NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Request of Guy L. Lee that the position of 'Night Watchman-Clerk', South Park Yard, Denver, be restored and that he be paid for all loss in wages."
STATEMENT OF FACTS.-The following statement of facts was jointly certified by the parties:
"Effective with the close of business Monday, April 10, 1933, position of `Night Watchman-Clerk', South Park Yard, Denver, was abolished. The following duties assigned to this position were taken over by the Burlington Refrigerator Express Company under their contract with The Colorado and Southern Railway, April 10, 1933:
POSITION OF EMPLOYEES.-The employees contend that the Carrier violated the agreement of July 1, 197A, between the parties, by abolishing the position in question and contracting with the Burlington Refrigerator Express Company to take over and perform the duties assigned to the position, thereby denying employees covered by the agreement the right to perform work enumerated in the "Joint Statement of Facts."
In support of their position, Rules 1, 2, 3 (a), 3 (b), 4 (a) and 70 are cited:"RTJLE 1. These rutes shall govern the hours of service and working conditions of the following employes of The Colorado & Southern Railway Company, subject to the exceptions noted in Rules 1, 4 and 8.
"(1) Clerks, Ticket Clerks, and Ticket Sellers, except those whose positions are included in the Telegrapbers' Agreement.
"(2) Other office and station employes-such as office boys, messengers, chore boys, train announcers, gatemen, baggage and parcel room employes, train and engine crew callers, operators of certain office or station appliances and devices, telephone switchboard operators, elevator operators, office, station and warehouse watchmen and janitors.
"(3) Laborers employed in and around stations, store houses, and warehouses.
"No=-lmis agreement shall not apply to individuals where amounts of less than Thirty ($30.00) Dollars per month are paid for special services which only takes a portion of their time from outside employment or business or to individuals performing personal service not a part of the duty of the carrier."
"Rurx, 2. Deilnition of Clerk.-Employes who regularly devote not less than four (4) hours per day to the writing and calculating incident to keeping records and accounts, writing and transcribing letters, bills, reports, and statements and similar work, and to the operation of mechanical office equipment and devices in connection with such duties and work shall be designated as clerks.
"(1) Employes engaged in assorting tickets, waybills, ete., nor to employes operating appliances or machines for perforating and addressing envelopes, numbering claims or other papers. adjusting dictaphone cylinders, and work of alike nature, nor to employes gathering and delivering mail or other similar work not requiring clerical ability.
"(2) Office boys, messengers, and chore boys or to other employes doing similar work.
"(a) Seniority begins at the time employe's pay starts on the seniority district and in the class to which assigned.
"(b) Where two or more employes enter upon their duties at the same hour on the same day, employing officer shall at that time designate respective rank of such employes."
"(a) Employes covered by these rules shall be in line for promotion. Promotion shall be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail, the management to be the judge, subject to appeal, except, however, that this provision shall not apply to the following excepted positions:
"NOTE.-The word sufficient is intended to more clearly establish the right of senior clerk or employe to bid in a Dew position or vacancy where two or more employes have adequate fitness and ability."
"Run-a 70. Duration, of Agreement.-This agreement shall be effective as of July 1, 1924, and shall continue in effect until it is changed, as provided herein or under the provisions of the Transportation Act, 1920. Should either of the parties to this agreement desire to revise or modify these rules, thirty (30) days written advance notice containing the proposed changes, shall be given and conference held on date mutually agreed upon.
POSITION OF CARRIER.-The Carrier contends the position was not abolished on account of the Burlington Refrigerator Express Company taking over the work in question, but on account of the falling off of narrow gauge team track work and general decrease in business, which made it necessary to reassign yard clerk's work in Denver Yard, thus making a reduction in yard clerk force.
OPINION OF BOARD.-The joint check of work performed and time allocated to the various duties of the position in question show that when it was abolished April 10, 1933, there was but very little time devoted to the work described in the joint, statement of facts. This check also shows that over 7 hours was allocated to duties which were discontinued entirely or re-assigned to other employees covered by the Agreement. Request for the restoration of position of Night Watchman-Clerk and that Mr. Lee be paid for loss of wages is not justified by the evidence.
The contracting to the Burlington Refrigerator Express Company of work formerly coming under the Agreement between the parties (in the instant case performed by Mr. Lee) constituted a violation of the Agreement, as decided by Award No. 300, Docket No. CL-334.
FINDINGS.-The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21,1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein;
That the request for restoration of position of Night Watchman-Clerk and tbnt Mr. Lee be paid for loss in wages is not justified by the evidence, and
That the removal of work from the Agreement between the parties by contracting it to the Burlington Refrigerator Express Company constituted a violation of the Agreement, as decided by Award No. 300, Docket No. CL-334.
Request of Guy L. Lee is denied, but for the reason stated in the last Finding, the work shall be restored to employes covered by the scope of the Agreement.