C:\AWARDS\OUT\PLB119-1.htm

BEFORE AWARD NO. 1

PUBLIC LAW BOARD NO. 119 (Case No. 1)

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES and THE DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY STATEMENT OF CLAIM: 1. Carrier violated the provisions of the effective Clerks' Agreement when it used Judy Atkins to fill the position of Steno-Clerk in the Superintendent's Office at Toledo, (Lang Yard), Ohio and failed and refused to place her name on the Clerks' Seniority Roster, and failed to pay her the rate of pay established for that position. (a) Carrier shall be required to place the name of Judy Atkins on the Seniority Roster - Clerical, Office and Store house Employes, with a seniority date of July 12, 1965, and she shall be given all benefits rightfully due her under the provisions of the rules Agreement in effect between the parties. (b) Carrier shall be required to pay Judy Atkins the difference in the rate of pay between what she received and the established rate of pay for the position of Steno-Clerk in the Superintendent's Office at Toledo (Lang Yard , Ohio, commencing July 12, 1965 and for each and every day,,there after until the violation is corrected. 2. Carrier further violated the provisions of the effective Clerks' Agreement when it arbitrarily and capriciously dismissed Judy Atkins from its service on December 10, 1965 without the benefit of an investi gation and hearing. (a) Carrier shall be required to pay Judy Atkins a day's pay at the pro rata rate of the position of Steno-Clerk in the Superintendent's Office at Toledo (Lang Yard), Ohio, adjusted to include all subsequent general wage increases, for December 13, 1965 and for each and every day thereafter i Monday through Friday, that she is withheld from Carrier service. BEFORE AWARD NO. 1 PUBLIC LAW BOARD NO. 119 (Case No. 1) BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES and THE DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY STATEMENT OF CLAIM: 1. Carrier violated the provisions of the effective Clerks' Agreement when it used Judy Atkins to fill the position of Steno-Clerk in the Superintendent's office at Toledo, (Lang Yard), Ohio and failed and refused to place her name on the Clerks' Seniority Roster, and failed to pay her the rate of pay established for that position. (a) Carrier shall be required to place the name of Judy Atkins on the Seniority Roster - Clerical, Office and Store house Employes, with a seniority date of July 12, 1965, and she shall be given all benefits rightfully due her under the provisions of the rules Agreement in effect between the parties. (b) Carrier shall be required to pay Judy Atkins the difference in the rate of pay between what she received and the established rate of pay for the position of Steno-Clerk in the Superintendent's office at Toledo (Lang Yard , Ohio, commencing July 12, 1965 and for each and every day,.there after until the violation is corrected. 2. Carrier further violated the provisions of the effective Clerks' Agreement when it arbitrarily and capriciously dismissed Judy Atkins from its service on December 10, 1965 without the benefit of an investi gation and hearing. (a) Carrier shall be required to pay Judy Atkins a day's pay at the pro rata rate of the position of Steno-Clerk in the Superintendent's Office at Toledo (Lang Yard), Ohio, adjusted to include all subsequent general wage increases, for December 13, 1965 and for each and every day thereafter Monday through Friday, that she is withheld from Carrier service. . PLO I I q Award No. 1 Page 3 (Case No. 1) In its Submission Carrier states that it "does not deny that the work performed by Miss Atkins was work formerly performed by clerical employes represented by the Organization and falling within the scope of the contract between the parties to this dispute." Further, Carrier stipulated that the position worked by Claimant is fully covered by the Agreement. II. THE DISPUTE Under date of September 12, 1965, Clerks wrote to Carrier's Superintendent: "We submit this claim in behalf of Clerk Judy Atkins, for the difference in the rate of pay of the Stenographer and the rate of pay of which she has been receiving since being employed by this carrier. Miss Atkins having been an employe of this carrier since July 12, 1965, more than sixty days should be assigned to the Stenographer position of which has yet to be assigned to someone. We propose that this employe be given her seniority from the first day she was hired and that she be given all the benefits rightfully due her as an employe such as; the insurance Benefits, the days worked will be counted towards her vacations etc." Under date of December 15, 1965 - after Claimant's services were terminated - Clerks filed another claim with the Superintendent: "On Friday, December 10, 1965, Clerk Judy Atkins, was advised by you that at the end of her tour of duty she was dismissed from the service of the carrier as her services were no longer required. We must inform you that this is in violation of the Rules of the Agreement which provide that when an employe has been in the service for 60 days they cannot be dismissed without a hearing. Therefore: we file claim in behalf of Clerk Judy Atkins, for Monday, Dec. 13th, and each every day that she is kept out of service, at the rate of the Steno., position of which she held." Award No. 1 Page 4 (Case No. 1) Carrier's highest officer denied the December 10, 1965 claim, supra, for the given reasons: "Miss Atkins is employed by the Kelly Girl Service, and has been working at Toledo because of contract arrangements made with that concern. Miss Atkins has never been, at any time, an employe of the Detroit and Toledo Shore Line Railroad Company, and a submission of a claim in her behalf is improper and lacking in support of schedule rules and/or agreements. We find no provisions in any of the agreements in effect on this Carrier and your organization which would give any support of the contention as set forth in your November 1, 1965 letter, and on this basis the claim submitted is declined." He denied the December 15, 1965 claim, supra, for the given reasons: "As stated in my letter of December 10, 1965, Miss Atkins was employed by the Kelly Girl Service and was working on the Shore Line because of contract arrangements made with that concern, and has never been at any time, an employe of the Detroit and Toledo Shore Line Railroad Company. Miss Atkins not being an employe of the railroad company is not subject to the rules governing such employes. When the need for the Kelly Girl Services ceased to exist this concern was notified to this effect, and Miss Atkins then reported to their offices for further assignment. On the above basis we find the instant claim to be without support and same is herewith declined." By agreement of the parties the two claims have been combined in the Statement of Claim submitted to the Board. III. THE ISSUES Whether Claimant was an "employee" within that term as defined in Title I, Section 1, Fifth, of the Railway Labor Act; and PL C3 I IG Award No. 1 Page 5 (Case No. 1) Whether Claimant came within the ambit of the term "employes" in Rule 1 (a)--the Scope Rule--of the Memorandum of Agreement executed by the parties on August 5, 1964; and, Whether Claimant was and is entitled to the wages and seniority rights (including investigation and hearing as an indispensable condition precedent to dismissal after 60 or more days service) and other emoluments and conditions of employment prescribed in said Agreement. IV. PERTINENT STATUTORY PROVISIONS The following definitions found in Title I of the Railway Labor Act is pertinent: "Section 1. Fifth. The term "employee" as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission now in effect ...." ,~ x "Section 2. First. It shall be the duty of all carriers, their officers, agents and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions ...." V. PERTINENT RULE SCHEDULE AGREEMENT Rule 1 of the Memorandum of Agreement, under the caption Scope and Work of Employes Affected, provides in material part: "(a) These rules shall govern the hours of service and working conditions of all employes engaged in the work of the craft or class of clerical, office, station and store house employes as such craft or class is, or may be, defined by the National Mediation Board and, except as specifically provided herein, all such work of said craft or class, at any place it occurs on Carrier's lines or offices, shall be performed exclusively by employes subject to the scope of this Agreement, regardless of time devoted to its performance. Positions or work referred to in or coming within the scope of this Agreement belong to the employes covered thereby and no work or position shall be removed from the application of these rules except by agreement between the parties signatory hereto; ...." Award No. 1 Page 6 (Case No. 1) VI.RESOLUTION OF ISSUES Carrier admits that the position filled by Claimant is fully covered by the Agreement and the work of that position is exclusively reserved to employes within the collective bargaining unit. The sole defense proffered by Carrier is that Claimant was the employe of an independent contractor; not its employe. From this premise it argues that Claimant was not covered by the Agreement. Clerks assert that since the position filled by Claimant is fully covered by the Agreement and the work performed by her in that position is exclusively reserved to employes covered by the Agreement she, res ipsa _lo~qc ~ui~tor~, was an employe of Carrier in the collective bargain g unit wit~ hin tSe contemplation of Rule 1 (a) and contractually entitled to the guarantees of the collective bargaining agreement. 1. The Statutory Provisions 'Inasmuch as Carrier admits that Claimant at all times performed the work of the position under its sole direction - - not that of Kelly - - we find Claimant was Carrier's employee within the definition of that term in Title I, Section 1, Fifth, of the Railway Labor Act. We find that Title I, Section 2, First, imposes a statutory duty upon Carrier and employes to maintain the collective bargaining agreement. Any scheme,with or without intent, to evade or avoid the Congressional mandate must be held to be nugatory. The collective bargaining representative - - Clerks here - - have a statutory duty to police the collective bargaining agreement. No individual within the collective bargaining unit may to his individual satisfaction, lawfully, compromise the terms of the collective bargaining agreement. 2. The Rules Agreement Carrier has admitted that it contracted that the work performed by Claimant "shall be performed _e~xcl~us~iv~el by employes subject to the scope of this agreement." /Emphasis p ed_7 Further, it contracted, Rule 1 (a), supra, that: " ....Positions or work referred to in or coming within the scope of this Agreement belong to the employes covered thereby and no work or osition shall be removed from the application o t ese rues except y agreement of t e parties signatory hereto ...." / Emphasis supplied. PLQ .I I9 Award No. 1 Page 7 (Case No. 1) This provision is unambiguous and unequivocal. Pointedly, Carrier contracted not to remove any position or work covered by the Agreement from the rules of the Agreement "except by agreement of the parties." It is a principle of contract construction that when an exception is prescribed in an agreement no other can be implied. Here Carrier admits it acted without satisfying the expressed exception. Ergo, Carrier violated the Agreement. Clerks admit that Carrier had the right, when no qualified employe(s) bid on the position here involved, to seek in the marketplace a person qualified to fill the position. It disavows any interest as to how the person that meets the Carrier's requirements is selected. But, it says when the Carrier, under such circumstances, places a person on a position, covered by the scope rule, doing work exclusively reserved to employes within the collective bargaining unit of the collective bargaining agreement, the person selected and so assigned by Carrier becomes, de facto, an employe within the contemplation of Rule 1 (a) of the Schedu'~e Agreement. We agree. Therefore, we find that Claimant was an employe within the meaning of the term "employes" in Rule 1 (a) of the Memorandum of Agreement; and, she stood in the position of all other employes covered by the collective bargained agreement. VII. THE REMEDY Having found that Claimant was an employe within the contemplation of Rule 1 (a) of the Agreement we will: 1. Sustain paragraph 1 (a) .of, the.Stategtent of Cldim_;. , - except the seniority-.date: ah31~:b.;.--3:3.; =b96:;-:.-' "--'=-~`~ instead of July 12.,::-1.9G..,2ts=~t;ed-Yi=~t-~? - _ -::"`- ,__. graph; *_: .,"~-. _. -- . ~`-' 2. Sustain paragraph 1 (b) of the Statement of Claim to the extent that Carrier shall pay Claimant the amount of pay she would have received from Carrier as a covered employe less the amount of pay she received from Kelly during the period July 13, 1965 to December 10, 1965, inclusive; 3. Sustain paragraph 2 (a) of the Statement of Claim to the following extent: (a) Carrier shall offer to reinstate Claimant to its service to the status she would enjoy absent Carrier's violation of the Agreement; (b) Carrier shall make Claimant whole by paying to her what she would have earned from Carrier in the period from December 13, 1965, to the date Carrier offers her reinstatement less what she actually earned during that period. Award No. 1 Page 8 (Case No. 1) FINDINGS: Public Law Board No: 119, upon the whole record and all the evidence, finds and holds: 1. That Carrier and Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934; 2. That this Board has jurisdiction over the dispute involved herein; and, 3. That Carrier violated the Agreement. AWARD Claim sustained with Remedy as prescribed in opinion. ORDER Carrier is hereby ordered to make effective Award No. 1, supra, made by Public Law Board No. 119, on or before ~x6hn H. Dorsey, Chairman Neutral Member D. vane, Carrier em er C. E. Kie , 'Imp lo e Mem er Dated at Chicago, Illinois, this z7 day o 1968. BEFORE ANARD NO. 1 PUBLIC LAW BOARD NO. 119 (Case No. 1) BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES and THE DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY INTERPRETATION N0. 1 JURISDICTION: The Agreement between the parties, dated November 14, 1967, provides, inter alia: "(10) . . In case a dispute arises involving the interpretation of an award, the hoard, upon request of either party, will convene and interpret the award in the light of the dispute." Under date of April 19, 1968, Carrier petitioned the Board to reconvene for the purpose of interpretation of its Awards 1, 2, 4 and 6. A copy of the petition is attached hereto and made part hereof. The Board was convened and the parties were afforded full opportunity to argue their"respective positions relative to the questions presented. Questions 1, 4, and 5 set forth in the petition, it was stipulated at the hearing, are in issue relative to A41ARD NO. 1 (Case No. 1). INTERPRETATIONS: A. Question 1 The question: "Is the Carrier liable for damages during period Claimant was able to work and declined to do so?" Answer: NO. INTERPRETATION NO. 1 M;ARD NO. 1 (Case No. 1) Page 2 B. Question 4 The question: "Does the carrier have the right to request the claimants to furnish the carrier with a statement of earnings received during the period covered by the claim. Can the carrier require the claimants to furnish to the carrier proof that the employes have made an attempt during the claim period to find employment, if they were left without employment, in an effort to mitigate the damages?" Discussion: The Award, paragraph 3(b) of VII. The Remedy, provides that: "Carrier shall make Claimant whole by paying. to her what she would have earned from Carrier in the period from December 13, 1965, to the date Carrier offers her reinstatement less what she actually earned during that period." This is a statement of the make whole principle judicially established in labor law. To apply it the Carrier has need of the information listed in the question presented, which information is peculiarly within Claimants ken. Carrier cannot comply until it is furnished with the requested information. It is to be noted that this Board has no power to enforce compliance with its Award. See, Section 3. First (p) of the Railway Labor Act. Nor does it lave the power to require Claimant to supply the information. Answer: YES. C. Question 5 The question: "Does the carrier have the right to use earnings from sources other than the Detroit and Toledo Shore Line Railroad to determine the amount of compensation due to the claimants?" Discussion: Here, again, the make whole principle is applicable. Carrier has the right to deduct from the total amount of wages Claimant would have earned had she remained in Carrier's employ, absent the violation, her earnings from outside employment. 3ut, this is qualified. Outside earnings which she earned and which she could have earned had she remained in Carrier's employ are not deductible. Answer: As setforth in Discussion, supra. pL6 llq INTERPRETATION NO. 1 AWARD NO. 1 (Case No. 1) Page 3 ,, ~ t .~l ~a,1 lJohn &. Dorsey, Chairman Neutral Member D. G. Vane, Carrier Member C. E. Kief, Employe member Dated at Chicago, Illinois, this / 'day of ~~ , 1968: