The Carrier relied upon Third Division Award 8224 in the handling of this case on the property. That award involved a dispute between the Pennsylvania Railroad and the Clerks' Organization, over the regulation of extra lists for mail and baggage handlers at the Harrisburg, Pennsylvania passenger station. The basic schedule agreement called for another agreement between the Management and Division Chairman on the number of extra employes to be used. During the Christmas rush of mail in 1953, the Division Chairman of the Organization refused to agree to an increase in the number of extra employes. A number of outsiders were hired to do this work as temporary employes during the rush period, and claims on behalf of the regular employes were progressed to the Third Division. The Board held -
The same principles are true here. The Carrier's unilateral action in consolidating the LaCrosse Division position with the Savanna Line was caused by the Organization's refusal to comply with the agreement of December 26, 1956 (Carrier's Exhibit No. 2), when the facts clearly justified the consolidation of positions. The Employes cannot successfully complain in these circumstances.
In summary, the Carrier asserts that its action effective June 21, 1958, combining these positions on Saturdays and Sundays, cannot be construed as an agreement violation. Rule 20 (f) is not an absolute prohibition against combining positions for relief purposes. This rule contemplates that agreements will be made in certain circumstances, permitting the type of consolidation involved in this docket. The agreement of December 26, 1956 (Carrier's Exhibit No. 2) contemplated that an agreement would be made between the parties on the LaCrosse Division position, when the work was insufficient to warrant continuing working it seven days a week. With the facts as they now exist, and with the present amount of work on Saturdays and Sundays, this combination of positions was not made in violation of contract.
All data herein and herewith submitted have been previously submitted to the Employes.
OPINION OF BOARD: In December 1956, the Carrier and the Organization consummated the following letter Agreement:
Rule 18 (c) referred to above was contained in the Agreement effective March 1, 1943. The letter Agreement - which was superseded by the Agreement effective May 1, 1958 - contains Rule 20 (f) which is identical with Rule 18 (c).
On June 21, 1958, the first trick LaCrosse Division Train Dispatcher's position was made a five day job, and one dispatcher was assigned to handle the combined territory from Savanna, Illinois to Newport, Minnesota, on Saturdays and Sundays.
The first shift LaCrosse Dispatcher's position had been on a seven days a week basis. On May 2, 1958, Mr. J. E. Wolfe, Carrier's Vice PresidentPersonnel, in a letter to the Organization's General Chairman, Mr. A. J. Boyle, provided the latter with work survey data to show the decline in Saturday and Sunday traffic and recommended that the first trick dispatcher's job be discontinued as a seven days week operation. The Carrier stated in part in its letter that "To fulfill our commitments, I am enclosing herewith several copies of a proposed agreement under Rule 20 (f) of the schedule effective May 1, 1958. Will you please have the Office Chairman at Aurora execute this agreement promptly so that it may become effective on May 6, 1958. Superintendent Stoll at Aurora will also please sign it, as well as yourself as General Chairman."
The General Chairman on May 12, 1958, returned unsigned the Memorandum of Understanding " . . in order that we may comply with that part of the Agreement reading:
On May 28, 1958, the parties met but failed to reach an agreement. On June 9, 1958, Mr. Wolfe sent Mr. Boyle additional work survey data and informed him that the first trick LaCrosse dispatcher's job would be reduced to five days a week. A pertinent part of Mr. Wolfe's letter reads as follows:
It cannot be doubted or successfully refuted that the controlling provision in this case is Rule 20 (f) of the May 1, 1958 Agreement. The latter Agreement, of course, controls and supersedes the December 1956 Letter Agreement.
The record indicates that the Carrier's "Memorandum of Understanding" was made under the provision of Rule 20 (f) and represented nothing more than a proposed agreement. Therefore, the Carrier may not now successfully contend that the Letter Agreement of December, 1956, is controlling.
The above Rule unmistakably provides that the combining or blanking of relief or extra dispatchers' positions can only be done by the agreement of the parties. It is also to be noted that the Letter Agreement of December 1956, did not impose on either or both parties the obligation to agree . . . that Agreement simply stated that ". . . the parties will meet and agree
The record reveals that the Carrier took unilateral action when it combined the Saturday and Sunday duties of an established dispatcher's position with the duties of another dispatcher's position. Such action, constituted a violation of Rule 20 (f) of the controlling Agreement. Accordingly, we hold that the Carrier violated the Agreement.
The Claimant, however, is entitled only to straight time pay for the dates specified in the Statement of Claim.
FINDINGS: The Third Division of the Adjustment Board, 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
Following quotation of the letter Agreement, dated December 26, 1956, in the Opinion of Board, the majority stated:-
Actually, the letter Agreement supplemented the primary rules Agreement. Rules 20 (f) was not contained in the letter Agreement as indicated; on the contrary, it was contained in the revised primary rules Agreement effective May 1, 1958.
The special letter Agreement of December 26, 1956 stipulated conditions in respect of the one particular position involved here to facilitate the purposes of Rule 18 (c), now Rule 20 (f), in treating with that position. It provided that "* * * if there is not sufficient work for the LaCrosse Division dispatcher position, * * * to warrant continuing it on a seven-day basis," then the parties would agree on combining positions as contemplated by the rule. This shows that combining was to be determined by a fact situation, not the whim of the parties. It did not conflict with the Agreement of May 1, 1958 and inasmuch as the latter Agreement expressly superseded only the previous Agreements, understandings, interpretations and rulings in conflict therewith, the letter Agreement was not superseded.
Award 10190, therefore, is in error, first, because the finding that the letter Agreement of December 26, 1956 was superseded lacks support and, second, because the majority went outside the record to make such finding, as the record shows no such question handled on the property nor presented to the Board in the submissions of the parties.
is erroneous in that it assumes that the parties performed a useless act in making the Agreement. Such finding conflicts with our oft repeated finding that the Agreement of the parties is sacrosanct; that the meaning of a written Agreement must be gathered from the language used and that effect should be given to the entire language.
For the foregoing reasons, among others, Award 10190 is grossly wrong and we dissent.
LABOR MEMBER'S ANSWER
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 10190-DOCKET TD 10817
"Actually, the letter agreement supplemented the primary rules Agreement. Rule 20 (f) was not contained in the letter agreement as indicated; on the contrary, it was contained in the revised primary rules Agreement effective May 1, 1958."
The Letter Agreement was not supplemental to either Rule 18 (e) of the Agreement effective March 1, 1943, nor Rule 20 (f) of the Agreement effective May 1, 1958. It merely set forth that under certain conditions as outlined in the record, an agreement would be made in conformity with Rule 18 (c).
"This Agreement shall become effective May 1, 1958, and supersedes previous agreements, understandings, interpretations and rulings in conflict therewith * * *." (Emphasis ours.)
It is clear from the record that the Letter Agreement dated December 26, 1956 has no application, since the Agreement effective May 1, 1958, supra, superseded all other Agreements.
The Carrier Members are taking a position contrary to the position taken in the past on the question of whether or not the entire Agreement may be considered, when the following statement in their dissent is analyzed.
The implication here is that the Employes did not advance any argument to the effect that Rule 35 of the May 1, 1958 Agreement was controlling.
In Award 7850 (Referee Lynch) we sustained the claim of the Employes and in the dissent to this Award the Carrier Members stated:
We do not agree wholeheartedly with this doctrine, simply because this principle, carried to the extreme, would entirely emasculate the intent and purposes as well as the clear and definite language of the Railway Labor Act, as amended, by relieving the contesting parties of their obligations under the Act, as well as exceeding the appellant jurisdiction of the Board deciding disputes, instead of creating them. We hold, however, that only those rules and/or Agreements pertinent to the question placed in issue by the parties on the property are properly before the Board for consideration. (Awards 3502 - 5016 - 5079.)
It is evident that it is the dissenters' desire to apply the above doctrine when it is to their benefit, but to ignore it when it is to the benefit of the employes. In the last paragraph of their dissent they state:
The fallacy of the dissenters' argument is that even if there was a socalled Letter Agreement in effect-which in the light of Rule 35 there was not -Rule 20(f) prohibits the combining of positions for rest day purposes except by Agreement. (Awards 54-2454-5069).
The record, the rules of the Agreement, as well as the Award cited clearly show that Award 10190 properly disposed of the involved issue in sustaining the Employes' claim.