FINDINGS.-The Third Dlviu:on of tire Adjushnent Board, upon tire whole record and all the evib·nce, finds that:
The cnrricr and the employe involved in this dispute ore respwetively carrier and employe within the meaning of the Railway Labor Act, as approved Jtn!c 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dislmfe involved herein.
The parties to said dispute were given due notice of hearing theremt.As a result of a deadlock, Willard E. Hotchkiss was called in as Referee, and oil request of the Carrier it second hearing was grad on :July- 9, 1036, in which representation of the parties argued the case before the Division with the Referee sitting as a member thereof.
There is in evidence an agreement between tile parties bearing effective date of July Ist, 1922, with Addendum thereto effective May 10th, 1924.
O A. Brandin employed originally as a clerk in the Houston Terminal, Southern Pacific Lines in Texas and Louisiana, entered serviee oil July 5, 1923. He was granted an indefinite leave of absence duly ;30, 19570, to serve as Secretary of the General Committee of the Ciork~ Organization on the lines of this carrier. The position of Claim Inspector, a position which Brandin at one time theretofore held in the Houston Freight station, was abolished December 5, 1931..
Brandin remained out of the railroad service until March 7, 1932. Shortly prior to that date he made known his intention to return to service and asked that he be permitted to exercise his seniority amt assume the duties of the position of the Inbound Tracing Clerk in the Houston Freight Office, the occupant of the position, Clerk Siegert, being junior to Idm. Brandin displaced Siegert on March 7, 1932, and performed service on the position for exactly three years thereafter before making claim, which is now the subject of this dispute, that he was filling the position of Claim Inspector. On March 7, 1935, Brandin filed claim with tire Agent for the rate which was paid to the Claim Inspector when that position existed prior to its abolishment December 5, 1931. Tire claim was denied its having no basis and because it had riot been presented within the time limit for presentation of such claim.
Twenty days subsequent to the filing of the claim, or on March 27, 1935, the position of Claim Inspector was reestablished.
POSITION OF PETITIONERS.-Petitioners claim that Brandin has performed the duttles of Claim Clerk during the whole time he has occupied the
position of Inbound Tracing Clerk. The3 elahn that the position of Claim Clerk was abolished in name but not in fact, and they rely primarily on the joint hearing held on April 76, 1935, in which Lhe Sullerilltclalent, the General Chairman, the Agent, the Chiel Clerk, and olbets participated. Petitioners conteial than the evidence brought out in the hearing corroborating common knowledge around the station, show, that the preponderance of Brandin's duties were those of Claim Clerk, and that he is therefore entitled without qualification to the rate of $4.90 per day for the n-hole period from March 7, 1932, to March 27, 1935, when tile position of Claim Clerk was ree_atabllshc<1 and Brandin assigned to it :It the $4.90 rate. The claim is based oil these alleged facts and oil Rules 51 and 04, which read its follows
POSITION OF CARRIER.-(,'airier denies jurisdiction of tile Board, (1), because the claim is a request to change the rate of pay of art established position and (2), because the claim is barred by Role 27. Section (a) of Rule 27 reads as follows:
On the merits of the case, Cart`,er submits that Rule f14 could not have been violated since no new position was created. The position of Inbound Tracing Clerk having been in existence and welt recognized long before tile position of Claim Clerk was discontinued lot December 5, 14031. Carrier maintains that the right to reduce force by abolishing unnecessary positions and distributing the work among outer ein;;le ecs is :ucoutestible. Carrier further silluui"s then business conditions on Dcceinher 5, 1951. anel prior and suleee(plent therrto, amply justified tile exercise of that right in tl,e manner ii- wldch it wo,; exercised. Cairhor points nut that the silence of cLuicant lroni lllarch 7, 193'=, when lie aceoplod the position of lnbouinl Tracing Clc:k at tile $4.80 rate, until March 7, 1936, even if the long delay should not be held to bar the bearing of tile clahu a:r Carrier maintains it sboulcl, Create, a strong presumption tlmt the classification and the rate were correct.
OPINION OF THE R6,F17RFEl.-A. As in juoadicdionn.-1. Tile question whether there is a request to ch_ng~ a rate of pay of :m ,stao!isbv(I position or a hrot^st :;g;einrt a misclasvificalion ;md a misnutin,-· of a posit' nil is the crux of, the tvhole case tend can only be deterinlited by Bearing the= case· on its uterus. To uphold the Carrier" cm:t;·ntion would bar nearly 111 cases in whlch violation oi liules 61 and 04 ore cB,trg,ci. ''hr Referee cannot believe that this (roiltention wns seriously advanced :;nil i; not disposed to hlizo it solously.
2. The applicaldlily of Rule 27 to this kind of a core was dee;ilt with in award No. 292, CI-238. Since the follies in the too cases tile the salve, it i:; unnecessary to repeat the line of aiguntent feolotved in that case. Tike c'rculltStunces of the two r;aes Oil this point <lre siofaf and the decision inust be the P;une.
Tile Referee holds that the Board ltm: the nigh' aril the cluty to hear and dec:do theca-co on its merits.
It. On i7:c boctio's o1' III(, Case;.-It is whilitted tbat the positiml of Cloinl I.isls·clor teas cliacolailtned on lk·centber ,'5, 19:$1. The Cariwr contends that pollec no r;··.v p·~Ilion was cre:ttod, there could ha ee bccn l:u \lcctatioll of Rule
64, and by the same token there was no violation of Rule 51 since the duties and the rate of the position of Inbound Tracing Clerk remained as they were except for sharing in the distribution of the duties of the discontinued position of Claim Clerk when poor business and lack of work made it necessary to abolish that position.
The Referee is chiefly concerned with ascertaining whether Brandin was properly classified and paid from March 7, 193=, to March 27, 193.1. What he did about his classification and pay during this period, what the organization did, and what the Carrier did, are, of course, important for the light they throw on the basic fact which is the propriety of his classification and pay. It is immaterial to the rights of an employee under the agreement whether failure to secure a proper classification and rating is shown, to have resulted, from an omission or oversight, a misapprehension of essential facts, or a wilful violation of the agreement. It is as much the duty of management to rate employees properly, as it is of the organization and any individual claimant to see that they are so rated. While the management, the organization, and the individual employee may be presumed to know the meaning of the rules and their application to the rating and pay ef positions under them, it is obvious that the duties of a position might change iron week to week or from month to month so that a rating that was correct at one time rnight by a gradual process of change become incorrect without anyone being especially at fault.
So in this case we are concerned not merely with the question whether Brandin was correctly or incorrectly rated on March 7, 1932, or March 26, 7935, but we are concerned with the correctness or incorrectness of his rating for the whole period for which the claim runs. If he was incorrectly rated and paid for the whole period, the loss he suffered should be made good. If lie was incorrectly rated for a part of- the period, the lesser loss suffered should likewise be made good. If he was not incorrectly rated at all, he suffered no loss and his claim must be denied.
Obviously, it is undesirable from every standpoint to throw down the bars and to go back into the distant past to dig up cases of incorrect rating. On the other hand, from the standpoint of the satisfactory operation of the agreement, it is clearly undesirable to have employees constantly demanding re-rating for fear that legitimate claims may become outlawed.
Under normal circumstances, three years would appear to lie an unduly long time to wait before raising a question of incorrect rating. However, business conditions were not normal during the period for which this claim runs and it would appear also that there was some abnormality in the conditions on this property. In all the circumstances the Referee believes that the letter, and even more of the spirit of the agreement will be served not only by taking jurisdiction of the case as has already been done, but by considering it on its merits in the light of such evidence as is available for the whole period for which It runs.
The Referee is of the opinion that the joint investigation of April 15, 1935, is the strongest evidence which the petitioners have brought forth in support of Brandin's claim. Also the Referee is aware that this investigation occurred just after the end of the period for which the claim runs and, therefore, the memory of man being what it is, the conclusiveness of the investigation cannot possibly be as great as applied to the earlier part of the period as it is for the later part.
There are then two questions to decide towit:1. Was Brandin regularly occupied for the major portion of his time with duties properly pertaining to the position of Claim Clerk?
2. If so, was he so occupied for the whole period for which the claim runs or for any substantial portion or portions of such period?
Reverting to question 1, the Referee is convinced that for some time prior to the joint investigation on April 15, 1935, Brandin was doing substantially the work of a Claim Clerk and was entitled to receive the pay therefor.
The answer to question 2 is less obvious. In view of general business conditions in 1934 and 1935 compared with the time when Brandin first accepted the position of Inbound Tracing Clerk, it is possible that for some time subsequent to March 7, 193-, the preponderance of his work was such as to justify the classification of Inbound Tracing Clerk, and that with the improvement of business he gradually came to do more and more of the work of a Claim Clerk. In the investigation of April 15, 1935, Superintendent Marshall asked Brandin
this question: "Has the number of outside inspections of CL and LCL freight been gradually increasing'?" Brandin's answer: "Yes, sir; that is my observation." At an earlier point in the investigation, Superintendent Marshall asked this question: "You previously stated that during your assignment as Inbound Tracing Clerk you did not perform the duties of Inbound Tracing Clerk, but such duties were instead performed by Clerk Zischang. Is that correct?" Brandin's answer: "I am sure that I did perform some small portion of the Inbound Tmehig Clerk's work in tire early part of 1932."
In spite of the fact that the Referee is less positive in respect to the earlier period than he is in respect to the, litter period, he Hods nothing in the record to justify cutting off the claim fit any particnler (Into between Alarch 7, 1932, and march 27, 1936. In the face of the evidence and in the absence of convincing evidence to the contrary, the Referee finds that the whole claim should be allowed.
A. Jurisdiction.-The National Railroad Adjustment Board has jurisdiction. '. Merits.-The claim is sustained.