BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO INDIANAPOLIS & LOUISVILLE RAILWAY
COMPANY
(Holman D. Pettibone, Trustee)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that carrier violated and continues to violate its agreement with the Brotherhood: (1) When on September 1, 1939, it removed the clerical position from the freight station at Frankfort, Ind., placing same in the Joint Freight and Passenger Station at that location and concurrent therewith assigned the position to intermittent service, and (2) When after abolishing the position for a few days, effective November 5, 1939, the Carrier restored the position effective November 10 1939, bulletining and assigning same to intermittent service, and (3) That the employes affected by such violation of the agreement be allowed 3 hours overtime at Punitive rate of pay for each day worked, retroactive to September 1, 1939."
EMPLOYES' STATEMENT OF FACTS: "Prior to August 1, 1939, the Carrier maintained in the Freiat Station at Frankfort, Indiana, two (2) clerical positions, rated and classified by agreement with this Brotherhood. Said positions were in existence on the effective date of adoption of the general working agreement governing hours of service, working conditions and rate of pay of the class of employes represented by this Brotherhood, said date being March 30, 1935, and said agreement being made effective as of April 16, 1935.
"Effective August 1, 1939, one of above mentioned clerical positions was abolished under Bulletin No. 33 (Brotherhood's Exhibit No. 1) and the remaining duties assigned to remaining clerk.
"Effective September 1, 1939, the Freight Station Office was combined with the Passenger Station office thus creating a joint station and the Freight Station clerk was assigned intermittent hours, without conference with our committee, as follows: (Letter of assignment is attached hereto and made a part of this record as Brotherhood's Exhibit No. 2).
"Effective November 5, 1939, (as evidenced by Bulletin No. 42 dated November 6, 1939, Brotherhood's exhibit No. 3) the remaining clerical position was nominally discontinued and without conference with our committee.
This rule was not violated. A properly classified position was not discontinued and a new one created for the purpose of reducing the rate of pay or evading the application of the rules. The position was abolished on November 4th with the intention that it would never be restored, but as already shown herein it was necessary to set up a new position on November 11th. The new position did not cover the same duties as the former one, it was an intermingling of the new duties and some duties that were on the former position. The rate of pay was not reduced. In National Railroad Adjustment BoardThird Division, Award No. 100, it is said 'The right of the Carrier to abolish a position, or positions, is confirmed and its right to establish intermittent service at any point, under the provisions of Rule 48 is also confirmed, provided service is not performed by other employes during the intervals of release of those assigned under Rule 48-Intermittent Service: The Carrier abolished the position on November 4th in accordance with its rights under the agreement. The Carrier established intermittent service on September 1, 1939 and again on November 11, 1939, and during the intervals of release of the occupant of the position the service was not performed by other employes. The Carrier notes in Third Division Award No. 302 that the Referee stresses several points wherein the particular Carrier failed to comply with certain provisions of its working agreement. However, in the instant case the Carrier has shown that it has complied with all the requirements of the agreement in effect on this property, and with the Railway Labor Act, as evidenced by Exhibits Nos. 1 to 11.
"The Organization refers to Awards Nos. 202 and 203 (Exhibit 8) in substantiation of the claim. Conditions in the instant case are dissimilar from conditions in the Awards inasmuch as it is stated in the Awards 'that during periods of release, such work as required immediate attention was taken care of by other employes and work not requiring immediate attention was held over until return of employe.' In the General Chairman's letter of February 9th (Exhibit 9), it is stated in the second paragraph thereof that the Organization withdrew its contention that 'during the hours of release of this employe, the class of work to which he is assigned is performed by other employes.' The Organization then says 'during the hours of release of this employe, we are in position to prove that he has his regular work to perform if he were permitted to perform it.' The Carrier contends that the work to be performed by this employe was the work covered by the assignment of the position, and that such assignment definitely provided for certain work to be performed at certain times, as for instance the meeting of passenger trains, the selling of tickets and making Pullman reservations, and that this work could not be performed at any times other than the times specified in the assignment.
"All matters herein referred to in support of the Carrier's position have been the subject of correspondence or discussion with the Employes' Committee and its duly accredited representatives."
OPINION OF BOARD: This dispute involves only the propriety of assigning the clerk to intermittent service.
Based on the record in this case, the Board finds assignment of this position to intermittent service was contrary to the provisions of Rule 34 (b) and claim for compensation should be sustained. 1196-a 447
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; and
That the assignment to intermittent service was contrary to the provisions of Rule 34 (b) and claim for compensation will be sustained.