THIRD DIVISION
(Supplemental)
CHICAGO, ROCK ISLAND AND PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The work of unloading anal handling grain doors at Shawnee, Oklahoma has been assigned to and performed by the Section forces at that location for more than thirty years.
Nonetheless, on July 25, 1958, the Carrier discontinued the practice of using its Section forces to perform the above referred to work and thereafter assigned such work to outside forces.
Consequently, the claim as set forth herein was presented and progressed in the usual and customary manner and was declined at all stages of the appeals procedure.
The Agreement in effect between the two parties to this dispute dated May 1, 1938, together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts.
Many classes of employes handle grain doors on this property and it is not a monopoly of any Craft, and, as shown above, the petitioning Organization concedes their Agreement does not cover such work.
For the Board to sustain the instant Claim, would be writing into an Agreement something not now there, and an interpretation of the existing Agreement, based on the facts here, must decline the Employes' Claim.
We submit, on basis of the facts in this case, and for the reason advanced above, there was no violation of the agreement, and we respectfully request denial of the Claim.
Where employes of one craft for thirty years have exclusively performed the work at one facility of a Carrier and the employes job description in the effective Agreement does not specifically include this work does the Carrier violate the Agreement in assigning this work to outside forces?
The work of unloading and handling grain doors at Shawnee, Oklahoma bad been handled by Maintenance of Way forces at this facility for over thirty years. There is nothing in the record to show other Carrier forces had handled this work at this location. In 1958 the Carrier assigned this work to outside forces. The Organization asserted this action to be a violation of the Agreement.
The Carrier replied that the definition containing the scope of the employes job description did not include this wor'_c. This part of the Agreement reads as follows:
It further established that the Organization, in writing, had conceded that the Agreement did not spell out the work in question as being specifically included in its terms.
However a practice once established continues in force until specifically abrogated by the parties, and where a contract is negotiated and existing practices are not rescinded or altered by its terms, such practices are enforceable to the same extent as the provisions of the contract itself, as though written therein.
The meaning of a contract is arrived at by ascertaining the action of the parties in implementing it.
We have considered the question that the claim was not handed in the usual manner on the property and find it to be without merit since the monetary nature of the claim was raised on the property.
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
The award completely disregards our recent Award 10860 (Kramer), same parties, same Agreement and similar issues, in which the Board ruled:
Under our consistent decisions, the precedent established in Award 10860 (Kramer) is controlling in subsequent cases involving the same parties, same Agreement and similar issues, for there is no evidence that it is palpably wrong. See Awards 12335 (Engelstein), 11759 (Dorsey), 11584 (Rose), 11160 (Moore), 11035 (Hall), 10917 (Boyd), 10086 (Dugan).
Although Award 10860, as well as a large number of Awards which support the sound reasoning thereof, was cited to the authors of Award 12390 during the handling of this case in panel, they have ignored it completely and have conceded their inability to distinguish it or to demonstrate any error in it by their failure to mention it. Such procedure can only bring discredit upon this Board. Our obligation under the law is to achieve consistency in our decisions, not create chaos.
Here, as the sole factual basis for the decision, we have the conclusion that section forces at Shawnee, Oklahoma, have "exclusively performed the work" of unloading grain doors at that location.
We do not need to go further than the Labor Member's own memorandum for a frank admission that the employes' allegations of exclusive performance of the work at this location are denied by Carrier and the employes failed to submit any evidence to support the disputed allegations. At page 4 of his memorandum, the Labor Member states:
The employes' initial submission (page 6) reproduces the letter of Carrier's officer on the property which advised the General Chairman in connection with this claim that:
Since Carrier denied the employes' allegations of exclusive performance, it was incumbent upon the employes to come forth with competent evidence proving that they had performed the claimed work exclusively on Carrier's entire system. The Employes had the burden of proving all essential elements of their claim. In the absence of proof on the essential question of practice, the claim obviously should have been denied.
Throughout the entire processing of this claim on the property, the employes did not refer to any provision of any Agreement, and in their submission to this Board they refer only to one rule which is of general application to the entire system. No rule having reference to any local situation is cited or involved. There is a mere claim to an exclusive right to perform specific work. If the claim is to be sustained, it must be on the basis of the rules of the controlling Agreement having general and system-wide application. The claim is that the employes have an exclusive right to perform specific work which is admittedly not mentioned in any way in their Agreement. In these circumstances, our decisions are uniform and consistent in holding that system-wide practice is controlling, and no exclusive right to work at a single location can be established by mere proof that such work has been assigned to the employes exclusively at that location for a long period of time, where Carrier alleges that such work has been assigned to others at other points on the system.
The correct rule is stated as follows in Award 11526 (Dolnick) which involved contracting out work:
In Award 12346 (Stack), this Referee recognized the universally accepted rule that:
This "most basic and fundamental" principle, the prerogative of management to assign the work, would soon be reduced to mere sham if those charged with the duty to interpret labor Agreements could lawfully pervert voluntary work assignments at individual facilities into contracts depriving management of its right to change those assignments in order to meet changing conditions. Nothing short of an established practice of exclusive, systemwide assignment of work to a single class of employes reasonably justifies the inference that by merely adopting a general Scope Rule listing that class of employes but not listing the work, the parties intend to give such employes any exclusive rights to such work. The Awards we have cited above are typical of our many consistent decisions on this point.
Flying directly in the face of these clear principles, as the authors of this award have done, is not only inexcusable, but it is also an unfortunate disservice to both labor and management. The welfare of both groups will be served best by achieving consistency and accuracy in our decisions.
. . . a practice once established continues in force until specifically abrogated by the parties, and where a contract is negotiated and existing practices are not rescinded or altered by its terms, such practices are enforceable to the same extent as the provisions of the contract itself, as though written therein." 12390-is 571
While the Referee has not noted the fact, this language is copied verbatim from a paragraph in Award 10122 (Corey) which was quoted in the Labor Member's memorandum. When this statement of Referee Carey is read in context it takes on an entirely different meaning, and is certainly not subject to the inference that a mere practice becomes binding upon parties when it is unrelated to some vague rule of the parties' Agreement. Referee Carey had before him a claim in which the employes contended that the parties had entered into a binding oral agreement, and they cited practice to prove the existence of the oral agreement. In the paragraph immediately preceding that containing the above-quoted words, Referee Carey stated:
THE AWARD CONTRAVENES SPECIFIC RULES
OF THE AGREEMENT.
Carrier states that the Scope Rule covers only work of maintenance and construction character. Material portions of the rule read:
Since the Scope Rule limits its coverage to maintenance and construction work in the Maintenance of Way Department, defines section men in terms of being supervised by foremen, and in turn defines foremen in terms of employes reporting to officers having charge of the construction or maintenance of railroad track, the implication that section laborers and foremen are to have no rights to work that is not related to the construction and maintenance of railroad track is unavoidable. Expressio unius est exclusio alterius. This is the interpretation which the Board correctly placed on these rules in Award 10860 (Kramer), see the first paragraph quoted under I, above.
Thus the basic conclusion in the Award not only disregards controlling precedent but it flagrantly violates the most basic rules for the interpretation of Agreements. It is elementary that the meaning of an Agreement " . . cannot be stretched by the acts of the parties beyond what the language will bear.. .:' 17 Corpus Juris Secundum, Contracts, Sec. 325. 12390-20 5 72
The powers of the National Railroad Adjustment Board are limited. We cannot make or revise Agreements, we can only interpret them, and in doing this we are required to apply the ordinary rules of contract law. Award 10585 (Russell).
The Award is also palpably wrong in holding that the claim for money was handled in the usual manner on the property. This claim was initially submitted to Carrier's highest officer after a mere protest had been handled with lower officers, and the highest officer did not concede that it was properly before him; he recognized only the protest which had been handled with the designated lower officers. Award 8205 (Wolff), among others.