TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
Claims have been presented in behalf of J. J. Uehling, for payment of eight hours computed at time and one-half rate on March 13 and April 3, 1963; in behalf of F. W. Pettit for payment of eight hours at time and one-half rate on March 14, 1963; in behalf of P. L. Bray for payment of eight hours at time and one-half rate on March 15, 1963; and in behalf of C. A. Burke, for payment of eight hours at time and one-half rate on March 18 and April 1, 1963, account not filling the third trick telegrapher's position at Elma for eight hours on each of those dates. These claims have been declined.
OPINION OF BOARD: The Carrier maintains at Elms, Washington, a position, classified as 3rd Telegrapher, assigned to work 12:01 A. M. to 8:00 A. M. Monday through Friday, with rest days of Saturday and Sunday. This position is filled from the Carrier's Tacoma Division (West) Seniority Roster.
Under date of March 5, 1963, the Carrier bulletined the position as a permanent vacancy by reason of the fact that it was vacated by the former occupant of the position.
The position was awarded to one Mr. L. D. Blue under date of March 19, 1963. Mr. Blue was transferred to and occupied this position on April 8, 1963.
Prior to and pending the transfer of Mr. Blue to the vacancy in the position of third trick telegrapher at Elms, the vacancy was protected and filled by Extra Telegrapher J. A. Hankonson. Mr. Haakonson was also an extra train dispatcher.
On March 13, 14, 15, 18 and April 1 and 3 of 1963, Haakonson performed services, of rest day relief work, as an Extra Train Dispatcher, at Tacoma, Washington. On those dates, the position of third shift Telegrapher at Elma was not filled, but the work of the position was protected by the Carrier requiring employes assigned to ,the other shifts to work overtime and outside of their assigned hours.
On dates other than those in dispute, Haakonson would be at Elms and protect the short vacancy there.
The Claimants contend that the Carrier violated the Agreement, between the parties, by closing the position of Third Trick Telegrapher on the dates involved in this dispute at Elms; that in the absence of any available extra employes the Carrier should have covered the position with regular employes who were on their rest days: that the Claimants, named in this dispute, were on their rest days and were available, under the hours of service, to work the position.
The Carrier denies any violation of the terms or provisions of the Agreement between the parties.
An examination of the record, in this dispute, discloses that there has been presented to this Board certain issues that were not presented or discussed on the property. We have on numerous occasions held that issues not raised, discussed or considered on the property and evidence not submitted,
discussed or considered on the property, may not and cannot be considered by this Board. We will not consider them in thus dispute.
Claimants allege a violation of Rules 25, 27, 28, 60 and 65 of the Agreement. We are primarily concerned with the language contained in Rule 27 and more particularly subdivision (a) of the rule. It reads as follows:
The parties are in sharp disagreement with reference to the meaning of that part of Rule 27 (a) which reads "WILL BE FILLED." The Claimants contend that the language is mandatory. The Carrier contends that the language is not mandatory but directory.
This Board follows the basic and ordinary rules of contract interpretation and construction. We are bound by the terms and provisions of the Agreement before us. We have no power or authority and likewise, we may not make new provisions, abrogate or alter the existing provisions of the Agreement. That is solely the province of the parties themselves. We do, however, endeavor to ascertain and to give effect to the intention of the parties and that intention must be deduced from the language employed by them.
In interpreting and construing the provisions of an agreement we inquire into what was the meaning of the writing at the time it was made; the main object of the agreement or the purpose which the parties sought to accomplish by the agreement. If we find that there is some ambiguous language in the agreement, but that the meaning is not uncertain, we may not and cannot make a new agreement under the guise of construction. However onerous the terms of an agreement may be, they must be enforced if such is the intention of the parties using the language. We can often ascertain the intention of the parties by their actions in carrying out the terms or provisions of an agreement or contract.
In determining whether the terms or provisions of an agreement are mandatory or directory, the end sought to be attained by the terms or provisions of the agreement are always important to be considered. If the end cannot be effectuated by holding the terms or provisions to be directory, they must, if it can consistently with the language, be held to be mandatory.
One test for determining whether the terms or provisions of an agreement are mandatory is whether they contain negative words which render the performance of the acts improper if compliance is not made with the terms or provisions. The absence of negative words tends to show that the terms or provisions of the agreement are directory. If the agreement imposes a penalty for the violation of its terms or provisions, it is reasonable to assume that the parties to the agreement intended that its provisions be followed, and they are considered as mandatory. The fact that the agreement is framed
in or contains mandatory words, such as "shall" or "must;" is of slight, if any, importance in determining whether the act is mandatory or directory.
The word "will" is defined in Webster's New Collegiate Dictionary, as follows:
If it was the intention of the parties that under the rule the Carrier was obligated to fill the vacancy then the proper wording was not inserted in the rule. It does not, in our opinion, include a mandatory direction that the position be filled, as claimed by the Claimants.
Based on the fact that Rule 27 (a) does not contain any negative words and on the definition of the word "will," we find that Rule 27 (a) is directory and not mandatory.
There can be no question but that the Carrier has the right, under the Agreement, to blank the vacancy or position. We have so held on any number of occasions. We have also held that the position may be blanked in whole or in part. See Awards 7136; 13042; 14332 among others. In the present dispute the vacancy was not completely blanked as part of the work was performed by telegraphers at the same location on a call basis.
The case of the Claimants depends on whether the Carrier is obligated to fill the position in question. The Claimants have not cited any provision in the Agreement which mandates the Carrier to fill the position. We have held that it is within Management's and/or Carrier's prerogative to fill or not to fill a position unless some rule restricts this right.
* * ' The sense of the Rules is that new positions or vacancies can be filled by Carrier only in compliance with the procedures agreed upon therein. These rules, neither literally or by implication, can be construed as imposing an obligation on the Carrier to fill a vacancy. To construe the Rules as prayed for by Petitioner, 'we would have to read into (them) that which is not contained therein'-this would be beyond our power."
Having held that the provisions of Rule 27 (a) are directory, we hold that in the event that the Carrier did fill the vacancy in question on the dates in question, the Carrier would have to comply with the provisions of Rule 27 (a).
I must respectfully disagree with the reasoning by which the referee reached his conclusion that Rule 27(a) places no obligation on the Carrier to fill a temporary vacancy of less than fifteen calendar days in a permanent position as defined in Rule 25.
That conclusion was based upon a well presented exposition of text-book rules of contract construction, such as are generally used by the courts to. determine the "intent" of ordinary private contracts. I have no doubt that this exposition would receive a rating of "Excellent" in a law school. I have no doubt that it would represent correct reasoning if used for the purpose to which it applies.
But it is not sufficient for the interpretation of labor agreements, particularly in the railroad industry.
As presented here, the reasoning itself has at least two defects which I consider to be fatal to 'the purpose sought to be achieved: (1) It does not give effect to another rule of construction requiring that the "intent" he determined by considering the agreement from its "four corners"; and, (2) it does not give effect to the equally respectable rule that the words used must. be considered not merely as reasonable men would expect, but as reasonable men would expect them to be used in their setting, or surrounding circumstances.
This latter concept-lacking in the award-points up the reasons why labor agreements are things apart from other contracts. They have long been so considered both by this Board and the courts, notably the Supreme Court. A few quotations from official decisions of these bodies will serve to illustrate my point:
"The rigid application of legalistic principles of contract construction to agreements collectively bargained by management and labor to meet the realities of modern industrial life is, in our opinion, open to question as a consistent, unvarying practice. This is especially true of labor-management agreements in the railroad industry where the language used and the technical idiom employed are not always susceptible of either easy or quick understanding. Resort to custom, usage and practice in this business more often than not is necessary to gain an understanding of what the parties intended to accomplish." (Third Division Award 11329, Referee Coburn.)
"The parties conceded that the District Court properly refused to review the merits of the arbitration award. To be valid, however, an arbitrator must draw the essence of the award from the collective bargaining agreement. An arbitrator should not dispense his own brand of industrial justice, but must confine himself to the interpretation and application of the collective bargaining agreement. He may, nevertheless, `look for guidance from many sources.'
(United Steelworkers of America v. Warrior and Gulf Navigation Company-363 U.S.574.)
All of this points clearly to the often repeated truism that labor agreements should be liberally interpreted so as to give effect to the intent as expressed by the words used, considered in their setting surrounded by tradition, custom, usage and practice.
If that reasoning had been followed here, so that the "common law" of the Northern Pacific-telegraph service employes' community had been applied, we would have found that the "intent" of Rule 27(a) and those others having a bearing on the case, was that temporary vacancies of less than fifteen days should positively be filled by one or another of the means provided.