NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
'Claim of employees (a) that assignment of clerical work, hereinafter described in the Main and O'Fallmi Yards to employe not covered by the Clerics' Agreement (watchman Special Service Department) is a violation of Articles 1, 11, 111, and XI of the current Clerics' Agreement, and (b) that such clerical work shall be assigned to and performed by clerical forces holding seniority rights under Clerks' Agreement, and (c) that the senior furloughed Yard Clerk holding seniority rights to such clerical work shall be reimbursed for wage losses sustained retroactive to August 12, 1036 "
STATEMENT OF FACTS.-The Carrier maintains a Yard Office known as the Alain and O'Fallon Yards which is comprised of three separate switching districts known as O'Fallon Yards, Carr Sheet Yards and Florida Street Yards. These switching yards are comprised notinly of temp tracks serving industries and patrons of the Company.
The O'Fallon Street Yard has a capacity of approximately 160 cars; the Carr Street Yard has a calpacily of approximately 90 cars and the Florida Street Yard has a capacity of approximately la cars.
For the proper pet foriunnce of clerical work in cheeldng yards the carrier here invoh-ed maintained the following clerical positions:
The srvitching yards in which tliis work is performed are operated continually twenty-four hours a day. Cars are switched onto and out or these yards; cars are being placed on and taken off of industrial tracks and freight is received from and delivered to patrons of the Company throughout each twentyfour hour period. It is to be noted from the above listing of clerical positions that there is no regularly assigned yard cleric oil ditty from 6 p. m. to 11 p. m. During that time a special watchman, who has no rights trader the Clerks' Agreement perfornya certain yard clerk's duties.
POSITION OF E.kIPI,OYEs.-The employer contend that the carrier's action in having a watchman perform these yard cleric duties during the hours from 6 p. m. to 11 p. in. is in violation of the Clerics' Agreement. They cite Rule 1 which governs the hours of service quit working conditious of clerks, Rule 4, which defines clerical employer as employes who devote not less than four hours per day to writing and calculating, maldug reports, etc., Rule 8 concerning seniority rights of clerks under this Agreement, Rule 12 which provides that new positions or vacancies will be bulletined for clerical employees, Rule 66, which provides that established positions shall not be discontinued and new ones created for the purpose of evading the Rules of rates of pay, and Rule 68, which provides that employes suspended on account of reduction of force will be given preference in filling vacancies.
They contend that the work here in question is clearly within the subject matter of the Clerks' Agreement and therefore it is a violation of these Rules and the Agreement to assign this work to a watchman not within the Agreement. The watchman performs the following work;
POSITION OF CARRIER.=The carrier contends that there is no violation of the agreement.
It is pointed out that there is a yard clerk on duty from 8 a. m. to 6 p. m. who is in charge of the yard and who makes all records and prepares data and mails all notices to shippers, etc. It is also stressed that there is a clerk on duty from 7 a. m. to 3 p. m. who tallies truck loads taken from cars and checks all inbound ears arriving, etc., and that there is a clerk on duty from ll p. in. to 7 a. m. who tallies truck loads, etc. The carrier then states that the watchman tallies only truck loads taken from cars and checks inbound cars between 6 p. m. and 11 p- m. The claim is that there are only about six loads tallied from cars and four inbound loads received during this time. This the carrier argues is very little clerical work compared to the duties of the other yard clerks. It is stated that the one who works from 7 a, m. to 3 p. m. checks as an average 61 loads tallied from cars and 12 inbound cars received and the one on duty from 11 p. m. to 7 a. m. has six loads tallied from cars and 9 inbound cars received. These figures indicate that the balk of the work takes place between 7 a. m. and 6 p. in. and that were it not necessary to check the yard nightly the carrier would not maintain a clerk from 11 p. m. to 7 a. in.
The conclusion the carrier reaches is that the yard work between 6 p. m_ and 11 p. in. is so insignificant that they should be entitled to let a watchman do it.
OPINION OF TILE BOARD.-Rule 1 is the scope rule of the agreement. It covers many classes of employes who would not ordinarily be called clerks. Among those employes are messenger boys, train announcers, gatemen, and laborers employed in and around the station.
Rule 4, which is known as the "qualification" or "classification" rule, applies to clerks and by its terms does not apply to other employes within the purview of the Clerks' Agreement. This rule classifies and defines; it in no way limits the effect of the scope rule nor the effect of other provisions of the agreement.
The question before this Board, stated in simple terms, is whether work which is properly the subject of the Clerks' Agreement can be assigned to an employe not covered by the same.
For a detailed discussion of the principle involved see Docket CL-468, Award 458.
We conclude that the carrier has violated the rules in distributing work belonging to men included within the Clerks' Agreement to those without the same. We feel that the equity of the situation will be fully met if the parties determine through negotiation the actual extent of the violation and the amount of clerical work thor lc,s been taken frmn tho,e to whom it should be properly assigned under the Clerks' Agreement and given to employes not included within the Clerks' Agreement. Tile work to rvbiclr employes within the Clerks' Agreement are entitled should be restored to them. In our opinion, the work involved in this case is of such a nature as to come properly within the scope of the Clerks' Agreement. We, therefore, conclude that the claim of the employes must be sustained to the extent that it is found that work properly belonging
to tile Clerk's Agreement is being performed by- employes not within the scope of that Agreement.
FINDINGS.-The Third Division of the Adjustment Board, after giving the parties to ibis dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the carrier and 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; and
That the facts of record disclose a violation by the carrier of the operative agreement between the employes and the carrier.
The parties are directed to determine through negotiation the actual extent of the violation of the agreement, and thereafter to restore to an employe, or employes, within the Clerks' Agreement all work properly corning within the terms of the same. Compensation is not to be awarded unless it appears that the extent of the work to which employes coming within the terms of the Clerks' Agreement have been deprived during the period of violation was such as to make necessary the employment of an additional cleric at regular hours.
The Referee in his "opinion of the board" in the award in this docket states: "For a detailed discussion of the principle involved see Docket CL--4F,~Award No. 458". To the extent that our dissent to that award applies to such principle and to the award in this dispute dissent is here registered for the same reasons as stated in our dissent to Award No. 458.
The principle discussed in Award No. 458 included as a final conclusion the statement that the "carrier could not abolish the position in question without distributing the work to other employes within the agreement". However erratic and conflicting with former Opinion by this same Referee that principle is, as pointed out in our dissent to that award, it can have no influence as principle bearing open the instant case for by record admitted by employes and carrier alike the watchman who performed the small amount of clerical work during the period 6:00 p. m. to 71:60 p. In. of his night watchman's serrices had always done such work, and there never had existed a position at that location during that period corning under the clerks' agreement. The fallacy of resting a decision in this ease upon such premise is apparent to anyone having the least familiarity with the circumstances.