NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number
MW-21621
David C. Randles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (Southern Pacific Transportation Company
( Texas and Louisiana Lines
STATEMENT OF
CLAIM:
Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated and continues to violate the Agreement
when it requires machine operators who successfully bid for or displace
on machine operator's positions, to break in without compensation therefor
(System File
MW-75-38).
(2) All
machine operators be allowed payment for break in period
in qualifying for positions as has been done in the past.
OPINION OF BOARD: The claim of the Organization involves a dispute relative
to the interpretation of Article 8, section
6
of the
Agreement, which reads: "Employes accepting positions in the exercise of
their seniority rights will do so without causing expense to the Compare."
Prior to arguing merits, the Carrier contends that the Board has
no jurisdiction over this matter in that this claim was previously settled
on the property in a previous case. A review of said case (MW
72-38)
reveals that the matter was withdrawn; however, the letter effecting the
settlement reads in part: "This settlement is not without prejudice to the
position of either party, establishes no precedent and will not be referred
to in connection with any other case." The case law of the Board, as
well as the intent of the Organization as expressed above, supports a
decision of the Board to hear the claim.
The Carrier interprets this Article to mean that said employes
must use their time qualifying without compensation in that the alternative
to said practice would require the Carrier to compensate two
(2)
employes,
one to operate the machinery and the other who is being trained as a new
operator. The Carrier asserts that this has been the past practice.
The Organization contends that on April
15, 1975,
Carrier promulgated
instructions which are contrary to Article
8,
section
6,
in that this
article is relative only to expense involving meals, lodging and travel in
the exercise of seniority and at no time has it been interpreted to deny
Award Number 21656 Page 2
Docket Number b1W-21621
the employe wages. The Organization further contends that the interpretation placed upon the art
Carrier admits that it compensates employes to qualify on new machines as
well as new employes to qualify for positions involving the operation of
machines.
The Carrier and the Organization submit that it has been the past
practice as they individually support their opposing positions. Under
generally accepted arbitral practice, past practice may be relevant in
determining the intention of the patties to an agreement where said agreement
is ambiguous or silent. In order to prove past practice, the petitioner
must present evidence that said practice must be of sufficient generality
and duration to imply acceptance of it as an authentic construction of
the contract. The record in this claim does not provide sufficient
evidence to meet this criteria. The Organization submits letters from
some twenty-five (25) employes who allege that the phrase "at no expense
to the Company" was limited to expense relative to meals, travel and
lodging and that this was the past practice. The reliability of these
letters was challenged by the Carrier in its declination of August 14,
1975. Accordingly, we have no authority to render a decision in this
matter lacking sufficient and substantial evidence in the record as to what
the parties to the Agreement intended. Accordingly we will dismiss the claim.19
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Claim is dismissed.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Se retary
Dated at Chicago, Illinois, this 18th day of August 1977.