1. The Carrier violated the Agreement between the parties when, on February 20, 1957, it declared the second-shift towerman's position at "BT" West Brills Tower (New Jersey) abolished while a substantial part of the work of the position remained to be performed. And, concurrent with said abolishment, the Carrier rearranged the hours of service of the first-shift towerman's position at West Brills Tower to extend over a period of eleven (11) hours and ten (10) minutes in order to cover the work of the abolished position.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement between the parties to this dispute effective June 15, 1944, as amended. At page 26 of this Agreement are listed the positions at "West Drills BT Tower," as well as the position at Passaic Draw "PE" Tower. The listings read:
The rate of the positions have been subsequently increased as a result of the several National Wage increases collectively bargained, and in accordance with the Cost-of-Living Wage Adjustment of the Agreement of November 1, 1956.
On February 18, 1957, Chief Dispatcher J. E. Conover issued the following notice addressed to the "Signalmen" at BT West Drills. (Signalmen is synonymous with Towermen, or Levermen)
Effective February 20th tour duty 1st trick West Drills will be 6:30 A. M. - 11:30 A. M. -12:30 P. M. - 5:40 P. M."
On April 15, 1957, General Chairman Gerke of the Organization, in his letter of that date, directed to Superintendent J. J. Galuppo the following claim:
"Prior to February 20, 1957, `BT' West Drills Tower on Central Division was a two trick with tours assigned as follows:
The Carrier affirmatively states that all data contained herein has been presented to the Employes representatives.
OPINION OF BOARD: Early in 1957 Carrier determined that, due to changes in traffic operations, services of towermen at "BT" West Brills Tower and "PB" Passaic Draw would no longer be required after 5:40 P. M. (These towers are located about one mile apart.) Theretofore each tower sustained a two-trick operation, with tours of 6:20 A. M. - 2:20 P. M. and 2:20 P. M. - 10:20 P. M. Effective February 20, 1057 Carrier abolished the two second-shift positions. At the same time it lengthened the hours of the first shift men, placing them on this schedule:
Under the new schedule the incumbent towermen received tyro hours and ten minutes overtime pay each day (their tours of duty were extended by three hours, ten minutes).
At the outset, Carrier affirms that an identical dispute on this property was disposed of by Award 10979, which decision should make further consideration of the present case unnecessary. A careful reading of that Award, however, reveals that the Organization's claims (identified in that opinion as Parts 1, 3 and 4) regarding abolishment of two towerman positions and requests for restoration of such positions, with back pay for incumbents (as well as other affected employes) was denied for lack of proof. "There is no evidence as to the time of second trick", the Board noted. Consequently, since the merits of the Organization's contractual claims were not passed upon, we have no warrant to accept Award 10979 as precedent here.
While Part 2 of the claim in Award 10979 was sustained, the facts on which the claim was based were somewhat different from those in the present case. There, after abolishing the second trick position at "NA" Tower, Carrier rescheduled the first trick position to cover a spread of 10 hours, 40 minutes, of which one hour was an unpaid lunch period and one hour was paid-for but not worked. The incumbent was actually on duty 8 hours and 40 minutes; however, he received I hour, 40 minutes overtime pay. The Board held that this assignment was a violation of Article 25(e):
Since, in the matter at hand, the first trick towerman was not required to remain off duty during the course of his tour, Award 10979, again, is not useful as a precedent. 11594-21 115
ably less than the three hours relied upon by the Board in its sustaining Award 5235. But it is more than the one hour in Awards 9240, 6944 and 5719, or the h/z hours in Award 4351. (The five hours overtime schedule in Award 10847 was for a limited period-vacation relief-and is not really relevant to our present consideration.) While Article 20 specifically provides for shifts of less than eight hours, that provision may not be reasonably interpreted to mean that any amount of time, regardless of its magnitude, shall require assignment of a full-shift employe. In the two instances here, and without trying to draw a firm line, it is our conclusion that the two hours and ten minutes' work was not sufficient to require retention of a regular position. Management, in other words, did not violate the Agreement by abolishing the two towermen positions in 1957.
What, then, of the claim that rearranging the hours of the first trick towermen constituted an Agreement violation? Standing by itself, and in its present form, Article 20 does not explicitly proscribe establishment of positions requiring more than eight hours' work. Article 20(a) says
While Management is prohibited, under this clause, from granting less than eight hours' pay for, let us say, a six or seven hour position, there is no express prohibition against fixing a schedule of more than eight hours (and paying appropriate rates). Whether such prohibition is implied we cannot say on the basis of information available in this docket. It may be that a study of the parties' discussions leading to adoption of Article 20 would substantiate the conclusion that they intended to limit all regular assignments to eight hours. (That, interestingly, was the position taken by Management in Award 4351 and opposed by the Clerks' Organization.) But that history is not available in the present case.
Furthermore, there is at least some indication in the Agreement that establishment of longer schedules was contemplated by the parties. Article 21 (a)-revised in 1946-refers, in one section, to situations
True, this is a rest day clause, but the specific reference to a regular position of more than eight hours certainly raises serious doubts concerning the validity of the Organization's claim that no such position can be rightfully established.
Moreover, we may ask whether it is not likely that the parties, had they intended to bar over-eight-hour positions, would have done so explicitly rather than by inference. Cannot Article 20 be reasonably interpreted to mean simply that Management must give eight hours' pay even if a man works less than eight hours- i.e. its principal purpose is to assure regularly assigned employes of a day's pay?
Custom and practice might be extremely useful in fathoming intent in a case like this. Unfortunately, we are foreclosed from considering the question of practice here since Management's evidence on this point was not offered on the property or even in its Ex Parte submission. As for precedent, the only directly related case is Award 5235. But it is not completely clear that the Board intended that decision to stand for the proposition that no regular as- 11594-23 117
signment of more than eight hours would be tolerated. Based on a daily threehour overtime stint, the Board found that there
(Incidentally, Award 6675, which, the Carrier asserts, expressly rejected Award 5235, concerned the dividing up of three hours' third trick work among a number of employes on other shifts. There ivas no regularly scheduled shift of more than eight hours as in the case at hand.)
It is our finding, in sum, that (1) abolishment of the two towermen posi tions did not violate the Agreement, (2) there is insufficient evidence, in this docket, to determine conclusively whether the contract forbids any regular assignment of more than eight hours, as the Organization asserts. (There is no claim, it may be noted, that the excess hours constituted a hardship on the first shift men.)
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 Carrier did not violate the Agreement when, on February 20, 1957, it abolished the second-shift towermen positions at "BT" West Brills Tower and "PB" Passaic Draw; and
There is insufficient evidence in this docket to determine the question whether, under the Agreement, the Carrier is prohibited from establishing a regular assignment of more than eight hours.