BROTHERHOOD OF RAILROAD SIGNALMEN
OF AMERICA
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen of America on the Chicago and Illinois Midland Railway Company:
EMPLOYES' STATEMENT OF FACTS: Since the effective date of the current agreement, employes of this Carrier's Signal and Communications Departments covered by the Signalmen's Agreement have with no exceptions, performed all of the signal, communication, telegraph, telephone, radio, electrical, and other types of work outside of the buildings in the shop areas at Taylorville and Springfield, Illinois, as well as all wayside work of this nature throughout this Carrier's property. In addition to the above-cited work outside of the buildings in the shop areas, employes covered by the Signalmen's Agreement also performed a considerable amount of the electrical work inside of the buildings in the shop areas, as well as all of the communication, telegraph, telephone, and signal work inside as well as outside of the buildings in the shop areas.
The Carrier had received protests from its Shop Electricians at Taylorville, Illinois, account of signal employes performing certain electrical work
3. The penalty of 6 hours each for two days to Signal Foreman Ball and Leading Signal-Inspector Fernandes, at their respective overtime rates of pay, is not provided by any rule of the signalmen's agreement. Ball and Fernandes worked on each of the dates in this claim and have not been deprived of working their assignments; neither of them suffered a loss. Your Board has on numerous occasions found (when a violation has been determined) that the pro-rata rate is all that is warranted where no work is performed. None was performed here by the claimants and consequently a punitive penalty cannot be sustained under any circumstances. See Awards of the Third Division, NRAB as follows: 6160, 6664, 6702, 7207, 7242, 7255, 7288, 7309, 7316, 7388, 7816, 7858 and 7915.
4. The employes represented by the agreement with the Shop Crafts electricians (INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS) are interested parties to this dispute and in accordance with Section 3, First (j) of the Railway Labor Act, should be notified by the Third Division, NRAB, and afforded an opportunity to protect their interests. See Awards 6482, 6483, 6484, 6485, 6680, 6681, 6682, 6683, 6696, 7975, 8023, 8050 and 8105.
In view of the failure of the representatives of the two crafts of employes here involved to mutually agree on the jurisdiction of work both before and after it was done, the question now before your Division is whether the installation of wiring and lighting fixtures in the diesel shed in the newly established 'Taylorville Shops area belongs to the employes represented by the BRSA or the IBEW. Because the carrier could not delay completion of the work until the representatives of the two groups of employes could agree upon who should perform it, the carrier interpreted the classification rules of the respective agreements and the tri-party understanding of February 3, 1956 as awarding the work to the Shop Crafts Electricians.
The carrier therfore respectfully requests the other interested party to this dispute, the IBEW, be given notice in accordance with RLA Section 3, First (j) and that your Board deny the claim in its entirety.
All data herein submitted has been presented to the duly authorized representative of the employes and are made a part of the particular question in dispute.
OPINION OF BOARD: At all times material herein, Petitioner and International Brotherhood of Electrical Workers, hereafter referred to as IBEW, each had a collective bargaining agreement with Carrier.
Petitioner, IBEW and Carrier entered into the following "Memorandum of Understanding," herein called the Memorandum:
It stationed one diesel locomotive on a track adjacent to its Taylorville freight station where it was tied up for servicing and maintenance.
In 1957, Carrier constructed a shed over the track to shelter the diesel while it was being serviced, repaired or when not in use. After discussion with Petitioner and IBEW, Carrier assigned the electrical installation work inside the shed to IBEW. Each of the Organizations had laid claim to the work on the basis of their respective collective bargaining agreement and the Memorandum. IBEW cited paragraph 1(b) of the Memorandum as being the controlling provision; Petitioner cited paragraph 2(c).
The question to be resolved is whether the shed involved is in the "Taylorville Shops area" within the meaning of that descriptive phrase as employed in the Memorandum. If the answer to the question is found to be affirmative Petitioner concedes that the work "clearly belongs to the Electricians under Part 1(b) of the Memorandum." But, Petitioner contends that the shed "is not included within the area the parties had in mind when they adopted the phrase 'Taylorville Shops area;"' therefore, the work "belongs to Claimants by virtue of Part 2(c) of the Memorandum."
Petitioner argues that it was its understanding that the phrase was limited to the shops area as it existed as of the date of execution of the Memorandum; and, it was not contemplated that the phrase would encompass later erected shop buildings in a different location at Taylorville. But, this argument finds no support in the Memorandum. Had the parties to the Memorandum intended such a circumscribed application of the phrase we must assume that they would have expressed it by words of limitation in the Memorandum. We find none. As we have so often said we cannot supply, by decision, that which the parties have failed to include in a written agreement.
We have read the Memorandum many times and are satisfied that the sense of paragraph 1(b) is that it includes all shop buildings at Taylorville. We will deny the 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
That the Carrier did not violate the Agreement or Memorandum of Understanding.
This Award destroys rather than interprets a portion of the Memorandum of Understanding involved; therefore, it is in error.
Admittedly, the Signalmen are excluded from work inside buildings within the "Taylorville Shops area", however, the majority has broadened the language so as to include "all Shop buildings at Taylorville" thereby setting the stage for complete frustration of the Memorandum of Understanding so far as Taylorville is concerned by simply calling buildings in the vicinity of Taylorville, irrespective of location, Shop buildings.
Applying the principle used by the majority it is also reasonable to assume that if the parties to the Memorandum of Understanding intended that Signalmen are excluded from work within all Shop buildings at Taylorville, they would have so stated.
I certainly have no quarrel with the principles stated in Award 6856 cited by the majority, however, I emphatically disagree with the manner in which the majority used those principles in this case.
The majority committed further error when it refused to consider what the Employes had to say leading up to the negotiations of the Memorandum of Understanding. Apparently, Carrier's side of the story was not given similar treatment.
The function of the Board is to interpret agreements as they are written. In this case the majority has seen fit to rewrite an agreement; therefore, I dissent.