Award No. 14290
Docket No. CL-15281
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Nicholas H. Zurnas, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN PACIFIC COMPANY (Pacific Lines)
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GIr5643) that:
(a) The Southern Pacific Company violated the Agreement between the parties at Dunsmuir, California, when on September 24,
1961 it failed to call Mr. E. L. Test to a vacancy on Clerk-Baggageman Position No. 9 but, instead, used Mr. D. E. Rush thereon contrary to agreed-to application of the Agreement; and,
(b) The Southern Pacific Company shall now be required to
allow Mr. E. L. Test eight (8) hours' compensation at the time and
one-half rate of Position No. 9 for September 24, 196'1.
EMPLOYES' STATEMENT OF FACTS:
There is in evidence an Agreement bearing effective date October 1, 1940, reprinted May 2, 1955, including
revisions, (hereinafter referred to as the Agreement) between the Southern
Pacific Company (Pacific Lines) (hereinafter referred to as the Carrier)
and its employer represented by the Brotherhood of Railway and Steamship
Clerks, Freight Handlers, Express and Station Employes (hereinafter referred
to as the Employes) which Agreement is on file with this Board and by reference thereto is hereby made a part of this dispute.
Position No. 16 Cashier was vacant September 20, 1961 through October
8, 19611, account vacationing incumbent. Absent of a qualified unassigned
employe, W. G. Cadden, incumbent of Relief Position No. 1, was placed thereon
under the provisions of Rule 34 of the Agreement.
Relief Position No. 1 with the following work schedule:
OPINION OF BOARD:
iThe facts giving rise to this dispute are not in
question. A short vacancy (less than 30 days) occurred on Relief Position
No. 1 between September 20 and October 8, 1961, which included two days
per week (round house clerk), two days per week (cashier), and one day
per week (clerk-baggageman). The controversy arises from the filling of the
clerk-baggageman position to which there was no regularly assigned employe.
Carrier filled that position with an unassigned employe who had not
worked 40 hours during that week.
Petitioner contends that Carrier should have filled the position with a
regular assigned employe, and alleges violation of Rule 34 (c) of the Agreement and an "understanding" dated June 12, 1957 between the Employes'
Negotiating Committee and Carrier's Assistant Manager of Personnel.
Rule 34 (b) and (c), pertinent to this inquiry, is stated, as follows:
"(a) New positions and/or vacancies of thirty (30) calendar days or less duration, may be filled without being advertised, at
the option of the employing officer. New positions and/or vacancies
of doubtful duration, need not be advertised until the expiration of
thirty (30) calendar days, in connection with which, so far as practicable, the approximate duration of the work will be given.
"NOTE: Subject to (b) and (c) of this rule.
"(b) New positions or vacancies of thirty (30) calendar days
or less duration, shall be filled, whenever possible, by the senior
qualified unassigned employe who is available and who has not performed eight (8) hours work on a calendar day; an unassigned employe will not be considered as being available to perform further
work on vacancies after having performed five (5) days or forty
hours of work at the straight time rate in a work week beginning with
Monday, except when such unassigned employe secures an assigned
position under the provisions of Rule 33 or returns to the extra list
from a position to which he was assigned, in which event he shall be
compensated as provided for in Rule 20, Sections (b) and (c).
"NOTE: 1. An unassigned employe placed on a vacancy or a new
position having rest days of Saturday and Sunday will
remain thereon until relieved by regular employe or displacement by a senior unassigned employe.
"NOTE: 2. An unassigned employe placed on a vacancy or new
position having rest days other than Saturday and Sunday
shall, after having performed five (5) days or forty (40)
hours of straight time work in a work week beginning
with Monday, be released from the position only if by remaining thereon he would work in excess of five (5) days
at straight time rate in his work week. An employe so released shall be privileged to return to the vacancy from
which released at the beginning of the new work week if
the vacancy is then filled by a junior unassigned employe,
or he may displace any junior unassigned employe, or place
himself available for subsequent vacancies. If no regular
employe is available and an unassigned employe is used
14290
5
after having performed five (5) days or forty (40) hours
of straight time work on vacancies in his work week beginning with Monday, he shall be compensated therefor at
the overtime rate.
"(c) If a qualified unassigned employe is not available, position will be filled by the senior assigned employe who makes written
application therefor and is qualified for such vacancy, and when assigned shall take all of the conditions of the position; if a qualified
unassigned employe thereafter becomes available he may not displace the regular employe filling the temporary vacancy unless he is
senior to such regular employe."
The claim of violation of Rule 34 (c) is unwarranted. There was no,
"written application" made by the Claimant as is required, and we need
not consider it further.
The question of the June,12, 1957 "Understanding" remains.
Petitioner contends that on June 12, 1957 the parties entered into an
agreement that an unassigned employe must be qualified for all positions
included in a relief position before he can be assigned.
Parenthetically it should be noted that neither the employe assigned to
the position nor the Claimant were qualified in this respect. The Carrier
states that "neither the Claimant nor the unassigned employe involved were
qualified for any position included in the relief position with exception to the
one day fill out position in the schedule of Clerk-Baggageman, for which
position the unassigned employe who had performed less than 40 hours of
work in his workweek was eligible and used thereon on date involved as provided in Rule 34 (b)."
On the property, Petitioner alleged violation of the June 12, 1957 agreement styled "Memorandum of Understanding", and, alternately, "Memorandum of Agreement".
Petitioner alleged in a letter dated February 21, 1962 to Carrier that:
"In the Memorandum of Agreement reached on June 12, 1957,
it was clearly set forth that . . .
Elsewhere in the same letter:
"Further we contend the Memorandum of Agreement of June
12, 1957, clearly used the term 'unassigned' and does not apply to
regularly assigned employes . . ."
Petitioner admits that such an "understanding", in written form, did not
exist. Petitioner admits that it was an oral understanding which was never
reduced to writing.
Even if there was in fact an oral understanding and it was raised in
such a manner on the property as to give Carrier full notice, the record's
paucity of competent and probative evidence substantiating such an alleged
agreement precludes us from inquiring further into its substantive effect.
14290 6
FINDINGS: The Third Divisiom of the Adjustment Board, upon the
whole record and all .the evidence, finds and holds:
That .the parties waived oral hearing;
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 Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 31st day of March 1966.
LABOR MEMBER'S DISSENT TO AWARD 14290,
DOCKET
CL-15281
I dissent to Award 14290, Docket CL-1528,1, because I cannot agree that
there was any "paucity of competent and probative evidence substantiating"
the agreed and accepted interpretation requiring that unassigned employes
be qualified for all positions included in a relief assignment, which was what
was here involved.
The oral understanding was buttressed by Carrier officers instructions
of record which read in part:
"Please instruct Chief Crew Dispatcher, also any other crew
dispatcher handling extra clerks, that in the future when a known
vacancy exists on a relief assignment for a period of time wherein the
extra clerk is not qualified to cover all positions of that relief assignment, the extra clerk will not be used thereon." (Emphasis added)
Another read in part:
"Recently on this Division claim was filed by the Clerks' Organization on behalf of a regularly assigned clerk who had been relieved
on his rest days by an extra clerk who had been called to fill a
vacancy on a regular relief position, but who was only qualified to
work three days of the five-day relief position.
The contention of the Organization is correct that when an
extra clerk is called for a vacancy he must be qualified to work
all days of the vacancy or he should not be utilised on the vacancy
at all.
14290 7
In this particular case, we are obliged to pay the claim because
the extra clerk was not qualified to work two days of the relief
assignment, * * *." (Emphasis added)
And in another it reads in part:
"Question has been raised as to proper use of extra clerks in
filling vacancies on regular relief assignments for clerical positions
when such assignments relieve on more than one type of clerical
position; for example, Train Clerk, one day, Car Clerk two days, and
Asistant Chief Yard Clerk two days.
"When such vacancies occur, if an extra clerk is to be called,
such extra clerk must be qualified to fill all positions relieved by the
relief assignment. This applies even though it is known the vacancy
will exist for only one or two days and the extra clerk is qualified
to fill the positions being relieved on the days the vacancy exists.
Stated another way, unless an extra clerk is qualified to fill all positions relieved by a relief assignment, he cannot be used to fill any
vacancy on the relief assignment." (Emphasis added)
Carrier's basis for initially declining this claim was that neither Claimant
nor the extra employe were qualified to fill all positions included in the relief
assignment. The Superintendent stated:
"Take exception to your letter dated November 14th, especially
your interpretation of that portion referred to Memorandum of
Agreement for use of unassigned employee only.
Regular assigned Clerk Test is only qualified to fill one position
on the Relief assignment whereas unassigned Clerk Rush is qualified
to fill two positions on the Relief assignment, although neither of
them are qualified to fill Cashier position." (Emphasis added)
The highest officer held that:
"*
* * this was simply a case where neither the claimant nor
the unassigned employe involved were qualified for any position
included in the relief position with exception to the one day fill out
position in the schedule of Clerk Baggageman, * * *."
Thus the only thing which the Award points out is the value of reducing
such understandings to writing so that neither party can later deny them.
As stated earlier, I felt there was sufficient evidence to support the existence of the understanding. There is also evidence that that interpretation
was rejected by Carrier in this case because neither Claimant nor the extra
clerk were qualified for all positions included in the relief assignment.
For the above reasons I dissent to this Award.
(s) D. E. Watkins
D. E. Watkins, Labor Member
4-20-66
14290
CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT,
AWARD 14290, DOCKET CL-16281 (Referee Zumas)
It is elementary that Claimant has the burden of proving all essential
elements of the claim. See Awards 13028 (Hall), 12256 (Dolnick), 10946
(Dorsey), 10048 (Dugan), among many others.
As stated in Award 10950 (Ray): "The burden is not on the Carrier to
show that its action is authorized by some provision in the Agreement. Rather
the burden is on the complaining Employes to show that the action violates
some portion of the Agreement."
In this case the Claimant charges Carrier with violation of an alleged
oral understanding which expressly disqualified unassigned employes from
filling temporary vacancies in relief assignments under the circumstances here
involved, and that is the only violation charged. The most essential element
of the claim is obviously the alleged oral understanding, the existence of which
is denied by Carrier.
The Employes failed to prove that the alleged oral understanding exists:
their evidence is both inadmissible and demonstrably erroneous.
In all handling on the property, the Employes contended that there was
a written agreement. However, in final conference they were convinced that
no such written agreement existed. (This inexcusable confusion of the Employes may have been the result of a change in the office of General Chairman
between the date of the alleged agreement and .the date of this claim.)
Having been convinced in final conference on the property that they had
no written agreement, the Employes took a new approach in their submission
to this Board and claimed an "oral understanding." To prove their alleged
oral understanding they submitted two types of evidence.
First, they submitted what purports to be an unsigned written report
by a "negotiating committee." This alleged report to the Employes would
be of no value if it were admissible, for it is purely self-serving, it does
not bear any signature or other authentication, and it does not allege that
any agreement or understanding was reached. It simply states that an opinion was requested and received from a Carrier officer during an informal
discussion. In any event, we are precluded from considering this as evidence
in this case because the record shows that it was never submitted to Carrier
during handling of the claim on the property.
The other evidence submitted by the Employes purports to be copies:
of letters allegedly written by three of Carrier's ten Division Superintendents.
These letters are also irrelevant. None of them makes any reference to the
alleged understanding, and one of them is dated ten months prior to the date
of the alleged understanding. These letters are also inadmissible, for they,
too, were not submitted to Carrier or referred to in the handling of this claim
on the property.
As a general rule, this Board will not consider such evidence when it has
not been submitted to the other side during handling on the property. Awards
9029, 10529, 11174, 12012, among many others.
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(1 'he Employes place greatest emphasis on the alleged letter of the Super
intendent on the Shasta Division (the Division where the claim arose) and
the dissenter quotes from this letter first. This letter is demonstrably false.
The alleged author thereof was not a Superintendent of any division, much
,less the Shasta Division. He was only a trainmaster. He was, therefore, in
no position to make an interpretation of the Clerks' Agreement, even on a
local basis. Furthermore, he has no record of ever having written such a
letter as that asserted by the Employes. The obviously demonstrable error
of this alleged evidence of the Employes clearly demonstrates the wisdom in
the rules that prohibit presentation to the Board of evidence which has not
been presented to the other side and fully discussed on the property.
The Employes submit nothing else as evidence. They do resort to
inneundos, alleging there have been certain payments of such claims to which
'they are forbidden by agreement from referring. If this allegation is true,
'the Employee have clearly committed a breach of confidence by violating
their pledge to Carrier in making compromise settlements. However, we must
'assume the allegation itself is false, for it was never during handling on the
property and Carrier emphatically denies that there is any truth in it.
I
The record is thus completely barren of any admissible proof that the
parties ever made the disputed oral understanding on which the claim is
expressly based. In these circumstances, the Board had no alternative but to
deny the claim, irrespective of its views concerning the validity of an understanding. See Awards 2140 (Thaxter), 5057 (Kelliher), 10442 (Gray) and
13154 (McGovern) on the treatment this Board has accorded such oral understandings.
Keenan Printing Go., Chicago, Ill. Printed in U. S. A.
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