NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
CARRIER'S STATEMENT OF FACTS: The Denver Union Stock Yard Company owns and operates a large livestock market serving the principal producing areas of the intermountain West. More than one hundred acres of land and a substantial investment in pens, scales, loading chutes and other specialized livestock marketing facilities are used exclusively for the sale and handling of livestock. The Company does not own or sell the livestock consigned to the market. It provides only the facilities for the sale of livestock and the personnel required to receive consignments, delivers them to the market agencies who actually sell the livestock, and delivers livestock to the eventual buyer.
The Company was first declared to be a common carrier so far as its loading and unloading of livestock by rail in Ex Parts 127, decided on April 7, 1941, and reported in 241 ICC at page 241. Since that time, there have been many changes in the movement of livestock and in 1964 only 4.1% of total yard personnel hours was required to handle railroad business.
The operation of a stock yard in interstate commerce, such as Denver, is regulated by the provisions of the Packers & Stockyards Act of 1921, as amended; and by the numerous regulations of the Secretary of Agriculture promulgated under the provisions of the Act. The intent of these regulations is to define the responsibilities of the stock yard companies, the market agencies, and other market interests in the sale of livestock to the end that the legitimate interests of the consignor (who is frequently not present when his livestock are sold) are protected. This separation of responsibility between the Yard Company and the market agencies has been recognized by law since 1921 and, in fact, by the markets themselves, for almost one hundred years.
The Company, consistent with the provisions of the Packers & Stockyard Act, holds itself out to perform certain services incident to the handling of livestock and these services are set forth under Section 201.17(b) in the definition of "yardage." The market agency, completely independent of the Stock Yard Company, as the sole agent of the consignor in effecting the sale of livestock, is directly responsible to his principal to select the method of sale which, in his opinion, best serves the interest of his consignor.
Since the effective sale of livestock depends on maintaining orderly marketing hours and practices, these independent market agencies, through the Denver Livestock Exchange, establish the hours of trading and practices at the Denver market. Hours of trading, for example, are dependent on the time available in the daylight hours for the proper preparation of the livestock for sale, the availability of buyers, and the effect of market activities at other markets who operate on different schedules. Accordingly, the Denver Livestock Exchange has, from time to time, changed the market hours consistent with the change in season and the effect on the overall marketing pattern of a change to Daylight Saving time at other markets. Recognizing this prerogative of the Exchange, the Company has always acceded to the requests of the Exchange to change marketing hours.
OPINION OF BOARD: Effective Thursday, February 6, 1964, and continuing each Thursday until September 1 1964, the named Claimants were instructed to report for duty at 7:30 A. M. This was one-half to one hour before the starting time of their regular assignments. Claimants were released at 4:00 P. M. on these days and were paid eight hours at straight time rate for the work performed.
Claimants ask that they be paid at the time and one-half rate for the time worked before their assigned starting time and at the prorate, rate for the time after 4:00 P. M. till the end of their regular assignment.
When the established starting time of a position is changed more than one (1) hour for five (5) consecutive days, employes affected may, within five (5) days thereafter, exercise their seniority rights to another position. Changes of starting time brought about by action of the Exchange in changing market hours or by changes forced by daylight saving will not be considered as a change in established starting times.
"The Denver Livestock Exchange requested the Company to make previsions to begin the sheep auction on Thursday only at 7:30 A. M., beginning February 6, 1964. In their letter of request, the Exchange pointed out that sheep receipts are at a seasonal low, and the services of their auctioneer are required at the cattle auction, which begins at 9:00 A. M. on Thursday."
"The rule is quite clear that this provides - and was intended to provide - for a change that might be brought about by the Exchange, and was written to exempt the Company from having to pay penalty overtime in such instances. The rule has been in effect for twenty years, and has never been questioned as to the right - when called upon by the Exchange - to open the market earlier without penalty."
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
Award 14309, Docket CL-15220, is in serious and harmful error and contrary to one of the basic concepts of contract construction.
All rules of an Agreement are supposed to be harmonized so that they do not contradict each other. Here the Referee, by accepting Carrier's bare assertions, allows a specific exception to a specific rule to be expanded so as to apply also to Rules 21(g) and 21(j) reading:
Now the clarity of those Rules is certainly equal to the language of Rule 15 quoted in the Award and, notwithstanding that 21(g) contains only one exception, the Referee has here construed the Agreement so as to add another exception thereto. Such violates another basic concept of contract interpretation.
While more could be said there is sufficient evidence in the Award, without even referring to the record, that amply supports the fact that the Award is in error. Obviously if the starting time was not "changed" Claimants were due the payment requested "for time worked before their assigned starting time" and for the time they were suspended from work during their regular assigned hours.