CARRIER'S STATEMENT OF FACTS: During the period here in question, Engineer Cothran was regularly assigned to Local Freight Trains 570 and 571, operating daily except Sunday between Lakeland, Florida, and High Springs, Florida, distance 140 miles in each direction. Prior to being relieved at Lakeland on December 23, 1947, he was duly notified that Trains 570, Lakeland to High Springs, December 24, 1947, and 571, High Springs to Lakeland, December 25, 1947, would be annulled for the one round trip. The claims listed in the above Subject of Dispute, which were filed as a result of the annulment, were declined. Article No. 5 of the Carrier's Agreement with its Engineers reads as follows: "BASIC DAY: (a) In all classes of service covered by Article No. 4, 100 miles or less, 8 hours or less, (straight-away or turn-around) shall constitute a day's work, miles in excess of 100 will be paid for at the mileage rates provided, according to class of engine or other power used. (b) In through freight or mixed train service, a straight-away run is a run from one terminal to another terminal, and not less than 100 miles will be allowed for each such run, except specified branch runs." Attached hereto as a part of this submission and identified as Exhibit "A" is a copy of Memorandum of Agreement executed June 17, 1939, with the General Chairmen representing Engineers, Firemen, Conductors and Trainmen on this property. Also attached hereto as a part of this submission and identified as Exhibit "B" is a copy of a letter dated September 18, 1940 to the General Chairmen representing Engineers, Firemen, Conductors and Trainmen on this property, confirming understanding reached in conference on that date concerning guarantees applicable to members of engine and train crews operating between Milan Yard (Fayetteville, N. C.) and Fort Junction, N. C. for the benefit of Government activities at Fort Bragg. POSITION OF CARRIER: As shown in the above Statement of Facts, Engineer Cothran was regularly assigned to Local Freight Trains 570 and 571, operating daily except Sunday between Lakeland, Florida and High Springs, Florida, when, pursuant to notice duly extended, his assignment was annulled for two days, December 24, and 25, 1947, for the Christmas holidays. As a matter of practice, in order to release as many employes as possible during the Christmas holidays, as well as other recognized holidays, the Carrier has, as far back as its records go, certainly for more than 40 years, annulled local freight, through freight and yard assignments on recognized holidays. During that time, a few claims of engine crews for payment on dates that local freight assignments were annulled were progressed to the highest officer designated to handle such disputes on the property, and all such claims have been consistently declined. They have been so declined for the reason that the Carrier's Agreement with its Engineers has never included a guarantee rule requiring payment to engineers on dates that any assignment may be annulled, either in road or yard service. The case herein at issue is, according to the Carrier's record, the first of its character to be appealed from decision on the property. In progressing the case, the Carrier understood the Committee's position to be based upon a combination of the provisions of Article No. 5, quoted hereinabove, and the provisions of the Memorandum of Agreement, executed June 17, 1939 (Exhibit "A"), in conjunction with the Bulletin, establishing the assignment, which has not been questioned and is not quoted here. An examination of the provisions of Article No. 5 will disclose no guarantee of any character whatever for payment for service on any date that an assignment may be annulled. The Carrier's Agreement with its Engineers does not include guarantees of any character whatever, either weekly or monthly. The Agreement does provide for minimum payments on days that service is performed, but contains no provision requiring payments on dates that assignments may be annulled. The Memorandum of Agreement executed June 17, 1939, with the General Chairmen of the four train service organizations was not adopted as a result of a request for guarantees on days that service may not be performed but, as outlined therein, it was adopted in order to meet varying requirements of the service, including irregular operations over certain portions of assignments with minimum payments to be made separately for such irregular operations as they became necessary for the protection of irregular traffic. This Agreement provides that in assigned freight service, where the assignment is set up for crews to definitely operate over certain territory, the full mileage of the definite regular assignment will be paid when, for any reason, the mileage of the assignment is not made on any date that the crew performs service on the assignment. It also provides for irregular service, usually side trips, "as and when necessary" with specific payments therefor. It further provides for the assignment of runs when it is known that a run will operate over approximately ely the same territory for as much as six days in a week. The reason for this latter provision is obvious in that it was desired to set up assignments, where possible to do so, in order that seniority might assert itself rather than protect the service from extra lists. As evidence that the Memorandum of Agreement executed June 17, 1939 was never intended to nor does it provide for guarantees to engineers on days that assignments may be annulled is the fact that such a guarantee rule was, by Conference Agreement, adopted on September 18, 1940, as set out in Exhibit "B". This Conference Agreement applies only to service between Milan Yard (Fayetteville, N. C.) and Fort Junction, N. C. and specifically sets out that the guarantee rule, as contained in Article 4(b) of the Conductors' and Trainmen's Agreements, will apply to members of the engine crews. Article 4(b) of the Conductors' and Trainmen's Agreements, insofar as it relates to local freight service, reads as follows: "GUARANTEES: Local Freight Service: Regularly assigned local freight crews will be paid for at least 100 miles for each calendar working day of the month, including legal holidays, excepting for days where the line is broken through an act of Providence." The Carrier's Agreement with its Engineers has never included any provision in anywise similar to the guarantee rule contained in the Agreements with the Conductors and Trainmen. It is, therefore, obvious that had the Memorandum of Agreement executed June 17, 1939 provided for guarantees to engineers on dates that their assignments may be annulled, such a provision would have been specifically set out therein, and, in addition, there would have been no necessity or reason, for that matter, for the Conference Agreement of September 18, 1940, which does provide for guarantees to engineers on specific assignments. The assignment held by Engineer Cothran during the period here in question provided for daily except Sunday operation between Lakeland and High Springs. The bulletin establishing the assignment simply advertised working conditions and contained no reference whatever to guarantees. The position of the Committee that an engineer is guaranteed payment for all days that an assignment may be bulletined to operate is in direct opposition to numerous decisions of your Board, with and without the assistance of Referees over a period of more than ten years. Outstanding among such decisions are those found in Awards Nos. 4065, 4345, 5339, 6399, 6400, 6788, ! : 7530, 7548, 11711, 11687, 12065 and 12332. The findings of your Board in all of these decisions plainly set out that bulletins do not constitute guarantees. The annulment of the assignment here in question during the Christmas holidays was in keeping with a practice that has been in effect on this property for more than 40 years. The provisions of Article No. 5 of the Carrier's Agreement with its Engineers, quoted hereinabove, do not provide for payment in any class of service on days that no service is performed. The Memorandum of Agreement executed June 17, 1939 with the General Chairmen of the four train service organizations, identified as Carrier's Exhibit "A", does not provide for payment to engineers on any day that service is not performed. The Conference Agreement of September 18, 1940, with the General Chairmen of the train service organizations does provide for guarantees to engineers on a given run on days when no service is performed and is evidence of the fact that the Memorandum of Agreement executed June 17, 1939 provides for no such guarantees. For these reasons, the claim shown in the above Subject of Dispute, which is not supported by any provision of agreement or understanding, should be declined. Data in support of the Carrier's position has been presented to the Employes' representative. Oral hearing is requested. (Exhibits not reproduced.) FINDINGS: The First Division of the National Railroad Adjustment Board, upon the whole record and all the evidence, finds that the parties herein are carrier and employe within the meaning of the Railway Labor Act, as amended, and that this Division has jurisdiction. Hearing was held. As pointed out this is a claim for pay for two days when the assigned run in question was annulled by the carrier. The assignment was for six days a week set up pursuant to the terms of paragraph 7 of Memorandum of Agreement of June 17, 1939. The substantial contention of the claimant is that an assignment under this provision amounts to a guarantee of six days in a week. The contention is without merit. The provision within itself contains no guarantee and no other provision of the agreement has been cited which contains a guarantee applicable to it. The rule is well established that in the absence of a guarantee a run of an assignment may in good faith be annulled without penalty. The good faith of the annulment here is not questioned. AWARD: Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: (Signed) J. M. MacLeod Dated at Chicago, Illinois, this 21st day of May, 1954. Award 16623 Docket 25468 NATIONAL RAILROAD ADJUSTMENT BOARD FIRST DIVISION 39 South La Salle Street, Chicago 3, Illinois PARTIES TO DISPUTE: BROTHERHOOD OF LOCOMOTIVE ENGINEERS ATLANTIC COAST LINE RAILROAD STATEMENT OF CLAIM: "Engineer C. A. Vining, Florence. Claim for 4th class rate account setting off 4 points between Wilmington and Florence, December 21, 1948, and all similar claims on subsequent dates. (A.C.L. Docket 215-1170)." EMPLOYES' EX PARTE STATEMENT OF FACTS: Engineer C. A. Vining, regularly assigned to through freight Train 227 between Wilmington, North Carolina, and Florence, South Carolina, a distance of 110 miles, was required on December 21, 1948 to set off cars at Chadbourn, N. C., Grist, N. C., Marion, S. C. and West Marion, S. C. POSITION OF EMPLOYES: Article 15 (d) of the Engineers' Agreement reads as follows: "Through freight trains that pick up or set off cars at four (4) or more points between terminals will be paid at local freight rates. This does not apply to picking up cars loaded with perishable freight, but does apply to melon trains." Engineer Vining complied with instructions and set off cars of dead freight or empties at four points, being paid by the Management for only third class rates, instead of being paid for fourth class service, as provided under Article 15 (d) under the four-point set off rule. It is the contention of the Committee that West Marion, South Carolina, is a distinct and separate stopping point from Marion, South Carolina, located approximately one and a half miles south of the station of Marion, which necessitated the same procedure to be followed in setting off cars as is followed at any other station or stopping point. West Marion was originally a stop for freight, passenger, express and mail trains. Due to the fact that West Marion was principally supported by a large lumber mill, after this lumber mill was discontinued, all regular work was discontinued at that point, except a few freight cars were way-billed to a siding at that point. At some time, it is the understanding of the Committee, station listing for West Marion was discontinued by the carrier and this siding was included in the Marion station listing. After this was done the carrier took the position that Marion and West Marion were one and the same station. It is the position of the employes that regardless of the fact [7] that West Marion was discontinued by the carrier as a station stop and listed as Marion, that it did not change the duties required of the employes to be performed, or the principles involved, as covered under the four-point set off and pick up rule heretofore mentioned. It is the position of the employes that Engineer Vining set off and picked up at four points and as provided under Article 15 (d) his claim and all similar claims on subsequent dates should be paid. The Committee affirmatively states that all matters referred to in the foregoing have been discussed with the carrier and made a part of the particular question in dispute. The Committee desires to waive oral hearing, provided such hearing is not requested by, or granted to the carrier. CARRIER'S STATEMENT OF FACTS: On December 21, 1948, Engineer C. A. Vining handled through freight train No. 227, Wilmington, N. С. to Florence, S. C., distance 110 miles, and while en route picked up and/or set off cars at three points, including Marion, S. C., where two cars were set off at the freight station and one car was picked up from an industrial track, all within yard limits. The claim that the pick-up and set-off at Marion constituted two points under the Conversion Rule was declined. Article 15 (d) of the Carrier's Agreement with its Engineers reads as follows: "(d) Through freight trains that pick up or set off cars at four points or more between terminals will be paid at local freight rates. This does not apply to picking up cars loaded with perishable freight, but does apply to melon trains." POSITION OF CARRIER: As shown in the above Statement of Facts, Engineer Vining, handling through freight train No. 227 from Wilmington, N. C. to Florence, S. C., set off and/or picked up cars at three points between terminals, including Marion, S. C. At Marion, two cars were set off at the freight station and one car was picked up from an industrial spur 1.45 miles south of the freight station. The industrial track in question, as well as other industrial tracks, both north and south of the freight station, are within yard limits. In progressing the case, the Carrier understood the Committee's position to be that the set-off at the freight station and the pickup from the industrial spur should, under the provisions of Article 15 (d), quoted hereinabove, be counted as two separate points. The question here involved is whether or not picking up and/or setting off at two locations within the same yard limits constitutes two points under the Conversion Rule in effect. The Carrier contends that it does not. The industrial spur from which the pick-up was made is located 1.45 miles south of the freight station in the vicinity of what was known years ago as West Marion. At that time, there was located at West Marion a lumber mill which ceased operation and was dismantled eight or ten years ago. Switch engine service has, from time to time during the past ten years, been established and discontinued with the concurrence of the Employes at which times yard or switching limits were also established by agreement. There was no switch engine assignment in effect at the time of the issue of the claim here involved, but at all times, when switch engine assignments were in effect, yard crews worked all industrial spurs, including the one here in question, as well as other industrial spurs, for a distance of approximately one mile north of the freight station. Since the establishment of the first switch engine assignment, together with yard limits, road crews working these industrial spurs when switch engine assignments were not in effect |