ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN,
PULLMAN SYSTEM
In this dispute the Company has shown that Management fully complied with the provisions of RULE 31. Bulletining of Runs, the controlling Rule in this dispute. Also, the Company has shown that the Rule does not, as contended by the Organization, limit the right of the Company to any specific date during the 5-day award period. Additionally, the Company has shown that unless the Organization can show violation of Rule 31, there has been no violation of any other rule of the Agreement. Finally, the Company has shown that Third Division Award 7141 supports the Company's position in this dispute.
The claim in behalf of Conductor Paul Seeds is without merit and should be denied.
All data contained herein in support of the Company's position have heretofore been submitted in substance to the employe or his representative and made a part of this dispute.
OPINION OF BOARD: On and prior to December 20, 1955, Paul Seeds hereinafter referred to as Claimant, was a regularly-assigned Conductor in Line 4083 of the Company.
On December 20, 1955, Claimant gave written notice of his desire to resign his assignment.
December 30, 1955, after the bulletin had expired, an award was made to Claimant by "reassignment because he was the junior conductor and no other bid was received."
Prior to December 29, 1955, Conductor Zachary was on the extra board junior to Claimant Conductor.
December 31, 1955, he was recalled to service and was on the extra board, and eligible to an award of the assignment on January 4, 1956 only.
Conductor Seeds' resignation would have become effective, if accepted, on the 7th of January, 1956.
Claimant claims that his appointment on the 30th of December and the failure to award Conductor Zachary the assignment, of which Claimant had tendered his resignation, on the 4th of January was in violation of Rules 31 and 32 of the controlling Agreement. That Claimant's resignation became effective and that he should have been placed on the extra board during the signout period of January 7th, and he should be assigned and credited, as stated in 4 (a) of the Claim.
The Company asserts that the assignment of Claimant on the 30th of December was properly made in manner and form and specially authorized by a Memorandum of Understanding between the parties, amending Rule 31, of date September 1, 1955. This memorandum was effective several months before the claim here accrued.
Rule 31 (a) and (d), Rule 32, paragraphs 1 and 3, and Rules 38 and 39, are invoked by the Claimant.
That part of the rule emphasized is the principal subject of controversy between the parties.
Rules 38 and 39 are effective if it is found that the Claim is sustained as to the violation of Rules 31 and 32.
The Memorandum of Understanding upon which the Company relies in the assignment, as made, after naming the parties thereto and the rule affected, recites:
Claimant points out that on the 20th day of December, the date of the tendered resignation, there was a conductor on the extra board; that on the 29th of December, Conductor Zachary's name was on the extra board and it was there on the Hat of December but that he had been furloughed on the 30th. Thus, it appears that had not the name of Conductor Zachary been removed from the extra board on December 30th, the date of the assignment, he would have been eligible for the appointment upon the theory of the Carrier in this submission.
This unusual development is not explained or commented upon by the Company. Standing alone, it permits an implication of lack of good faith. But the Claimant made no effort to elicit or develop the facts concerning this furlough. Inasmuch as we do not consider this development vital to the solution of the issues we make no further comment concerning it.
We assume that the applicable Rules of the controlling Agreement were consummated to permit change of status of employes, if in accord with their desires, as long as such change does not affect or impair the efficiency of the service to be rendered to the patrons of the Company. So here, Conductor Seeds desiring to resign the run to which he was assigned, the rules should support that purpose, if they can be so reasonably construed.
If it be conceded, that an award of an assignment, as contemplated and designated by Rule 31 was made to Claimant on the 30th of December, the Memorandum of Understanding, heretofore quoted, would control the award here in favor of the Company.
Because of the factual developments, we do not believe that the Memorandum does, or was intended to apply in this submission. In so finding, we do not accept the contention of the Claimant that an award was required to be made on the 4th of January because it would have conformed 9110-26
to prior practice of the Company to make awards at the time during the five-day period, set up in Rule 31 (a) which would result in a minimum loss of time to those affected. If the Rule by specific terms or intendment permitted the award here considered to be made on any day within the five day period succeeding the bulletining the Company would not be bound by some practice which it had indulged contrary thereto. We have examined Award 7141, this Division, relied on by the Company and sought to be distinguished by Claimant, and we do not find it applicable as a precedent in this case.
Rules 31 and 32 are in part materia and must be considered together in certain aspects, as developed in this submission.
Claimant was not and could not be a conductor on the extra board on December 30th when the award was made because until January 7, 1956, he was the regularly-assigned conductor on the Line involved. As there was no conductor on the extra board on the 30th of December it was impossible to make an assignment on that date. Had there been such an extra conductor on the board then, clearly, Rule 31 and the Memorandum of Understanding would have applied.
If Conductor Seeds were retained in his assignment it must have been because there was no one to whom an award of the assignment could properly be made within the 5-day period. If retained, he was not assigned to the run. He held his former assignment because his resignation could not become effective. Until that was determined by waiting until the full time of five days had elapsed to determine if an eligible Conductor was on the extra board, no award, as contemplated by Rule 31, was or could have been made. This is true because Rule 31 must, in the situation here presented, be read in connection with Rule 32 and both given meaning.
It is, therefore, our opinion that the right of the Company to make an assignment under Rule 31 (a) on any day within the 5 days succeeding the bulletining of the assignment is predicated on the ability to then make an assignment. Until it is certain that there is no eligible conductor on the extra board for the full five day period, within which the assignment can be made, the Company may not elect to declare Claimant's resignation ineffective and hold that he will be retained in his appointment.
Rule 31 permits the Company, if it desires, to make an assignment where a resignation is tendered, as here, on any day within the 5 days prescribed in the rule, if on that day there is an available assignee.
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 the award here attempted to be made to the Claimant was in violation of Rules 31 and 32 of the controlling Agreement. 9110-21 593
The Claim will be allowed se set up in paragraph 1 (d), paragraph 2 (b), (c), (d), (e) and (f), paragraph 3 (a), and paragraph 4 (a) and (c) of the Claim to the extent that Conductor Seeds be credited and paid in any amount he would have earned had he been given the assignment on January 7th, to Line 3265.
No further award is made as to assignments subsequent to January 7, 1956, because they are not identified with sufficient particularity to support a specific award.