NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: "Claim of the General Committee of The Order of Railroad Telegraphers on the Illinois Central System that:
"L. P. Kore regularly assigned to the position of Assistant Freight Agent at Paducah, Ky., was improperly removed from his position on or about August 18, 1937, and shall be restored to his regularly assigned position and retroactively compensated for any loss in wages he may have suffered by reason of having been improperly removed; and that all employees resultantly displaced by .reason of the improper removal of Kore from his position shall be restored to their regularly assigned positions and retroactively compensated to the date of their displacement for any loss in wages they may have suffered by reason of such improper displacement."
JOINT STATEMENT OF FACTS: The parties jointly certified the following Statement of Facts:
"An agreement bearing date August 16, 1931, as to rates of pay, and November 1, 1931, as to rules of working conditions, is in effect between the parties to the dispute.
"The position of assistant freight agent at Paducah, Kentucky, was covered by the said agreement, and L. P. Kore was filling the position when it was abolished by the carrier on August 18, 1937. The work done by the employe filling the position of assistant freight agent prior to August 18, 1937, has been performed by the freight agent subsequent to that date. The position of freight agent at Paducah is not covered by the schedule agreement referred to above."
POSITION OF EMPLOYES: "The position of assistant freight agent at Paducah is covered by the prevailing telegraphers' agreement, and has been so incorporated in the agreement for more than nine years, and at a monthly rate of $217.50 plus an increase of $12.17 per month, effective August 1, 1937.
"The position existed prior to August 18, 1937, and the duties and responsibilities of the position supervisory under the jurisdiction of the freight agent. The position of freight agent is not covered by telegraphers' agreement, and the incumbent is not under the said agreement.
"On August 18, 1937, the carrier by ex parte action declared the position of assistant freight agent abolished, removed the incumbent Kore from the position to which he was regularly assigned and permitted him to exercise displacement rights on another position covered by telegraphers' agreement on which an employe under the agreement was regularly assigned, and permitted resultant displacements among employes thereby affected.
"The carrier upon declaring the position of assistant freight agent abolished on August 18, 1937, moved the office of the freight agent from the
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and to place the station in charge of a Resident Agent or caretaker not covered by the Agreement. This Board has consistently held that such action was a violation of the Agreement.
In the instant case the position in question was that of Assistant Freight Agent. The duties of such position are just what the words imply-to assist the Agent. The Agent not being under the Agreement, an anonymous situation was created when the Assistant Agent was placed under the Agreement. It is therefore necessary to look to past practices to ascertain the intent of the parties.
As heretofore pointed out all stations of the carrier are not included in the Agreement. The Board cannot be charged with indulging in speculation when it assumes that the question of which stations shall be excluded is always a matter of controversy between the parties. It is only natural that this would be so, and based upon this experience and past practices of the parties, carrier must have known full well that when the position of Assistant Freight Agent at Paducah was created under the Agreement, it could not be abolished and the duties transferred to someone not covered by the Agreement, as long as the Agency at.Paducah is maintained. It should not be overlooked that the Agreement created a new position under the Agreement. Had the Agent at Paducah been included under the Agreement, there is no question that it would be a violation of the Agreement to abolish that position and transfer his duties to someone not covered by the Agreement. No one has contended here that the duties of the Agent at Paducah have been abolished.
The position of Assistant Freight Agent attached to the agency at Paducah. The position having been incorporated in the Agreement, became just as permanent as that of Agent would have become had it been incorporated therein and cannot be abolished as long as the agency is maintained, except as provided by Article 24, Rule 60 of the Agreement, or by mutual agreement of the parties.
This constitutes no hardship on the carrier in its effort to effect economies. It simply means that desired economies cannot be effected at the expense of the employe holding a position covered by the Agreement by transferring the work done by him to someone not under the Agreement.
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 employe involved in this dispute are respectively carrier and employe 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 action of the Carrier in the instant case contravened the terms of the existing agreement.