ATLANTA & WEST POINT RAILROAD--THE WESTERN
RAILWAY OF ALABA31A AND GEORGIA RAILROAD
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen of America on the Atlanta and West Point Railroad Company-The Western Railway of Alabama and Georgia Railroad, in behalf of:
EMPLOYES' STATEMENT OF FACTS: Claimant T. C. Wallace is regularly assigned as Signalman at this Carrier's Signal Repair Shop, Atlanta, Georgia, with common headquarters at the Repair Shop. Bulletins advertising and assigning employes to positions at the Signal Repair Shop are signed by R. C. Neville, Supervisor of Telephone, Telegraph, and Signals, W.R. of A: A. & W.P.R.R., and by C. S. Goggins, Supervisor of Telephone, Telegraph, and Signals, Georgia Railroad. The claimant therefore receives instructions from both Supervisors and performs work for each of the railroads. We understand that the claimant is on the payroll of the A. & W.P.R.R. and when he is used on the properties of the W.R. of A. or Georgia Railroad, the A. & W.P.R.R. bills the railroad where he is used for that part of the expenses. We also understand that the General Office Building, 4 Hunter Street, Atlanta, Georgia, is owned by the Georgia Railroad. We understand that the Signal Relay Shop is under the direction of Supervisor Neville, but Supervisor Goggins also gives instructions to the claimant.
Other than the front cover (listing names of railroads) the current Signalmen's Agreements on the W.R. of A: A. & W.P.R.R. and Georgia Railroad are worded identically, even to the effective date, which is September 1, 1946.
On the morning of May 11, 1955, Supervisor R. C. Neville instructed the claimant to commence cleaning and oiling all electric fans on the third floor of the General Office Building, 4 Hunter Street, Atlanta, Georgia, and to make any and all repairs of the electric fans at the Signal Repair Shop. Heretofore, all electrical work in the General Office Building at 4 Hunter Street, Atlanta, Georgia, had been considered as telephone and telegraph work to be performed
Regardless of the language of this rule, it is carrier's contention that it was agreed that the practice of performing electrical work in General Office Building would continue in the same manner as it had before agreement was negotiated. Carrier has shown conclusively that such practice did continue without interruption and without protest for a period of nine years. By such a period of time this has become a standard practice, acquiesced in by the employes and the parties have placed their own interpretation on same. Such being so, it is not the province of the Division to reinterpret the rules.
OPINION OF BOARD: Claimant Wallace is a Signalman. It is agreed that he performed the following amounts and kinds of work:
Each such assignment is alleged to be in violation of Rule 59 (a) of the Agreement which provides:
The Carrier's principle argument is that prior to recognition of the Organization in 1946 such assignments were made regularly to Signalmen. Carrier also contends that when the first agreement was entered into by it and the Organization there was agreement to preserve and continue such practices.
The record shows that prior to 1946 such assignments were made. There is some evidence that assignments similar to those here were made after the first Agreement went into effect. However, there is no probative evidence that 9545-14 98
the Organization agreed to preserve such practices when the Agreement was made.
The clear language of the contract is to the contrary: "Signalmen will perform only signal work". Nothing could be more clear. Under general principles of contract language and the precedents of this Board evidence of an understanding not reduced to writing and made part of the Agreement cannot be used to vary the unambiguous provisions of the Agreement.
There is no evidence of any such understanding; there are only hearsay assertions by non-negotiators that there was such an understanding. Even these statements, which postdate the notice of intention to submit the claim, are untimely and inadmissible.
It is also well settled that practice cannot justify non-observance of an Agreement nor modify its terms.
Quite clearly, the Agreement was violated by the two sets of assignments to electrical work at the General Office Building.
Carrier implies that in order for the Claimant to prevail as to item 1, above, the telephone repair work, it is incumbent upon him to show that "an employs assigned to the class of work [was] not available" and that he failed to make such a showing.
The first sentence of Rule 59 (e) sustains the claim prima facie. The language of the third sentence which the Carrier refers to is an exception to the general rule for the benefit of the Carrier. Once the Claimant has established the essential elements of his case, it is up to the Carrier to negate the showing by proof that its action came within the exception it asserts is appliable. This it has not done.
The Carrier contends that no monetary award should be made because the Agreement provides for none. The Agreement contains no specific provision for remedies to be applied in the event of breach.
That there was a breach is clear. It was a substantial one involving an important term of the Agreement. Carrier obtained hours of work from a Signalman to which it was not entitled under the terms to which it had agreed
We believe that there is ample precedent for a money award in vindication of the Agreement even in the absence of a provision for damages. In Award 6063 (Wenke) it was said:
Award 6814 (Robertson) involved a violation of a provision giving employes a twenty minute eating period. The eating period was not observed by the Carrier. The Board said: "The mere fact that the rule carries no penalty provision is no bar to sustaining the claim as made" (i.e. for twenty minutes pay for each eating period not observed).
We therefore sustain the Claim as made and detailed earlier in this Opinion.
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 Employe involved in this dispute are respectively Carrier and Employe 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
Award No. 9545 is in error because the Majority therein grants additional compensation not provided for in the governing Agreement, as a penalty payment to a Signalman for performing certain duties other than signal work within the hours of his regular assignment in violation of that part of Rule 59(e) providing, "Signalmen will perform only signal work."
This Board has many times held that Carriers are responsible to their employes only to the extent that they have contracted, e.g., Award 6001Daugherty; that it must interpret the Agreement as written and may not add to or subtract therefrom, e.g., Award 6757-Parker; and that it is without authority to assess fines or penalties against Carriers for Agreement violations other than such as have been negotiated therefor, e.g., Awards 9395Stone, 8674, 8673-Vokoun, 7309-Rader, 5186-Boyd, and 3651-Miller, Second Division Award 1638-Carter, and First Division Award 15866-0'Malley.
Award 9545 involves circumstances entirely dissimilar to those present in Award 6063 (Wenke), relied upon by the Majority, wherein the claim was not for work performed, as here, but for work which Claimant was deprived of; hence Award 6063 is without any application to the instant dispute. 9545--16 100