unassigned employe who is available", he being restricted as spelled out in the rule regarding service in excess of eight hours in a calendar day and 40 hours at straight time in his work week. Paragraph 3, because it treats and deals specifically with the situation involved in this claim, is quoted in full so that all may see that it is not limited by its terms to Class 1 and 2 positions but applies with equal force to Class 1, 2, and 3 positions and vacancies. "Rule 6-Bulletining Positions 3. New positions or vacancies of thirty (30) calendar days or less duration, shall be filled, whenever possible, by the senior qualified unassigned employe who is available and who has not performed eight (8) hours work on a calendar day; an unassigned employe will not be considered as being available to perform further work on vacancies after having performed five (5) days or forty (40) hours of work at the straight time rate in a work week beginning with Monday, except when such unassigned employe secures an assigned position under the provisions of Rule 6 or returns to the extra list from a position to which he was assigned, in which event he shall be compensated as provided for in Rule 31, Sections (d) and (e)." It is noted that the Referee underscored "whenever possible" as though that phrase had particular significance to him but did not elaborate thereon. However, in view of the entire Rule 6 and the specific language of paragraph 3 thereof, together with the fact that "Carrier does not dispute that Claimant was the Senior qualified unassigned employe at the time the vacancy occurred on August 26, 1962", it is obvious the Referee entirely misconstrued the plain provisions of the Rule which clearly sustained the Employes position. The Award is totally in error. The Referee apparently made no attempt to reconcile the various rules but chose, instead, to interpret one dealing specifically with the filling of vacancies of thirty (30) days or less duration as being inapplicable to Class 3 positions. The Referee should not have read such a restriction into the rule. The Award is clearly in error and creates a hopeless and irreconcilable conflict between the various rules of the Agreement. I therefore dissent. D. E. Watkins, Labor Member 7-27-65 CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT TO AWARD 13706, DOCKET CL-14139 (Referee Mesigh) With scholarly perception the Referee in this case has read the controlling Agreement as a whole, harmonized the pertinent provisions, and given effect to the clearly manifested intention of the parties. What the Claimant and the Dissenter sought to do here is obvious. They extracted a part of a sentence from an ordinary bulletin rule and sought to read it in isolation in order to expand on its manifest purpose, thereby imposing unintended and improper restrictions on management. To have sustained this claim, the Referee would have had to violate the very same elementary rules for the interpretation of contracts which the Dissenter now falsely accuses him of violating. The Dissenter asserts that the award is in error in ruling: (1) that Rule 6 (a) 1 is the only way to fill Class 3 Positions, and (2) Rule 6 (a) 3 is "permissive" rather than "mandatory" insofar as blanking a position is concerned. Since this claim must fall under the second ruling in any event, we will not dwell on the first ruling other than to note the obvious fact that in order for the Dissenter to arrive at the meaning which he attributes to Rule 6 (a) 1 he is compelled to add to that rule the words "vacancies of over thirty (30) days duration." These words, upon which the Dissenter places such great emphasis, do not appear in the rule and this Board cannot insert them (Awards 7296, 8219, 9198). Turning to the Dissenter's second and main point, Rule 6 (a) 3 certainly contains mandatory language pertaining to the procedure to be followed when a position is filled. But the issue in this case is whether this bulletin rule creates a mandatory guarantee that Carrier will not blank this laborer position. The simple question is, did this unassigned Claimant have an absolute guarantee under Bulletin Rule 6 (a) 3 that Carrier would not blank the laborer position when the regularly-assigned occupant of the position absented himself and his services were not required? The absurdity of the claim becomes apparent when we review the guarantee rules of the Agreement, for there we find that the regularly-assigned occupant himself had no guarantee whatever against Carrier blanking this position whenever business permitted. The minimum weekly guarantee rules (Rule 17-b and the note thereto) expressly except the hourly-rated laborer positions from all of the guarantees therein provided. Thus, if the regularlyassigned occupant of this position had been available but had been withheld from service on this date and his position blanked because of the absence of work, he would have had no possible claim for he was expressly excepted from the weekly guarantee provisions of the Agreement. Reading guarantees into bulletin rules would almost inevitably lead to gross inconsistencies, as is the case here. Since the regularly-assigned employe, by express exception in the Agreemnt, has no guarantee that his position will not be blanked on days that his services are not required, we would indeed have rare inconsistency in the Agreement if it prohibited the blanking of the position on days when the regular employe himself lays off and his services are not required. As sole support for the contention that such a guarantee exists in favor of the unassigned employe, Petitioner cites the bulletin rule. It is well established that such an ordinary bulletin rule is not a guarantee rule, and that absent some express provision in the Agreement to the contrary, Carrier may blank regularly bulletined positions. Awards 13175, 13161, 12686, 12358, 7256, 6889, 6142, 1633, 1412. The arguments advanced by the Dissenter are unsound when the Agreement is read as a whole, and such arguments have been consistently and repeatedly rejected by this Board. In denying that bulletin rules created a guarantee against blanking positions, we ruled in Award 12358 (Dorsey): "It is axiomatic that all prerogatives inherent in management, except to the extent circumscribed by law or contract, remain vested in a carrier. Absent either of such circumscriptions, the determination of its manpower requirements is within the sole judgment of Carrier. Here, we have only to consider whether Carrier's right to exercise its judgment, to fill or let stand vacant a position, is impaired by the Agreement. "Rules 56 and 57 of the Agreement, supra, establish procedures to which Carrier is required to adhere in bulletining new positions or vacancies. The sense of the Rules is that new positions or vacancies can be filled by Carrier only in compliance with the procedures agreed to therein. These Rules, neither literally or by implication, can be construed as * imposing an obligation on the Carrier to fill a vacancy. To construe the Rules as prayed for by Petitioner, 'we would have to read into/them/that which is not contained therein'-this would be beyond our power. Award No. 10888. Therefore, we will deny the claim." In addition to the clear intent of the Agreement which we have discussed, there is a public policy which deserves mention in this case. The objective of the claim is to impose an unreasonable penalty on efficient operation. It is not denied that cancellations by shippers had eliminated the need for many laborers. Carrier shows that if Claimant had been on duty there would have been no work for him to perform. Add to this the undenied fact that Claimant had been absent without leave from his previous assignment on the days immediately preceding, hence according to Carrier was not available, and it becomes apparent that the demand for a day's pay to Claimant is simply a demand that an unreasonable penalty be imposed on efficient operation. In prosecuting such a claim, or in seeking in any other way to so penalize Carrier for operating efficiently, the employes are overlooking their own obligation as well as that of Carrier under law and public policy to foster economical and efficient service. /s/ G. L. Naylor /s/ R. A. DeRossett R. A. DeRossett /s/ W. F. Euker W. F. Euker /s/ C. H. Manoogian /s/ W. M. Roberts W. M. Roberts Docket No. SG-13476 NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION (Supplemental) Herbert J. Mesigh, Referee PARTIES TO DISPUTE: BROTHERHOOD OF RAILROAD SIGNALMEN LOUISVILLE AND NASHVILLE RAILROAD COMPANY STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Louisville and Nashville Railroad Company that: (a) The Carrier violated the Signalmen's Agreement when it issued Bulletin No. 5, dated April 17, 1961, abolishing the Assistant Signal Maintainer's position at West Knoxville, Tennessee, effective April 27, 1961, and, on the same Bulletin, advertised a Helper's position to take the place of the Assistant Signal Maintainer's position. (b) The Carrier now be required to re-establish the Assistant Signal Maintainer's position at West Knoxville, Tennessee, and compensate C. E. McNeil for the difference in pay received as a Helper and that which he would have received as an Assistant Signal Maintainer from April 27, 1961, until the Assistant Signal Maintainer's position is re-established. [Carrier's File: G-374-5; G-374) EMPLOYES' STATEMENT OF FACTS: On April 17, 1961, the Carrier issued Bulletin No. 5 which abolished the Assistant Signal Maintainer's position at West Knoxville, Tennessee, effective April 27, 1961. Bulletin No. 5 also advertised a Signal Helper's position, with headquarters at West Knoxville. The successful applicant on the Signal Helper position replaced the Assistant Signal Maintainer as he works the same territory, hours, and has the same workweek as the Assistant Signal Maintainer did previously. The Helper is also assigned to work with the same Signal Maintainer as was the Assistant Signal Maintainer. Bulletin No. 5 is Brotherhood's Exhibit No. 1. On April 22, 1961, Local Chairman C. E. McNeil wrote Signal Supervisor J. R. Hatfield that the Carrier's action outlined in Bulletin No. 5 was a direct violation of the Signalmen's Agreement and asked that the Assistant Signal Maintainer's position be re-established. This letter is Brotherhood's Exhibit No. 2. On April 28, 1961, the Carrier issued Bulletin No. 7 which awarded the Signal Helper's position advertised in Bulletin No. 5 to C. E. McNeil, who held the Assistant Signal Maintainer's position before it was abolished. Bulletin No. 7 is Brotherhood's Exhibit No. 3. On May 1, 1961, Division Engineer J. W. Leinard wrote Local Chairman McNeil that his request to re-establish the Assistant Signal Maintainer's position was declined. On May 12, 1961, Local Chairman McNeil wrote Division Engineer Leinard that a claim was being initiated for the difference between the top rate Assistant's pay and a Helper's pay. He also advised the Division Engineer that his decision was being appealed. On May 12, 1961, Local Chairman McNeil appealed Division Engineer Leinard's decision to Mr. S. A. Brownlie, Superintendent K&A Division. Superintendent Brownlie advised Local Chairman McNeil on May 16, 1961, that the claim was denied. On May 17, 1961, Local Chairman McNeil wrote Superintendent Brownlie that his decision was not acceptable and would be appealed. On May 20, 1961, General Chairman J. T. Bass appealed Superintendent Brownlie's decision to Mr. P. P. Ash, Superintendent Communications and Signals. Mr. Ash denied the claim in a letter dated May 31, 1961, addressed to General Chairman Bass. Under date of June 2, 1961, General Chairman Bass appealed Mr. Ash's decision to Mr. W. S. Scholl, Director of Personnel. Mr. Scholl denied the claim in a letter dated July 10, 1961, addressed to General Chairman Bass. This dispute was handled in the usual and proper manner on the property, up to and including the highest officer of the Carrier designated to handle such disputes, without a satisfactory settlement having been reached. There is an agreement in effect between the parties to this dispute, bearing an effective date of February 16, 1949, as revised to October 1, 1950, as amended, which is by reference thereto made a part of the record in this dispute. POSITION OF EMPLOYES: It is the position of the Brotherhood that the Carrier violated the current Signalmen's Agreement when it abolished the Assistant Signal Maintainer's position at West Knoxville and replaced that position with a Signal Helper. Rule 30(a) of the agreement reads as follows: "The number of assistant signalmen and assistant signal maintainers on a seniority district shall be consistent with the requirement of the service and the apparatus to be installed and maintained." This rule makes it clear that the number of Assistant Signalmen and Assistant Signal Maintainers must be consistent with the requirements of the service and the apparatus to be installed and maintained. In Brotherhood's Exhibit No. 8, General Chairman Bass informed Superintendent Ash that after the West Knoxville Assistant Signal Maintainer's position was abolished, no Assistant Signalman's position remained on the |