NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that (GL-6451):
EMPLOYES' STATEMENT OF FACTS: On December 15, 1966 Agreement was made by and between the participating Carriers and Employees represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, further identified as Mediation Agreement, Case A-7948 to become effective on January 1, 1967. This Agreement, among other things, included a wage increase of 5% to the existing rates of all employees represented.
It became evident on January 30, 1967 by complaints of Ushers (Red Caps) and substantiated by belated copies of bulletins reaching this office that the Carrier had not properly applied the wage increase effective January 1, 1967 as provided by the Mediation Agreement of December 15, 1966.
Study of the situation showed that the Carrier in applying the increase to Red Caps as provided in Article I Section 1 (f) applied the 5%~ increase only to the hourly rate and ignored all other rates of guarantees involved in the Red Caps basic pay structure.
Claim was filed in letter addressed to Station Master, Mr. P. L. Bolander, and denied by him on May 11, 1967. Appeal was made to Manager of Personnel, Mr. U. B. Lelwellyn, the highest officer of the Carrier to whom appeals could be made on May 19, 1967. Manager of Personnel, Mr. U. B.
Prior to January 1, 1967, Red Caps on this Carrier were paid $2.4408 per hour. In addition Red Caps were allowed 124 for each bag carried in excess of 30 during a tour of duty. The hourly rate of $2.4408 was increased by 6% effective January 1, 1968, resulting in a rate of $2.66284 per hour, and the 124 for each bag carried in excess of 30 per tour of duty was continued.
OPINION OF BOARD: The Organization contends that Carrier failed to properly apply an Agreement which would have increased the rate for bags carried by 6%.
It is the Carrier's position that the Mediation Agreement made December 16, 1966 (Case A-7948) did not apply to the per-bag figure, but only to the compensation based on hours worked.
Effective April 1, 1949, the rate of pay for Ushers became "37.6¢ per hour or 104 per bag whichever was greater plus 614 per hour."
In September, 1949, the 40-hour Work Week Agreement caused the rates to be adjusted to "464 per hour or 124 per bag plus 71.8¢ per hour."
In denying the claim, Carrier said that Article 1, Section (F) of the December 16, 1966 agreement did not include the per-bag rate in excess of 30 during a shift as either an hourly rate or guarantee.
It must be considered when the contract is to be interpreted in a normal ands usual sense that the per-bag rate is an integral part of determining the rate of pay; the Usher is guaranteed to be paid at an hourly rate or a per-bag rate "whichever is higher." No reasonable application of the 6% increase would exclude such a vital part of the pay formula.
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
The parties to this case have stipulated that the case turns solely on whether the "per-bag" allowances is a "guarantee" or a "special allowance" within the meaning of those terms as contained in the Mediation Agreement dated December 16, 1966. Article I, Sections (f) and (h) of that agreement contain the following:
The "per-bag" allowance is not included in the "fixed daily, weekly or monthly rates of pay", and the very rules cited by the Employes conclusively establish that fact. Thus it is a special allowance as defined in the agreement.
The only reasons given in the award for finding that the "per-bag" allowance must be regarded as a guarantee and therefore included in the application of the 5 percent increase are that it "is an integral part of determining the rate of pay"; and that "the Usher is guaranteed to be paid at an hourly rate or a per-bag rate `whichever is higher.' "
The obvious difficulty with this reasoning is that we are bound by the agreement which the parties made, and the parties did not adopt the test of "integral part of determining the rate of pay"; neither did the parties adopt a test of the particular payment being provided for in the agreement. It is elementary that every special allowance provided for in the agreement is both an integral part of the pay structure and payment thereof is guaranteed by the fact that it is provided for in the agreement. The fallacious reasoning adopted in the award could logically require the inclusion of the 5 percent increase in every special allowance that is provided for in the agreement.
This matter is discussed in detail in the memorandum which the Carrier Members handed the Referee when the case was discussed in panel and that memorandum is incorporated herein by reference.
We respectfully submit that the award is invalid for the reason that it manifests an infidelity to the agreement which the parties made. It manifestly rejects the test which the parties themselves adopted and adopts new and different tests which are inconsistent with that adopted by the parties.
By quoting Sections (f) and (h) of the December 15, 1966 Mediation Agreement, the Carrier Members attempt to pursuade that the payment per bag is a "Special Allowance" and "not included in the fixed daily, weekly or monthly rates of pay."
The Carrier Members apparently overlooked that part of Appendix 1 of the current Agreement which reads in part as follows:
It is quite apparent that the cost per bag is a part of the hourly and daily rates of pay; therefore, the Award is proper and in consonance with
the applicable Agreement.