C Award No. 21
0 Docket No. 21
P
Y
SPECIAL BOARD OF ADJUSTTMNT NO. 166
BROTHERHOOD OF RAMVAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
versus
MISSOURI PACIFIC RAILROAD COMPANY
STAT'liE~,T OF CLAIi·I
: Claim of the System Committee of the Brotherhood -
1. That the Carrier's action in operation of its freight warehouse facility
at Kansas City, Missouri, seven days per week subsequent to the effective
date of Award No. 14. (April 11, 1957) of Special Board of Adjustment No.
166 is a violation of the Clerks' Agreement.
2. That employes engaged in such seven-day service who are required to work
on Sundays be paid the difference between time and one-half compensation
and the pro rata compensation paid for each such Sunday worked beginning
Sunday, April 1/a, 1957, and a pro rata day each week as an assigned work
day account Sunday not properly assignable as a work day of the employe's
work-week, claims to continue until the seven-day positions are discontinued.
FINDINGS
: The basis of the confronting claims as set out above is the alleged
violation of Rule 26(c), which reads as follows:
d(c)
Provisions existing prior to September 1, 1949 that punitive rates
will be paid for Sunday as such are eliminated. The elimination of such
provisions does not contemplate the reinstatement of work on Sunday which
can be dispensed with. On the other hand, a rigid adherence to the precise-pattern that may have been in effect immediately prior to September 1,
1949, with regard to the amount of Sunday work that may be necessary is
not required. C·?an:es in anount or nature of traffic or business and
seasonal fluctuations must be taken into account. This is not to be
taken to mean, however, that types of work which have not been needed
on Sundays will hereafter be assigned on Sunday. The intent is to recognize that the number of people on necessary Sunday work may change. -
When changes such as nature of traffic or service to be provided occur,
the General Chairman will be notified and following mutual agreement
with the Carrier, seven-day positions will be established even though
it may involve a point or location where Sunday work was not previously
needed.'
The parties hereto, on March 16, 1955, executed a Memorandum of Agreement
the subject matter of which concerned the establishment of 7-day positions at the
location with which we are here concerned. This Memorandum of Agreement contained
a provision which provided as follows-
?It is further understood that this Agreement is made for the purpose
named herein and may be cancelled by 30-day written notice of one party
to the other.'?
Award No. 21
Docket No. 21
The above quoted termination provision of the Memorandum of Agreement bearing date
of March 16, 1955, was the subject matter with which this Board concerned itself
in Award No. 14. In presenting the question to this Board in that dispute, the
Organization contended that a notice given by them had the effect of terminating
the aforesaid Memorandum of Agreement which permitted the establishment of 7-day
positions, while the respondent contended that the Agreement had not been so terminated. This Board found that the notice of termination was effective and that
the Agreement stood cancelled, and that the parties were then and there relegated
to their respective positions under the schedule rules that existed prior to
such Agreement. The confronting claims in that award (Award No. 14) were dismissed as being premature.
The confronting dispute concerns claims that have been filed since the
date of Award No. 14, that is April 11, 1957. In view of the fact that this
Board has previously found that the parties are presently governed by the provisions of Rule 26(c), it is now necessary that the scope and intended purpose
and application of this rule be examined.
The rule, with the exception-of the last sentence thereof, while not
absolutely clear and without ambiguity, has been subject to numerous decisions by
the Third Division of the National Railroad Adjustment Board. A preponderant
number of those awards have construed this Sunday work rule to permit the establishment of 7-day service with payment at the pro rata rate for Sunday work where
there is a showing of necessity and/or an operational requirement. We are of the
opinion that this portion of Rule 26(c) is clear to the extent that it was not
within the contemplation of the parties that the respondentfs method of operation
should be frozen as of September 1, 1949, the effective date of the 40-Hour Agreement. That this is true is evidenced by that portion of the rule which states:
a rigid adherence to the precise-pattern that may have been in
effect immediately prior to September 1, 1949, with regard to the
amount of Sunday work that may be necessary is not required. Changes
in amount or nature of traffic or business and seasonal fluctuations
must be taken into account . .
The rule further provides -
The intent is to recognize that the number of people on necessary
Sunday work may change
That the respondent was confronted with operational requirements and
made an adequate affirmative showing of necessity concerning the need for the
establishment of 7-day positions, together with the Organization Qs concurrence
with such existing conditions, is evidenced by the execution of the Memorandum of
Agreement bearing date of March 16, 1955.
That the present need for 7-day service exists is evidenced both by the
facts of record and by admissions by the parties hereto.
-2-
Award No. 21
Docket No. 21
The Organization contends that upon the cancellation of the aforesaid
Memorandum of Agreement, the respondent here was required to revert to the conditions that originally existed and, if Sunday work is needed, that the same is
to be compensated for at the punitive rate within the meaning of the rule, inasmuch as the last sentence of Rule 26(c), which reads as follows:
%r61hen-changes such as nature of traffic or service to be provided
occur, the General Chairman will be notified and following mutual
agreement with the Carrier, seven-day positions will be established
even though it may involve a point or location where Sunday work was
not previously needed.??
makes it incumbent upon the Carrier to secure the acquiescence of the Organization
at this time to a method whereby any work performance on Sunday may be compensated
at other than the punitive rate.
Award No. 14 of this Board found that the Agreement of March 16, 1955,
had been cancelled and that the parties should revert to their respective posi-,
tions under Rule 26(c). This, as any rule of a collective bargaining agreement,
must be considered in its entirety and from an overall viewpoint.
To sustain the position of the Organization herein would have the
effect of holding that the last sentence of Rule 26(c) gives to the Organization
unilateral right of decision as to whether or not 7-day service is to be instituted, irrespective of the existence of operational requirements or an affirmative
showing of necessity therefor. We do not think that this purpose was within the
contemplation of the parties when they included this addendum to Rule 26(c).
Rather, we think that in all cases it is incumbent upon the Carrier to make an
affirmative showing of the need and necessity for the creation of 7-day positions
and to confer with the Organization relative thereto, and that there exists a
mutual obligation upon the parties to arrive at an agreement relative thereto.
As previously stated, the parties here have mutually agreed that there
is a present need for 7-day service and we think that such service can properly
be continued.
For the reasons stated, we are of the opinion that the confronting claims
must, of necessity, be denied.
AWARD: Claim denied.
SPECIAL BOARD OF ADJUSTMENT N0. 166
/s/ Livineston Smith
Livingston Smith - Chairman
ta/ Ira F. Thomas
fsl
G. IV. Johnson
I. F. Thomas - Employe Member G. 11. Johnson - Carrier Member
I dissent.
St. Louis, Missouri
September 23, 1957 - 3 -