NEW YORK CENTRAL RAILROAD
(Southern District)
(1) Carrier violated the current Clerks' Agreement at Cincinnati, Ohio, January 15, 1965, when it abolished Engine Dispatcher-Work Report Clerk Positions Nos. 18 and 19 and 34, transferred the work thereof from Cincinnati, (Riverside Yard) Ohio, to Sbaronville, (Sharon Yards) Ohio, without giving the General Chairman proper notice and consummating an agreement prior to transferring said work.
(2) Carrier shall now compensate Mr. Fred Fox, former incumbent of Job No. 18, hours 3 P. M. to 11 P. M., rest days Thursday and Friday, rate of pay $21.36 per day; Mr. S. M. McNabb, Job No. 19, hours 11 P. M. to 7 A. M., off days Tuesday and Wednesday, rate of pay $21.36 per day; Mrs. May A. Harbsteit, Job No. 34, Relief Clerk, rest days Sunday and Monday, rate of pay four days at $21.36 per day, one day at $21.868 per day for all wage loss and/or differentials in rate of pay which may have been suffered by them, for each work day subsequent to January 15, 1965, which they would have worked prior to Carrier transferring their work and continuing until Carrier complies with the agreement.
(3) Carrier shall now compensate Fred W. Fox the customary mileage rate of 8 cents per mile for 163 miles, or $13.04 per day, five days per week, for January 16, 1965 and all subsequent dates until the Agreement has been complied with.
OPINION OF BOARD: 'The Brotherhood claims that the Carrier violated the terms of an Agreement between the parties dated, May 23, 1962, when, on January 6, 1965, it issued a Notice, over the signature of T. J. Brown, one of its Superintendents, abolishing the Engine Dispatcher-Work Report Clerk Positions Nos. 18, 19 and 34 at Riverside, Ohio and transferred the work to Sharon Yards, at Sharonville, Ohio, without giving the General Chairman of the Brotherhood the proper notice and consummating an agreement prior to the transferring of said work, as called for by the Agreement.
The Carrier does not deny the transfer of the work and claims such transfer, in the manner in which made, does not violate the provisions of the Agreement, as claimed by the Brotherhood.
In order to resolve the issues covered by NMB Case A-6216, in connection with the transfer of work being performed on one of the New York Central operating districts to another New York Central ,operating district, as well as transfer of work or positions from one seniority district or city to another seniority district or city in the same operating district, it is agreed the following principles will govern:
The issue to be determined by this Board is whether or not the Carrier's notice dated January 6th, 1965, abolishing the positions therein enumerated, at Riverside, Ohio, as of January 15th, 1965, violated the provisions of the Agreement, between the parties, dated May 23rd, 1962.
The Brotherhood contends that the notice of January 6th, 1965, intended to transfer the work performed by the Claimants from one self-governed city to another, i.e. from Riverside Yard, Riverside, Ohio to the self-governed city of Sharonville, Ohio; that the provisions of the Agreement of May 23, 1962, are clear, specific and unambiguous in their terms; that under the terms of the Agreement, if the Carrier desired to transfer work being performed from one of its operating districts to another; from one seniority district or city to another seniority district or city, it was required to give proper notice to the General Chairman; that the General Chairman was to receive 45 days' advance notice of the Carrier's intention to make such transfer; that any changes contemplated could not be put into effect until 90 days from the (late of the required notice; that the notice contain the various items listed in paragraph "1" of the Agreement; that an agreement be negotiated pursuant to the provisions of paragraph "2" of the Agreement; that the Notice dated January 6th, 1965, does not in any respect comply with the terms of the Agreement of May 23, 1962.
The Carrier does not deny that Riverside, Ohio and Sharonville, Ohio, are two separate and distinct political entities. It does contend, however, that the transfer of the work involved in this dispute is " * ` 'F merely from one point in a city to another point in the same city ' · °k," and therefore the
provisions of the May 23, 1962, agreement do not apply. We note from the record before us that when the Carrier's Terminal Superintendent, Mr. Brown_ denied the, claim by letter dated June 8th, 1965, he stated in that letter among other things, the following:
The Agreement of May 23, 1962, does not contain the word "Terminal." If the parties intended that the provisions of the Agreement should apply to "Terminals" or "Metropolitan Areas" it should have so stated.
The parties are in sharp disagreement in their interpretation of the Agreement.
We have always followed the basic and ordinary rules of contract law in interpreting and contruing a contract. We are bound by the terms and provisions of the Agreement before us. We have no power or authority and we may not make new provisions, abrogate provisions or alter existing provisions, of the Agreement. That is the province of the parties themselves. We may only ascertain and give effect to the intention of the parties and that intention is to be deduced from the express language employed by them.
When we interpret and construe the provisions of an agreement, we inquire into what was the meaning of the agreement at the time and place it was made between the persons who were the parties to the agreement; the surrounding circumstances under which the agreement was made in order that we may judge the meaning of the words; and the correct application of the language of the agreement; the main object of the agreement and the purpose which the parties sought to be accomplished by it must be considered in ascertaining their intention. We also give common or normal meaning to the language used in the agreement unless the circumstances under which the agreement was made show that a special meaning should be attached to the agreement.
The Agreement before us speaks for itself. It is clear and specific in its terms. It required the Carrier to do certain things and perform certain acts before it could transfer work from one city to another city.
The Carrier admits that Riverside, Ohio and Sharonville, Ohio, are two separate and distinct political entities or cities. Its contention that the work involved was merely transferring work from one point in a city to another point in the same city is without merit. Its contention that the work was being transferred within the Cincinnati Terminal is also without merit. There is no evidence to substantiate either contention. We hold that the notice dated January 6th, 1965, failed to comply with the express provisions of the Agreement of May 23rd, 1962, in that it failed to give proper notice and that no agreement was negotiated as required by the terms of the Agreement.
Claim is made by Mr. Fox, Item 3 of Claim, that he be compensated for mecessary mileage for traveling to his position, a distance of 163 miles daily at the rate of 8 cents per mile.
The Carrier does not dispute nor does it offer any evidence to refute the mileage claimed by Fox. It does claim that there is no specific rule governing this type of situation; that Fox has, cited no such rule and that in the absence of citing such a rule, that the claim is denied.
The Brotherhood contends that it was the intent and purpose of the Agreement that when work positions were to be transferred that the implementing agreement would contain the necessary protective benefits which would charge the Carrier's account with all expenses incurred by the employe or employes adversely affected as the result of such transfers. This is mere speculation, conjecture and supposition.
This Board has held on numerous occasions that it has no authority to assess damages based upon conjecture ands speculation. The Agreement containing no specific rule providing for such reimbursement, we have no authority to supply such rule. We are constrained to deny Item 3 of the claim. See Awards 10598; 15533.
This Board has: on numerous occasions, passed upon claims of a similar nature. We have held such claims to be indefinite and vague and have denied them. See Awards 13559; 13652; 14401.
The burden of proving the names and/or identity of any employe or employes involved in claims before this Board rests with the Brotherhood.
The Brotherhood in support of its contention submits Award 10059. A reading of that Award discloses that the group involved was "readily identifiable." That situation does not exist in the dispute before us.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: