THE ATCHISON, TOPEKA AND SANTA FE
RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: In adjusting the monthly rates of Section and Fence Gang Foremen with more than one year of service as such, so as to include 56 hours of holiday pay pro-rated over the twelve months of each calendar year, the Carrier failed to use the annual compensation paid to such employes as the figure to which the equivalent of 56 pro rata hours was added and likewise failed to use the monthly rate applicable to Section and Fence Gang Foremen with more than one year of service as such as the rate to multiply by 12 in order to determine the annual compensation accruing to such employes. In addition, the Carrier did not add the equivalent of 56 pro rata hours of the monthly rate paid to Section and Fence Gang Foremen with more than one year of service as such.
In lieu thereof, the Carrier used the Annual compensation paid to a first year Section and Fence Gang Foreman (the monthly rate of a first year Section and Fence Gang Foreman multiplied by 12) as the figure to which the equivalent of 56 pro rata hours was to be added and then added thereto the equivalent of 56 pro rata hours of a first year foreman's position.
It is abundantly clear that the Agreement of August 21, 1954, Article II, Section 2 (a) stipulated that-
We cannot agree with argument on behalf of Carrier that (agreement effective January 1, 1953) "the only wage rate the parties specifically negotiated was that for the first year or base rate to which the differential is added. The other rates shown are for information purposes only. This is obvious because the same information can be arrived at through application of the differential to the base rate."
Argument by and in behalf of Carrier cites denial Award 6920 in support of its position here. The facts in this case clearly distinguish it from those obtaining in Award 6920.
In the latter, a 151/2 cents per hour across-the-board wage increase was involved. In this case we have an agreement providing paid holidays-in other words, to allow each employe 8 hours pro rata for the number of holidays specified. Each employe covered was, in effect, to be paid for such holiday, when it falls on a workday of his workweek, the same as he is paid for a regular work day.
In this case we have a wage appendix clearly providing a rate, in the case of a Section or Fence Gang Foreman with 5 or more year's service in such position, of $291.34 per month. A foreman, in his first year of service as such, receives $271.34 per month. The former receives higher earnings on a monthly basis and on a daily basis than the latter.
The appendix does not refer to any of the five Section and Fence Gang Foremen monthly rates as a "basic rate;" it does refer to the $291.34 per month (for 5 or more years' service) as "the maximum rate." 8492-17 450
In Award 6920, the Agreement there applicable (Rule 64(a)) specifically provided, for new employes without previous railroad clerical experience, a schedule of payments during their apprenticeship based on a specified percentage of the "basic rate of positions worked." There is no such provision in this case.
Here the earnings of a Section or Fence Gang Foreman increase with each year of service for the first five years, by Agreement. He receives such increase by reason of such service as a foreman. Such increase is most certainly a part of his "annual compensation."
The August 21, 1954 Agreement with respect to holidays decreeing, as it did, that "monthly rates * * * shall be adjusted," we must and will hold here that such monthly rates should have been the monthly rates of Section and Fence Gang Foremen in the five classes of service specified in the Wage Appendix to the applicable 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
In this dispute, the majority, by specious reasoning and by failing to recognize and apply universal principles of contract construction, reach an erroneous conclusion.
Assuming some inconsistency as between the two rules involved, the sustaining Award here renders meaningless one of the two rules bearing on this dispute. This rule reads:
This Board in its awards has stated time and again that language in any rule or portion of a rule may not be treated as superfluous or meaningless.'
One universal princip:e of contract construction so well established that no citation of authorities is necessary is that when terms of an agreement are inconsistent or uncertain they will be construed so that no part of the Agreement will be disregarded or made meaningless. Still another is that where language of one provision or rule of an agreement or contract is susceptible of two interpretations, one of which will nullify another and the other will give it meaning, it will be construed in such manner as to give both provisions force and effect
Applying these principles here, the provisions of Section 2(a) of Article II of the August 21, 1954 Agreement should have been interpreted so as not to nullify nor to make meaningless the provisions of the rule in the basic Agreement between the parties, quoted supra, and should have been construed in such manner as to give such provisions force and effect.
· Awards 3189, 3259, 3842, 4322, 4451, 5207, 5267. 6258, 6311, 6723, among the many.