In examining the claims as filed we find nowhere any language which would indicate that the Claimants requested assignment to the new position."
After properly analyzing the facts and the application of the Agreement rules thereto in other respects, the majority erred in applying a general rule of seniority to a situation provided for by specific rule, thus ignoring the universal rule of contract interpretation that the specific controls the general. Inasmuch as a position may be more or less desirable because of rate of pay, hours of duty, nature of work, etc., the pertinent rule specifically gives the senior available qualified employe the choice-to request it, or to refrain from doing so without peril to seniority rights.