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isolated to a specific area, in order to be established, it must be shown conclusively that past practice, tradition and custom is coextensive with Carrier's system.
In the instant case and in light of the foregoing we feel that no further discussion on the merits or the applicability of other rules is necessary. The Agreement was not violated."
In Third Division Award 7784, Referee Lynch gives an excellent summary of the principles that apply to this case. In the dispute leading to Award 7784, the company had assigned the work of servicing car heaters to freight house clerks at Marion, Ohio for over 22 years. The railroad elected in 1954 to assign the work to car department employes. The clerks filed claim contending it had exclusive right to service the heaters at Marion because the company had established a practice of assigning the work to clerks "even prior to the first agreement with the Organization at this location." The union conceded that other employes perform similar work at other locations. In denying the union's claim, the referee reached the following conclusions:
“... We must conclude that despite the acknowledged fact that car heater service was performed at West Bound Yard, Marion, Ohio by Roster 'B' employes for 22 years,
this work is not assigned to them by specific reference
2) Organization has failed to prove that this work belongs
to its members to the exclusion of all other classes or
3) there is no definite knowledge or proof that claimants
have lost,' have been 'injured';
the Agreement here applicable is not a sectional, but
5) the evidence of record would indicate that prior to Award
of this Division, 7031 (Carter) covers the issue here
'... Where work may properly be assigned to two or
A denial Award is, therefore, indicated.”
The awards have established that, in the absence of a specific rule granting the work exclusively to a particular craft, the union must prove
with substantial evidence that the work has been traditionally assigned to the employes in that craft throughout the system. Since the rules have systemwide application, it is not sufficient to show merely that the work has been assigned to the employes at a specific location. Clearly, as Referee Carter and others have said, where work may properly be assigned to two or more crafts, an assignment to one does not have the effect of making it the exclusive work of that craft in the absence of plain language indicating such an intent.
There is no rule in the sheet metal workers contract, having system-wide application, that shows that the company and the union have agreed that roadway equipment repair work belongs exclusively to water service repairmen. The opposite is true. The work is assigned to maintenance of way employes as well. The union's claim is not valid.
C. THE CLAIMANTS SUFFERED NO LOSS
Even if the claim had been filed within the prescribed time limits and the union had proved a violation of the contract, the claim presented would not be valid. Without offering the slightest proof that any or all the claimants suffered loss, the union filed claim in behalf of every water service repairman on the repairmen's seniority roster for "the penalty rate, for each day worked by Michele Fusco." There is no penalty rule in the Sheet Metal Workers contract. In the absence of such a rule, the union must first prove that each of the claimants suffered loss; and second, prove the degree of their loss:
"... any employe allegedly injured must be specifically identified and it must be shown just how this employe's contractual rights have been invaded...." [Award 3-6391, Elkouri (Emphasis ours.)]
The company did not invade the rights of any of the claimants and none suffered loss in pay. Each was on duty and under pay while Mr. Fusco worked at the repair shop. Most, in fact, are not assigned to repair work at the twenty-sixth street shop and would not have worked at the shop in any circumstances. Of the twenty four claimants named, only eleven repair roadway equipment at the twenty-sixth street shop. The union may contend that some of the claimants would have been used at overtime if Michael Fusco had not worked. There is no basis for such a view. The work could have been carried over from day to day. Moreover, there is no evidence to show which of the claimants, if any, would have worked overtime or how much time they would have consumed. The assignment of Michael Fusco to the repair shop did not deprive any of the claimants of loss in pay.
The Second Division has often held that in the absence of a showing that the claimants suffered loss in pay, a money claim is not valid. Here are some of the more recent awards.
AWARD 3672 The union filed for "four hours” because the claimant was required to perform work outside his assignment. Referee Mitchell denied the claim because:
“The carrier raises several reasons why the claims should be denied. We will discuss only one of them, to wit, the claims for penalty pay are without agreement support.
The claimant was fully paid for the work he performed, he lost nothing. The employes have not cited any rule of the Agreement to support the claims for penalty pay. ...
The company changed the starting time of four employes and the union filed claim for overtime pay. The board held the company violated Rule 2(b) but denied claim for compensation. Referee Johnson held that in the absence of a penalty rule, no money was due because the union failed to show the claimants suffered loss in pay:
"No pecuniary loss or damage to Claimants is shown, and the Agreement does not provide for any arbitrary or penalty for this violation.
It is a well settled rule of statutory construction that a penalty is not to be readily implied, and that a person or corporation is not to be subjected to a penalty unless the words of a statute plainly impose it. Tiffany v. National Bank of Missouri, 85 U. S. 409; Keppel v. Tiffin Savings Bank, 197 U. S. 356.
The rule is equally applicable to the construction of contracts; for the parties can readily agree upon penalty provisions if they so intend, and the absence of such provisions negatives that intent.
The Supreme Court of the United States said in L. P. Stewart & Bro. v. Bowles, 322 U. S. 398, that to construe a statute as imposing a penalty where none is expressed would be to amend the Act and create a penalty by judicial action; that it would further necessitate judicial legislation to prescribe the nature and size of the penalty to be imposed.
Similarly, for this Board to construe an agreement as imposing a penalty where none is expressed, would be to amend the contract, first, by authorizing a penalty, and second, by deciding how severe it shall be. Not only are the parties in better position than the Board to decide those matters; they are the only ones entitled to decide them. Consequently there have been many awards refusing to impose penalties not provided in the agreements. Among them are Awards 1638, 2722 and 3672 of the Division; Awards 6758, 8251 and 15865 of the First Division; and 7212 and 8527 of the Third Division.”
The Boilermakers filed claim for "four hours' pay” because maintenance of way employes performed work allegedly belonging to them. Referee Johnson agreed the work belonged to the boilermakers but denied the money claim because the record did not show that the claimants suffered any loss:
“The work in question comes within Rule 50, the Boilermakers' Classification of Work rule. It does not constitute repairs, but modi. fications of machinery, which the manufacturer of the equipment has now adopted as standard. Claim 1 should therefore be sustained.
The record does not show that these claimants sustained pecuniary damage because of the violation. It shows that they worked full time on that day, and does not indicate that overtime would have been necessary or that the claimants would have been entitled to such overtime. Claim 2 should therefore be denied.”
The electrical workers claimed “one four hour call” because a supervisor performed work exclusive to electricians. Referee Johnson denied the claim because there was nothing in the record to show that, had the claimants been used, they would have received extra pay.
“... Each claimant worked and was paid for the day to which his part of the claim relates, so that he can have sustained no financial loss. There is no contention that the circumstances were such on any of the six occasions that an additional telephone maintainer would have been necessary if the supervisor had not performed the item of work claimed, and no claim is presented by such other telephone maintainer. The claims must be denied.
As the board has said in a number of cases, the union's claim must be denied. The claimants were on duty and under pay during the claim period. There is no showing that any would have been called to work at overtime. None of the claimants suffered loss.
V. SUMMARY AND CONCLUSION
The Railway Labor Act requires the division to give third party notice to the Brotherhood of Maintenance of Way Employes and Michael Fusco because they may be adversely affected by an award. In addition, as the courts have said, the board must read the sheet metal workers contract in light of the maintenance of way contract.
There is a time limit defect in this case. The union failed to present its claim within sixty days of the date of the occurrence on which it is based. As management has shown, the claim is not a continuing claim. As provided by article V of the August 21, 1954 agreement, it is barred.
Even if the claim had been presented within the time limit, it would not be valid. Management has shown that, contrary to what the union has argued, sheet metal workers have not repaired roadway equipment exclusively at the twenty-sixth street shop. Moreover, even if the work had been exclusive to sheet metal workers at this one point, the claim still would not be valid. As the Adjustment Board has said, to prove a violation of the classification of work rule, the union must show that the work is exclusive to sheet metal workers throughout the Illinois Central. As the union admits, this is impossible to prove. It concedes maintenance of way employes perform most of the roadway equipment repair work on the Illinois Central.
Even if the union had proved a violation of the sheet metal workers contract, the claim presented would not be valid. Each of the claimants were on
duty and under pay during the claim period. There is no evidence that, had
(Exhibits not reproduced.)
FINDINGS: The Second Division of the Adjustment Board, upon the
The carrier or carriers and the employe or employes involved in this
This Division of the Adjustment Board has jurisdiction over the dispute
Parties to said dispute waived right of appearance at hearing thereon.
In the consideration of this dispute, we find it averred by Carrier at the
Although Employes' claim does not specify what type of work was taken
While the record here would indicate that in recent years a considerable
Rule 57 of the applicable Agreement cited by Employes says nothing