NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION
EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6521) that:
EMPLOYES' STATEMENT OF FACTS: Employe E. C. Johnston is the regularly assigned occupant of Yard & Ticket Clerk Position 6314 at Sioux Falls, S. D. with assigned hours 5 AM to 2 PM, Monday through Friday, with Saturday and Sunday rest days. Employe Johnston has a seniority date of December 3, 1945 in District No. 42, which covers Sioux Falls, S. D.
On Sunday, July 16, 1967, which was employe Johnston's rest day, he received a telephone call from Agent L. A. Fiorello at 3 PM notifying him that his position (6314) was abolished effective 5 AM July 17, 1967. Consequently, he received less than the required 16 hours advance notice, actually only 14 hours. See copy of employe Johnston's statement attached as Employes' Exhibit "A".
Timeslip dated July 17, 1967 was filed by employe Johnston with Superintendent W. K. Peterson accompanied by a letter dated July 19, 1967, reading:
OPINION OF BOARD: Claimant is the regularly assigned incumbent of the Yard and Ticket Clerk Position at Sioux Falls, S.D.. On July 16, 1967 Claimant was notified by telephone at 3:00 P.M. that his position was abolished effective as of 5:00 A.M. July 17, 1967 because of a threatened strike by Shop Craft employes which strike subsequently occurred The facts are not disputed.
Organization claims an amount equal to 8 hours pay for employee E. C. Johnston and alleges a violation of Rule 12 by the Carrier. Rule 12(a) provides, in part, as follows:
Carrier admits that the purpose of the notification provisions of Rule 12 is to give an employee whose position is to be abolished time to investigate other positions and to exercise his seniority in acquiring another job. The shorter 16 hour notification period in emergency conditions has the same purpose as the 5 day notification period in non-emergency condition except it is calculated to relieve Carrier from a burden which is not of its own making. The same reasoning pertains to the last sentence of that part of Rule 12 (a) set out above.
Undoubtedly, by that sentence, the parties to the agreement intended to allow Carrier to effectively abolish a position 16 clock hours from the time of the notice in emergency cases without regard to whether the last minute of the 16th hour fell during a regular assignment.
Organization contends that such an interpretation does violence to Rule 26 which provides:
Organization, in effect, urges us to read into Rule 26 an "eight hour or nothing" meaning which would override the express wording of Rule 30 allowing a partial day and the express exception of the last sentence of the first paragraph of Rule 12(a) to a full 8 hour day. Such an interpretation would be strained and unwarranted.
Rule 30 seems to be highly pertinent to this case. It provides for "report in" pay when an employee is prevented from working "by condition beyond the control of the Railroad Company". This phrase is the very essence of the term "emergency", and easily relates back to Carrier's right to abolish an assignment, in emergency conditions, effective 16 clock hours from the time of notice pursuant to Rule 12(a).
Carrier confesses liability for 2 hours wages which we find is due to the Claimant.
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
"Carrier admits that the purpose of the notification provisions of Rule 12 is to give an employee whose position is to be abolished time to investigate other positions and to exercise his seniority in acquiring another job. The shorter 16 hour notification period in emergency conditions has the same purpose as the 5 day notification period in non-emergency condition except it is calculated to relieve Carrier from a burden which is not of its own making. The same reasoning pertains to the last sentence of that part of Rule 12(a) set out above.
Organization contends that such an interpretation does violence to Rule 26 which provides:
The Record reveals that only one rule (Rule 12) was relied on by Carrier in handling this dispute on the property. For the first time in its' Rebuttal, Carrier mentions Rule 30, which they say "the employes conveniently 'forgot' to cite". The Referee decided to overlook such "oversight" and permitted Carrier's use of Rule 30 in determining the decision, thus accepting new argument which the Board has long held is far beyond its power and jurisdiction.
There's an old saying that "close doesn't count except in horse shoes", but the "horse shoes" method is what the Referee used here. Using "new math", he took the 16-hour notice provisions required in emergency conditions and subtracted the 14 hours' notice the claimant received and the difference was 2 hours. He added Carrier's admission that it made a mathematical error of two hours, and his admission of new argument pertaining
to Rule 30 which mentions two hours' pay to Claimant account Carrier's violation of Rule 30-Reporting and Not Used, which is the most foreign rule in the Agreement to the Claim which was being considered. Rule 30 becomes applicable only when employes have reported for service and prevented from performing service for the full day.
However, applying the "close-doesn't-count-except" theory, the exception in this Award was Rule 30 because it happens to mention two hours, and the Referee had to come up with that answer because that's all Carrier concedes it might possibly owe to Claimant.
The dissenter believes that such mathematical logic and ingenuity deserve comment.
Worthy mention must also be made to one additional fact: The dissenting Labor Member did not move the adoption of this award because it is in direct conflict with the rules. Support for that reasoning is found in the fact that the Carrier Member of the Board moved its adoption.
CARRIER MEMBERS' REPLY TO LABOR MEMBER'S DISSENT
TO AWARD 17708
The Dissenter first states that Carrier relied on but one rule (Rule 12) in handling this dispute on the property. The record shows the Organization alleged violation of Rule 12 and that the Carrier denied the allegation that such Rule had been violated.
The Dissenter's statement that the Carrier injected Rule 30 into the dispute for the first time in its Rebuttal Submission is also erroneous. A review of the record readily indicated that in its Ex Parts Submission presenting the dispute to this Board the Organization made the following statement as the opening paragraph of it Position:
Thus all rules of the Agreement were placed in issue by the Petitioning Organization. Furthermore, the Organization also specifically referred to Rule 26 in support of its position and which reads as follows:
Rule 26 provides for an exception as to Rules 29 and 30. It is absurd to think that the Board would consider Rule 26 without giving consideration to the exceptions contained in Rules 29 and 30.
Apparently the Dissenter is of the opinion that the Carrier and this Board should look only at the rules specifically quoted by the Organization and should not look at any exceptions referred to therein, nor should they look at other rules that are involved in the disposition of a claim. While we are of the opinion that the same result could have been reached in this