PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES


CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD

COMPANY


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:






EMPLOYES' STATEMENT OF FACTS: Employe F. A. Kuenzli, seniority date of August 13, 1941, was regularly assigned to Position #36, Car Clerk at the Air Line Yard, Milwaukee Terminals, Wisconsin. The assigned hours were 3:59 P. M. to 11:59 P. M. Thursday through Monday with rest days of Tuesday and Wednesday.

 Position #36 was relieved on Tuesday and Wednesday by Relief Position #3 which was assigned to Employe G. A. Brown, Jr. from May 4, 1950
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    All data contained herein has been presented to the employes.


    (Exhibits not reproduced.)


OPINION OF BOARD: The Claimants herein contend that the Carrier has violated Rule 14 (c) by requiring certain employes to work until 1:00 A. M. The Rule states that where three consecutive shifts are worked covering the 24 hour period, no shift will have a starting or ending time after 12 midnight and before 6:00 A. M. The Carrier determined that it was necessary to keep a Train Clerk in Position #36 on duty until 1:00 A. M. to perform certain weighing functions. The record discloses that three consecutive shifts of Train Clerks were working during the 24 hour period. Since the evidence fully supports this finding, largely by the Carrier's own admission, it clearly follows that these Claimants were required to work at a time prohibited by the Agreement. The Carrier's assertion that the appeal was not properly filed within the time limit is without merit. There are many awards holding that a notice of intent to file an appeal within 30 days, which is filed within that time, satisfies the Rules of the Board and the requirements of the Railway Labor Act, as amended. We concur in these decisions and find that the instant claim was properly appealed.


It is our opinion that the Carrier, by way of defense, has attempted to apply the wrong rule to this situation. The Carrier argues that the last sentence of Rule 14 (d) is applicable, but makes little or no mention of the first part of (d) which clearly refers to starting time and provides that exceptions may be made by mutual agreement. The dispute in this case involves the ending time not the starting time. The last sentence in (d) refers to how such assignments may be established with an ending time contrary to the prohibitions in (c). It seems clear to us that "such assignments" in (d) refers to those exceptions which have been established by mutual agreement between Management and the General Chairman. There is nothing in this record to indicate that such a mutual agreement existed. In fact, there is no evidence indicating that the parties ever attempted to reach such an agreement prior to the change of hours. It is our opinion that Part (c) controls this dispute, and since three consecutive shifts were worked during the 24 hours and since the Claimant's hours of work were changed to end at 1:00 A. M. that change constituted a violation of the Agreement.


This Board has for a long time held that penalty pay of time and onehalf may be awarded for a breach of the Agreement by the Carrier. Since the occupants of the position in this case received straight time for the hour worked they are, under this award, entitled only to additional payment equal to one-half of the straight time rate which would represent the difference between the straight time rate allowed for the hours in dispute and the time and one-half rate claimed for that hour. It will be so awarded.


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

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    That the Carrier violated the terms of Agreement.


                  AWARD


    Claims sustained in accordance with Opinion and Findings.


              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


              ATTEST: S. H. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 19th day of February, 1960.

DISSENTS TO AWARDS NOS. 9245, 9246, DOCKETS

NOS. CL-8214, 8215


The conclusions expressed in the Opinions in these Awards Nos. 9245 and 9246 are in gross error because they misrepresent the facts and misinterpret Sections (c) and (d) of Rule 14.


In the Opinion in Award No. 9245 appears the statement that "The Carrier asserts that three consecutive shifts were not in existence at the time involved herein, because all of the various classes and crafts were not employed on each of three shifts, but does admit that a Mail and Baggage Sorter did work three consecutive shifts covering a 24 hour period." The Carrier made no such admission. Carrier's Statement of Facts said,


    "The only classification which was so assigned as to cover the 24-hour period, although not on the basis of three consecutive shifts, was the Mail and Baggage sorters."


Furthermore, Carrier's Position stated, in part:-

    "The employes have entirely overlooked the provisions of Rule 14 (d) and * * * they ignore the fact that `three consecutive shifts' were not in existence * * *."


Thus, it appears that Carrier did not "admit that a Mail and Baggage Sorter did work three consecutive shifts covering a 24 hour period," but on the contrary Carrier did adhere to the facts.


Certain distinctions that are obvious in the provisions of Sections (c) and (d) of Rule 14 have been ignored. These paragraphs provide:-


      "(c) Where three consecutive shifts are worked covering the 24 hour period, no shift will have a starting or ending time after 12 midnight and before 6:00 A. M.


      "(d) In no event may the starting time of any assignment be between the hours of 12:00 midnight and 5:00 A. M. except by agreement between the Management and General Chairman. Only such assignments as are necessary to meet the requirements of the service may be established with ending time between 12:00 midnight and 5:00 A. M."

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 Section (c) provides that no "shift" will have a starting or ending time between 12 midnight and 6:00 A. M. where "three consecutive shifts" are worked covering the 24 hour period, and it follows that-

      (1) "Three consecutive shifts" covering the 24 hour period can only be defined as a cycle of three eight-hour shifts, each immediately following the other, since "consecutive" is emphatic, stressing the immediacy of the succession and inasmuch as the 24 hour period accommodates a maximum of three consecutive eight-hour shifts.


      (2) The phrase "no shift" refers to one of the "three consecutive shifts (which) are worked covering the 24 hour period" because the latter quoted phrase is the sole condition precedent to the application of Section (c).


Section (d) recognizes the propriety of starting times of "assignments" any time from 5:00 A. M. to midnight and makes exception for starting "assignments" between 12 midnight and 5:00 A. M. only by agreement. This section also provides assignments may end after 12 midnight, limited to and dependent only upon the requirements of the service; and it follows that-

      (1) This section refers to "assignments" as distinguished from "shifts" referred to in Section (c), with restrictive period between 12 midnight and 5:00 A. M., as distinguished from restrictive period between 12 midnight and 6:00 A. M. as referred to in Section (c).


      (2) The first sentence of this Section specifically concerns itself only with "starting times."


      (3) The second sentence of this Section specifically concerns itself with "ending times."


      (4) There is no provision whatever in this Section which requires "agreement between the Management and General Chairman" with respect to "ending times", hence that requirement with respect to "starting times" is without application, either expressly or implicitly, to "ending times".


      (5) The term "such assignments" in the second sentence of this Section can only be construed in the sense that it is therein used with respect to the ending times of assignments which are necessary to end after midnight to meet requirements of the service.


Awards Nos. 9245 and 9246 erroneously interpret Rule 14, Section (c), as prohibiting the starting and ending of any assignment between 12 midnight and 6:00 A. M. at points where "three consecutive shifts" are worked and sustain these claims on that basic premise, relying upon awards rendered on entirely different rules on other properties for support. They misinterpret Section (d) by holding (in Award 9246) that the change in ending time provided for in its second sentence is subject to the same agreement condition between the parties which is made a requirement, in its first sentence, for starting an assignment in advance of 5:00 A. M.
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While Sections (c) and (d) convey the intent to eliminate, as much us practicable, the starting or ending of "shifts" on the one hand and "assignments" on the other during the early morning hours, it is readily apparent that each Section concerns different types of positions, viz., Section (c) controls the starting and ending of "shifts" in "three consecutive shifts" operations, while Section (d) less restrictively controls the starting and ending of "assignments" independent of "three consecutive shifts" operations.


Clearly, by reason of its own negotiated Agreement rules this Carrier has the contractual right to start any assignment not in "three consecutive shifts" operation at 5:00 A. M., and to end an assignment after midnight when such ending time is "necessary to meet requirements of the service", both without further agreement between the Management and General Chairman; hence these Awards Nos. 9245 and 9246 are without support in Agreement rules or awards of this Division.


    For these reasons, among others, we dissent.


                        /s/ J. F. Mullen


                        /s/ J. E. Kemp


                        /s/ R. A. Carroll


                        /s/ W. H. Castle


                        /s/ C. P. Dugan


LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT TO

AWARDS NOS. 9245, 9246 DOCKETS NOS. CL-8214, 8215


The Awards adopted by a majority of the Board in these disputes were proper and in accordance with prior precedents, the relevant facts and controlling Rule 14(c). See Awards 685, 1395, 1591, 3821, 6427.


It is a universal rule of contract construction that special rules prevail' over general rules, leaving the latter to operate in the field not covered by the former. Awards 4496, 6311 and 6757.


That Rule 14(c) is a special rule governing the assignment of starting or ending time "where three consecutive shifts are worked covering a 24 hour period", is clear. Consequently, Rule 14(c) prevails over general Rule 14(d) when the circumstances fall within the provisions of the former, as was the case here.


There is also another well established rule of contract interpretation that is controlling here, i.e., "that a valuable right cannot be abrogated by implication in one section of an agreement when such right was expressly and plainly granted in another section." Award 2490. Rule 14(c) prohibited the assignment of a starting or ending time "after 12 Midnight and before 6:00 A. M." where "three consecutive shifts are worked covering the 24 hour period."


Regardless, of what the Carrier Members' have to say to the contrary, the record in Docket CL-8214, Award 9245, shows that Carrier admitted that Mail and Baggage Sorters were assigned to three consecutive shifts,

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consisting of 6:00 A. Al. to 2:30 P. M., 2:30 P. M. to 11:00 P. M., 3:00 P. M. to 11 :30 P. M., 3 :30 P. M. to 12 Midnight and 12 Midnight to 8 :00 A. M., although it contended such shifts were not consecutive. There is bound to be an overlapping of hours where three consecutive shifts are worked and a lunch period is assigned. However, the Rule is concerned with "shifts" and not hours of service. In denying a similar contention in Award 3821, Referee Swain ruled:


    "* * * There is continuity in a series of three when there is no break between the first and second and none between the second and third. That was true of the three shifts here in question. The three shifts were continuous.


    We are not impressed with the argument of the Carrier that the shift starting at 2:00 A. M. was not the `first shift'. There were three shifts within the day and this one started six hours before the next one."


In Award 1819, Referee Yeager overruled Carrier's contention that the term "three consecutive shifts" were confined a particular group or class of work. The Referee ruled:


    "* * * It contends further substantially that the rule contemplates shifts, not necessarily of the same size, covering the 24-hour period, performing similar work. As to this contention, we need only say that the question has been previously decided adversely to the Carrier's position in other cases, notably in Award 1641, and we observe no compelling reason for a departure from the pronouncements there made."


Also, see Awards 1641, 1690 and 5923.

The record in both Dockets clearly showed that three consecutive shifts were worked covering the 24 hour period, consequently, Awards Nos. 9245 and 9246 correctly held that Rule 14(c) was violated by the assignments of starting and ending times "after 12 Midnight and before 6:00 A. M."


                        J. B. Haines

                        Labor Member