At the time of the incident giving rise to this case, Claimant was assigned as a Relay Electrician at Durant Yard, New York. During the period of August 27 through 31, 1990, Carrier assigned another employee, junior to Claimant, to work a total of 15 hours' overtime service. By letter of September 5, 1990, Claimant filed a claim for the hours worked. The claim was denied and subsequently progressed up to and including the highest carrier officer empowered to handle such matters.
This case is not a matter of first impression. In particular, Third Division Award 27090, involving the same parties, held:
Moreover, the Organization has not provided probative evidence to support its contention that the May 19, 1976 Supplemental Agreement supersedes Rule 55 in the instant case.
In light of the foregoing, the Board must deny the claim in its entirety.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant (s) not be made.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 30603. DOCKET MW-30257
(Referee Wesman)
The Majority erred when it found that this was not a case of first impression and erroneously applied Third Division Award 27090 as precedent in this case. This is true because the dispute decided in Third Division Award 27090 di Electric Traction Department of the Southern District and the Supplemental Agreement which was applicable in the instant dispute was not an issue in that case. Hence, the Board was correct to decide that dispute based on an interpretation of Rule 55. However, the instant dispute, in fact, wa and the Majority simply blew it.
On May 12, 19~7.6, the parties entered into a Supplemental Agreement, to become effective May 19, 1976, which contained certain specific rules applicable only specifically stipulates that it is to "... remain in effect until modified or changed in accordance with the provision (sic) of the Railway Labor Act, as amended." It should be noted that the Carrier never once so much as asserted t been modified or changed, nullified or superseded in any way. The portion of the Supplemental Agreement applicable to this dispute is quoted within the award and not repeated here. Labor Member's Concurrence and Dissent
It is a hornbook principle of contract interpretation that specific rules must prevail over general rules. When the parties adopted the Supplemental Agreement, said Agreement specifically addressed the assignment of overtime in the Electric Traction Department of the Southern District in clear and unambiguous terms. The Supplemental Agreement is quite clear that predetermined overtime work shall be confined to t disputed that the work involved in this dispute was predetermined overtime work in the Electric Traction Department of the Southern District. Faced with such a clear rule which addressed the situation here, the Majority should s been done with it.
The Majority's attempt to place some nebulous burden on the Organization to provide "... probative evidence to support its contention that the May 19, 1976 Supplemental Agreement supersedes Rule 55 in the instant case." is clearly improper and erroneous. It was the Carrier who was asserting that the clear language of the Supplemental Agreement did not apply. Hence, the burden should properly have been on the Carrier to offer some sort of "... probative evidence to support its conte 11 of course, such evidence was completely absent from the record in this case simply because no such evidence exists. Labor Member's Concurrence and Dissent Award 30603 Page Three