"Claim of the Ceneral Committee Of The Order of Railroad Telegraphers on the Great Northern Raihcay, that the mauagement of that company violated the Telegraphers' Agreement by arbitrarily removing the agent at Ballard, Washie;fon, from his regnlartv assigned position at that point in September 1931, and arbitrarily extending the jurisdiction and supervision of the agent at :icattle Dock, Washington, :: position not within the provisions of said agreement, over the position at Ballard; th::t the position of agent at Ballard shall be bulletined and filled from the Telegraphers' List and award the position to an employe subject to the terms of existing agreement between the parties and in the manner therein prescribed."
FINDINGS.fihe 'third Division of the Adjustment Board, upon the whole record and all the evidence. finds that
The carrier and the euoploye involved in this dispute are respectively carrier and employe within the meaning of the Itailomy Labor Act as approved June 21 19:34.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The parties to said dispute were given due notice of hearing thereon.As a result of a deadlock, Willard E. Hotchkiss was appointed Referee to sit with the Division as a member thereof.
An agreement bearing effective date August 1, 19'27, is in effect between the parties.
The parties have certified the following "Joint Statement of Facts";"Agreement between the Great Northern Railway Company and the Order of Railroad Telegraphers designated as Schedule No. 5, lists among tile positions covered thereby, position of 'AgenhTelegrapher, Ballard, rate 83 (!cuts per hour.' Schedule No. 5 became effective August 1st, 1927, and is still in effect. ]late of pay was revised by mutual agreement to 95 cents effective May 10th, 1930.
POSITION OF EIAIPLOYES.-The essence of this claim is that the agency at Ballard was abolished in name, but was not abolished in fact.
About 1914 the company rearranged its tracks so as to by-pass the former Ballard Station. A new passenger station was built on the new main line approximately one and one-half miles from the former station which was coutinned in operation with one agent serving both the old Ballard and the new Ballard without change in rate of pay or working conditions. This was the
condition when the Organization negotiated its first agreement with the Railway. The position of agent-telegrapher at Ballard was incorporated into that agreement which bore date of April 1, 1919.
The automobile anti passenger bus cut into the passenger business to such an extent that by 1931 practically no tickets were sold at the passenger station, and the agent, Ali. F. C. Griffin. scent only Gate enough at the passenger station to meet one train, spending the balance of his time each day at the freight depot where he maintained his office.
On September 22, 1931, the carrier closed the Ballard passenger agency and boarded up the windows of the passenger station. In addition, the company checked out the agent at Ballard freight station, F. C. Griffin, and turned over jurisdiction of the station to Mr, 11. I'. Chrirtensen, agent at Seattle Dock, a position not within the .scope of the Telegraphers' Agreement.
Petitioners maintain that tire freight dc;rot war.: not clo~cd in any detail but continued open for business exactly as it hoot been for many years, and that the action of the carrier had the effect of arbitrarily removing Air. Griffin as agent at Ballard and substituting Mr. Christensen in his place in violation of the agreement. Petitioners cite Article _10LX-(c) and Article YXXI of the agreement, to wit:
"Article XXX-C of current agreement schedule No. 5, Page 17, specifically exempts the positions not covorcd by our current agreement, and the agent's position fit Seattle Dock is listed as among those not covered by the agreement, as agreed to in the joint statement of facts attached thereto."
"'Status Re-Cla.ssifled Positions .-Should the position of an agent classified in this ,schedule as supervisory be chap_ed to a routine position, it will then be eliminated from the provisions of Article XXX-(c), and will revert to, and be governed by, the provisions of this schedule. Should the position of an agent governed by this schedule be made supervisory (as per Article XXX-(c), it will be eliminated from this schedule and be added to Article XXX-(e). Tranaofers o/ any position, op an agent to of from the provisions of Article XX X-(c) wilt be made only after conference and agreonncnt with employee' repre.srntatires."'
Petitioners cite that no notice of any kind was served oil them concerning the contemplated action, no conferences were conducted, and no agreement of any kind entered into; whereas, they submit that the agreement provides that changes of this kind "will be made only after conference and agreement with employes' representatives."
Petitioners submit that for some time after Mr. Griffin was checked out the company continued to carry separate accounts at Ballard and only discontinued to do so when petitioners presented their claim based on the contention that the agency at Bnllard had not been abolished in fact and requested the position to be bulletined and filled from the telegraphers' seniority list. Petitioners further (John that after the removal of part of the accounting work to Seattle Dock, tire Billiard depot remained open as jbefore and carried on a regular freight business as before. The petitioners say that they continued to press their claim to have the company bulletin the position, and cite as evidence of their claim that the agency was not abolished an excerpt of a letter from Mr. J. H. O'Neill bearing date of April 20, 193.3, to wit:
"I cannot agree wirlr your views in regard to these positions coming under the agreement of your Organization. The cashier at Ballard comes under the jurisdiction of the agent at GN Seattle Dock who is in. effect also tlee agent at Ballard."
Petitioners also cite a letter which Mr. O. P. Johnson, General Chairman of the O. R. T., wrote to Mr. J. C. Rankine, Assistant to Vice President of the Great Northern By., on July 12, 1935, in which this language is used:
"We (1o not question the right of the company to abolish positions, provided such positions are abolished in fact, but as in this case at Ballard it is our contention that the Ballard Agency has not been abolished but merely vacated so far as our craft is concerned and said position placed under the jurisdiction of an exclusive agent at Seattle Dock, a position not covered by the present agreement but specifically excluded from the terms of our agreement as stipulated in Article XXX-C."
On September 13, 1935, Mr. Rankme made reply to Mr. Johnson's letter, from which the above excerpt was quoted, as follows:
"Your letter of July 12th, in regard to position of agent at Ballard, Wash. "I cannot agree with your contention. The position of Agent at Ballard has been abolished in fact, accounts and pay rolls of Ballard having been consolidated o-ith That of Seattle Dock. I cannot comply with your request for reestablishment and rebulletining of the agency at Ballard, which posy Lion hat; not existed for over two ceors."
Petitioners mairfain that the statement in Mr. Rankine's letter that the position bad not existed for over two years is equivalent to au "admission that the agent's position existed until two years ago, (wring which time we were asking that. this position be bulletined to our craft on tile grounds that it had not been abolished."
Petitioners also submit (lAliibit F.-1) "Otlicial LiA of Officers, Agents, find Stations, No. 103, corrected to January 1, 1934," in which Ballard is listed as a separate freight agency position with lI. P. Christensen shown as agent at Ballard, station No. 1807, class of office, "freight station." This, they claim, comirms their position that the freight agency at Ballard has never been abolished.
Petitioners also cite photostat copy of bill-of-lading issued at Cashmere. Washington, signed by the agent under date of October 7, 1935, for one carton of apples shipped collect from Oliver Johnson to Oliver Johnson at Ballard, Washington, Ballard being an open freight station according to the tariffs on file at Cashmere. This bill-of-lading is Exhibit F 2.
Exhibit E-3 is a photostat copy of original receipt issued at Ballard covering this shipment, dated October 11, 1935, signed by H. P. Christensen, agent at Ballard, and stamped with the official seal of tire Great Northern Railway at Ballard. Petitioners submit that Ballard Station is under separate freight tariffs and that shipments may be made, and are being made, in and out of this station, both prepaid and collect, and both carload and L. C. L., exactly as at any other open freight station where the company maintains as agent.
Petititoners submit that the word abolished means "to do away with," or "to bring absolutely to an end." They say that if tile station had been abolished when Air. Griffin was checked out there would have been no reason to appoint Mr. Christensen as agent, since when a position is abolishcvl there is no position left to be filled by another employe.
Petitioners further analyze the duties of an agent and the particular conditions which constitute an agency.
Petitioner's submit their current agreement schedule #5 which shows 'Ballard, Agent=Telegrapher," rate &3¢ per hour, which rate, they say, has been change(] by mutual agreement to 95¢ per hour. They submit that the agreement now in force was to be effective until August 1, 1928, and thereafter until thirty days' notice in writing shall have been given by either party asking for a change. No such notice has been given.
Finally, they contend that so long as the carrier maintains an open station at Ballard and business is being transacted there, the management has no right to remove this position from the terms of the contract.
The petitioners then cite tire Scope Rule, Article I, of the agreement is allowing that "agents" is one of the positions over which the Order of Railroad Telegraphers has jurisdiction. They further submit that agents have always performed this class of work and that Air. Christensen'., position is a supervisory position not covered by the agreement or any other agreement.
Petitioners cite Award No. 3 of this division, bearing date Of January 2119"5, in which the division ordered the Rock Island to bulletin a position at East AInline, Illinois, which had been vacated but not abolished.
POSITION OF TILE CARRIER.-The carrier gives a history of the Ballard Station before and after Ballard ryas incorporated in the City of Seattle, and refers to the absenec of passenger and decline of freight business as tile reason for abolishing the agency.
'file carrier points out that Mr. Griffin, incumbent of the position, has esercisel his seniority and has since been employed as agent or telegrapher at various points. The carrier further submits that no complaint in regard to its action was beard until the spring of 1933 when a dispute concerning another sub-freight station in downtown Seattle arose, at which time complaint was filed by the ORT in reference to Ballard. The carrier points out that the, other complaint bars been dropped and that the management assumed tire Ballard
rmttter was closed since they heard nothing further in response to their clc<·lination to reinstate the Ballard agency on November 7, 1933, until the present year (1'913.;) when the matter was again presented with the request for a joint sulnuission to this Board.
The carrier does not agree that as long as any force of any kind is maintained at Ballard freight house to contract the public fit the handling of railroad business that such transaction., constitute a separate agency.
The carrier contends that the agency has actually and in fact totally disappemtd. The carrier also ,submits that one employe who performs this service at Ballard, classified its an assistant casbie·r Seattle Dock, has occupied the same po.4tiorr and performed the same duties lm now l;orforms for some twelve or fifteen years, and that he now functions under juriwfction of the ag<·nt at Seattle Dock just as he did formerly under jurisdiction of the :tgenttelegrapher at Ballard.
The carrier lurther submits that there is no agency tit Ballard, no accounting station, no Ballard accounts of any kind as a separate reporting division, and that Ballard is a portion of the territory reported through Seattle Dock Agency, ,just Its are dozens of stations on the Railway where an agency sit one time existed. It is also pointed out that there are stations where an agency is maintained only at certain seasons.
Carrier submits that the provisions of the Great Northern manual pertaining to the handling of business to mid from non-agency stations are being complied with !it handling all such business at Ballard.
Carrier's Exhibit C-2 includes copies- of typical waybills covering freight forwarded from Ballard, and notes that in all such cases the original point of shipment at Ballard indicates that Ballard station 8044 was billed through agency tit Seattle Dock, Station 8510. Carrier explains that the inclusion of the name of tire originating non-agency station is necessitated not for accounting purposes but for statistical data, which is maintained separately for each location, regardless of whether it be an agency or a "star" station.
Carrier further points out that, Exhibit 0-3, copies of typical waybills covering freight received at Ballard in most cases do not even mention Ballard as the destination. Carrier further submits that the identity of details of shipments which might be credited to the Ballard station in completely lost since they are merely items making up the Scuttle Dock Agency business.
Carrier infers that petitioners base their claim on the fact that an employe was actually doing business with the public tit Ballard, and says tbat this position means an absolute, inhibition against dealing with the public at any specific location without the inauguration of an agent's position thereat, and then observes, "such a claim is so far reaching, and is so extremely 1e, conflict with existing conditions and practices, both on this railroad and throughout the country, as to appear absurd."
In reference to Decision #3, Docket TE24, the carrier submits that the agency involved in this case had not been abolished in any degree, and submits that the very details of the station at East Moline were handled in exactly the opposite manner at Ballard. The carrier Then continues, "the agency was abolished by bulletin notice, and the incumbent exercised .seniority; the records of Aullard agency were closed out and all agency authority vested in an adjoining agency; Ballard as mr a_eney station ceased to exist. 'there is no agency at Ballard for an 'ngenit-telegrapher' to fill; there are no telegraph or tolepliouo facilities for him to operate; them are no lrainv for him to Ferve; there are no passengers to whom ho sell ttekets; tlrw-e i,s nothing Lot a .mall :adustrhrl area in which certain patrons are served by a switch engine and one subordinate station employs:' The utrrier's position concludes will) the following paragraph:
"In conclusion, the carrier deAroa to ask just what particular action is necessary properly to abolish an agency. if they have fnilPd to do lo at Bollard. The carrier does not need and does not want an ngorrcy tliPYP. anrI tile award
·n lie Board's dcei-ion No. R. Docket TE-2-1, recofinizorl the r'^ht of a carrier to elect Pith01' to continue or discontinue an agency. In tire prpaPnt case, the carrier has aflempted to 111scontupw, an agency in the htmre rnannf'r' that aveiaa' positions and n,ency accounts have been discontinued for pears. If that method is improner or inadequate, this carrier prays that the Board may indicate h, what action the carrier bas failed or what action taken is In error, for their future guidance in this and similar cases."
On January 14, 71330, petitioners submitted a statement in which they analyze and answer arguments advanced by the carrier. Petitioners submit that they have carefully reviewed the position of the carrier and fail to find any claim that the language of Article XXXI reading: "Transfers of any position of rut agent to or from the provisions of Article XXX-(c) will be made only after conference and agreement with employes' representatives," teas complied with.
Petitioners then cite from the Great Northern manual of instructions now in effect, Rules 280 and 281, in reference to non-agency stations, to wit:
"Rri,n 280. A non-agency station is a station e0ccre there is no freight agccpt-All freight except Government freight covered by Government bill of boding billed to Such stations must be prepaid.
"RULE 2.91. bhipmept.s to n.on-agency] .Oations-Under no circumstances will agent accept freight for shipment to a Station without a freight agent, when consigned 'Order, Notify'.
"Agents must not accept shipments on `straight' bills of lading for nonagency stations when emtsigned to one party `Advise' another party and requiring surrender of 'Delivery Order'.
"'Straight' Shipments originating on this line. except when covered by Government bill of ]ailing, must be fully prepaid."
Petitioners point out that some of the carrier's waybills, copies of which were shown, do not make any reference that such shipments are destined to Ballard as they are billed to "Seattle, `Vaqhington," and contend that this does not prove anything in reference to the dispute.
Petitioners then reiterate original contention in reference to shipments of carload and L. C. L. freight collect to Ballard, which could not be done under the rules unless there were a freight agent at Ballard. and they cite particularly the shipment of a carton of apples made by O. P. Johnson, collect, from Ca.slunere to Ballard, they also point out that the Cashmere Agent's records showed a freight agency at Ballard with 13. P. Christensen as agent.
Pe·ithmers maintain further that the manner In which the carrier does its accounting in respect to Ballard revmtue does not change the Status of Ballard as an open freight agency, and in this connection they point out licit when Mr. Griffin was agent at Ballard lie did not personally (lo the accounting for the revenues, but that this work was done by his subordinate employes just as it is now being done by the subordinate emploces of Mr. Chrbfensen.
petitioners also reiterate their contention that the existence of n freight agency at Ballard in acknowledged over the official Seal or the carrier, and the moue of the present agent, If. 1'. Christensen, is officially signed as Agent ;it l1afard, which fact is confirmed by the carrier's official list of A-:eats as' shown in petitioner's Exhibit E-1.
AS to the significance of the action of the carrier in handling some of its acemutting at 'Seattle Dock, the petitioner asserts that a change in the accountIng system was made at some of the larger freight agencies some time ago, and flout the change in respect to Ballard is merely a part of this unproved practice.
As to the carrier's contention that the business handled into and out of a "star" station or non-agency station is handled exactly as they are handling it at Ballard, the petitioners again cite Rule 280 in which this language occurs: "A non-agency station is a station where there is no freight agent."
Petitioners cite carrier's Exhibit C-3 covering a carload of 5=8 sacks of cement with freight charges of $40.13 to be collected by the agent at Ballard. They point out if Ballard had been a non-agency station it would have been necessary to have sent this shipment prepaid.
Petitioners further submit that there has never been a difference of opinion between the petitioners and the carrier as to what constitutes a dosed station except in this case. Petitioners take issue with the statement of the carrier flint it has attempted to discontinue an agency, and submit that the facts are that neither the agency nor the agent has been discontinued since the station is open for business exactly as it always has been. Petitioners also take exception to the Statement that carrier has attempted to close Ballard station in the same manner as agency positions and agency accounts have been discontinued for years. Petitioners say, "We (to not and cannot concur in any such statement."
Petitioners then cite several cases in which stations were closed and in which no agents were listed thereafter. They say nothing like this Situation lots ever existed at any other station which has been closed.
Petitioners submit that it is Immaterial whether the agent performs telegraph or telephone work, and cite Article 1I-B of Telegraphers' current Schedule .#5, which provides that, "When an agent-telegrapher's position is made an exclusive agency, the agent-telegrapher's rights thereto shall be the same as to his original position."
The petitioners submit that Ballard is a very important station, that the business there is highly competitive, and that it is necessary for the station to be kept open in order that the carrier nuty get its share of the business. They submit that if the Ballard station had been unimportant the rate would not have been increased from 83¢ to 95G per hour in 1930, and point out that this action was taken after the express business had been removed and after the passenger business disappeared.
Petitioners take exception to the statement of the carrier that petitioners do not base any ehdnt upon the fact that the Seattle Dock Agency is an exempted position, and cite correspondence between the parties to indicate that this point is covered in their complaint. They also point to the fact that the joint statement of facts proves this contention.
Cortain other points were emphasized in the report of the oral statement, but they were sufficiently covered in other parts of the record.
CARRIER'S REBUTTAL STATEMENT.--Carrier calls attention to a letter of former agent, E. C. Griffin, dated July 17, 1933, as quoted by the employes, and observes: "It is rather significant that he reports himself as performing various services which are anything else but an agent's exclusive prerogatives." After listing a number of items, the carrier continues: "all such work unless associated with an agent's responsibility, is recognized by, negotiated for, and claimed as their own by the Brotherhood of hAlway Clerks." The carrier tnakos the point that the Ballard agency had a subordhrate who performed the clerical services when -Mr. Griffin was agent, anti then raises this question; "Because cars are sealed and cheeked, because yard checks are made, because cars are loaded and unloaded, must an unnecessary agency be maintained so that an agent, perforce, may be privileged to perform services which can accrue to him only because of such agency authorization:"'
The carrier then reasserts its contention that the agency at Ballard has been abolished, and points out that there have been no additions or subtractions from the list of stations (hiring the Lust five or six years. Carrier says there are literally dozens of stations on the Great Northern now closed in which the business is handled through other agencies. The carrier reiterates, in spite of the petitioners' contention that the application of Rules XXX and XXXI to this case was specifically disowned by- the employes in conference, and says that the carrier joined in a submission of the case to the Board upon repreeontation that the question involved was whether or not an agency now existed at Ballard. The carrier snys, "If there is in fact an qg,ll(,y at Ballard, then such position undoubtedly comes within the classification of a scheduled posttion; if there is not in fact an agency at Ballord. then the claimants' argument fall,, and neither Article XXX or XXXI have any bearing upon flip, matter."
The carrier maintains that the amount of, business handled, nor the manner of handling it, has any bearing on the question of whether there is an agency or not, unless and until there is an coon and individual station account set up
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ONXION OF THE BEFLREE.-In sucgesting that each side is naturally anxious lest the agreenrcat be stretched unduly to its detriment, tire carrier shows a reasonable attitude. The carrier's request that, Sn case of it ruling adverse to its contention, the Board designate what further aetion must be taken in order to abolish the Ballard Agency, is also reasonable. It would not be eas^, however, to comply with this request without, by implication at least, setting up principles which could be cited in future cases. Tire Board has no power to prevent the citation of its decisions or its arguments whenever litigants think it a(h'antageorts to cite thein.
Petitioners ask the Ponrd to rule that the agency at Ballard has not been aboli.she(l in foci and to order that the position be bulletined and filled under the terms of the agreement.
'Pile Referee funds the argument of petitioners extreme when they cite a defiidtiou of the word "abolish" which nmkes it mean, "to bring absolutely to an earl." While dictionary deflations, are useful, words are riot used in a vacuturr, but as a part of the context in which they are found. There is no rule of the agreement to prevent the carrier from kewping stations open and placm_- employees at points on its line where no agency exists. The carrier call take any measure it deenis wise in order to accommodate the public or to stimulate business, provided it lives up to its agreement in so doing.
Petitioners assert that Ballard 1s air important station transacting a large amount of business. Tire carrier asserts that there is no passenger business and that the freight business consists primarily of switching. Both parties are in agreement that there in work to be done at Ballard which is of considerable importance to the carrier. If, lunvever, this work is not of sufficient importance to justify maintaining an agency, there is nothing in the agreement to prevent the carrier from maintaining employees at this station provided no attempt is made to transact business on any other basis than the basis err which it is rightfully transacted at other stations at which no agency exists.
The previous agent tit Ballard, Air. Griffin, has exercised his seniority rights to obtain employment under tire agreercient elsewhere. It appears, therefore, that no personal claims are involved in this case.
The Referee has considered the several cases cited in reference to abolition of agencies. There is no question concerning the right of the carrier to abolish an agency and to transact the business previously done by the agency in question, through another agency. However, tire right to abolish cannot be invoked to take an agency out of the agreement merely by putting it under the jurisdiction of an agent who is not covered by the agreement. In other words, the abolition inust be an abolition in fact and not increly in name. The carrier was in error in omitting to consult with representatives of the employees before taking the action it did in reference to the Mallard agency. The record does not reveal any cirounishance which would exempt this action from tire requirements of Article XXXI, which the Referee considers applicable.
Aside from failure to consult, the Referee finds that the action of the carrier was in violation of the agreement insofar as it attempted to take the agency at Ballard out from under the scope of tire agreement without making all of the changes which would have been necessary in order actually to abolish the agency. The record shows that for sonic time after tire alleged abolition of the agency, the accounts were kept at Bullard just as they had been prior to the alleged abolition. The carrier says that this was a regrettable oversight which was corrected as soon as its attention was called to it. But the record also shows that other rules applicable to abolished agencies have not been enforced in
respect to the agency at Ballard, and that carload and LCL freight business has been done from this station in a manner in which the rules of the carrier do not permit such business to be done from a station at which no agency exists.
The one statement in Mr. O'Niel's letter of April 20, 1935, that the agent at Seattle Dock "is in effect the agent at Ballard" taken by itself does not necessarily prove the continuance of the agency. It is, however, corroborative of other circumstances which indicate clearly that the carrier was thinking of Ballard as a place at which an agency was in existence. The parties are not in agreement as to the significance of certain operating records cited as exhibits. It is not essential to reconcile all the detailed contentions in respect to these papers. Taken with all the other circumstances of the case, including the fact that the bulletin of September 19, 7931, made no reference to the freight agency and that the carrier proceeded to turn the agency over to Christensen, these papers Jndicate strongly that the agency continued. The whole record convinces the Referee that it still continues in effect.
As to further action required to accomplish the abolition of the Ballard agency, the carrier needs only to apply the rules which rightfully apply to other nonagency stations, more particularly rules 280 and 281. Also, if the carrier desires to abolish the agency at Ballard it must cease to advertise Christensen or anyone else as agent at Ballard. The carrier need not discontinue stationing employees at Ballard its may be needed to accommodate the public, provided these employees do not transact business which the agreement and the carrier's rules require to he transacted by an agent.
The Referee does not deem it essential to go into greater detail as to rules which may or may not be pertinent to file question whether an agency does or does not exist. Ile assumes that in future conferences each party will give as much consideration to the legitimate interests of the other as observance of tile rules permit and he is convinced that with the ruling herein made the parties can dispose of the issue.
B. The carrier may elect whether it wishes to abolish the Agency or not to abolish it.
C. If the Carrier wishes to cover the Ballard station under the provisions of Article XXX-(c) it shall confer and agree with official representatives of the ORT as provided in Article XXXI.
D. If the Carrier elects not to abolish the agency at Ballard the position shall be bulletined within thirty (30) days after date of this Award.
By Order of Third Division: