NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL &
PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5476 ) that:
EMPLOYES' STATEMENT OF FACTS: This dispute is companion to another dispute involving the abolishment of positions in the Tranaload Freight Forwarding Department, Seniority District No. 29, St. Paul, Minnesota and' the use of furloughed employes with regularity to perform the transload freight forwarding work previously performed on those positions, which was submitted to the Board under date of October 31, 1963, as yet undocketed, and identified by the Employes as case GL-5453.
Employes E. Senske and F. Morrow are furloughed employes in Seniority District No. 29 at St. Paul, Minnesota.
On November 9, 1962 employes Senski and Morrow were called to perform, transloader work at the freight house and performed such work until approximately 12:30 P. M. They were then removed from the assignments for which called and sent to the Union Depot, which is in close proximity to the freight house, to perform mail sorter work and performed mail sorter work from 12:30 P. M.to4:30P.M.
rules, therefore, there is absolutely no basis for the instant claim and we respectfully request that it be denied.
The Carrier would point out that the work of handling transloader freight at St. Paul and the work of handling mail at St. Paul is all within the same class, i.e., non-clerical, and is all within the same seniority district. What the employes are attempting to establish through the instant claim, therefore, is that the Carrier may not use its employes to perform the same class of work within the same seniority district to the extent of 8 hours per day, however, the Carrier submits that there is no schedule rule or agreement which in any way supports the employes position in this regard, but to the contrary, utilization of employes to the extent described above is entirely proper and in accordance with schedule rules.
The Carrier submits that it is readily apparent that by the instant claims the employes are attempting to secure through the medium of a Board Award in the instant case something which they do not now have under the rules and in this regard we would point out that it has been conclusively held by the Third Division, as well as by the other three Divisions and the various Special Boards of Adjustment, that your Board is not empowered to write new rules or to write new provisions into existing rules.
OPINION OF BOARD: This claim turns on whether Section 1 and/or 5 of the Memorandum of Agreement of September 14, 1956 resulting from the transfer of transload freight forward business from Minneapolis in Seniority District No. 26 to St. Paul in Seniority District No. 29, forbids the handling of mail by employes assigned to the transloader work at St. Paul. Sections 1 and 5 read:
"Section 1. It is agreed that resulting from the transfer of transload freight forwarding business from Minneapolis, Minnesota to St. Paul, Minnesota, effective on or about September 15, 1956, there will be established at St. Paul Minnesota effective that date, the following `5-day' positions assigned Monday through Friday:
"The above positions will be bulletined to all employes in Seniority District No. 26 and employes in Seniority District No. 29. Copies of the bulletins will be mailed to all furloughed employes in Seniority District No. 26. Preference will be given to applications from employes in Seniority District No. 26. Employes from Seniority District 26 awarded these positions will transfer with their seniority from Seniority District No. 26 to Seniority District No. 29.
"In the event an employe at Minneapolis is displaced through the exercise of seniority, by reason of abolishment of positions involved in the handling of trandoad freight at Minneapolis and his displacement: does not take place until after the assignments are made at St. Paul in connection with the three positions listed above, that employe displaced at Minneapolis may, if he possesses sufficient fitness and ability, exercise his seniority to displace a junior Minneapolis employe or a St. Paul employe assigned to one of the three positions listed above. However, such exercise of seniority will not be permitted after October 15, 1956." 13975-8 174
Employes argue that Section 1 the 1956 Agreement intends to confine employes assigned to the positions established under that Section to the performance of the transload work. Their argument about the words in Section 5 "assigned with a 4:00 am starting time;" while not sharply defined in the record, appears to be that the reference to starting time was a way of defining the positions at the time the Agreement was written, but applied to the positions of those who were assigned to the transloader work even if the starting time of the positions was changed. Claimants in this case started work at 8 am.
Carrier argues that there is no restriction in the basic Agreement or in the 1956 Agreement on the assignment of the employes involved to mail handling in the same seniority district. Carrier argues that Section 5 of the 1956 Agreement is by its terms applicable only to certain employes who have a 4:00 am starting time.
Employes fail to support with an evidence their argument that Section 1 of the 1956 Agreement intended to restrict the assignment of work to the positions it established. Considered as favorably as possible from the point of view of Employes' argument, Section 5 can at most be considered ambiguous; it was incumbent on Employes to prove by sound evidence in the record that the meaning they ascribe to the Section was the one intended by the parties. No such proof is in the record. We find no evidence in the record that Carrier violated the Agreement as claimed and 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