NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY
COMPANY
STATEMENT OF CLAIM: (1) Claim of the System Committee of the Brotherhood that Carrier violated the rules of the Clerks' Agreement when on May 6, 1938, it abolished the position of Freight Clerk, Visalia, California, and assigned the duties of said position to an apprentice operator who is not covered by the Clerks' Agreement; and,
(2) Claim that all employes involved in or affected by said violation of rules shall be fully compensated for monetary losses sustained as result thereof for the period from May 6, 193,8, to August 22, 1938.
EMPLOYES' STATEMENT OF FACTS: Prior to May 6, 1938, the station force at Visalia consisted of the following:
Position of Agent and Operator-Cashier are covered by Carrier's agreement with the Order of Railroad Telegraphers. Position of Freight Clerk is covered by Carrier's agreement with the Brotherhood of Railway Clerks. Position of Apprentice Operator was not covered by any collective agreement.
The principal and preponderating duties and responsibilities which covered and controlled the classification and rate of pay of position of Freight Clerk consisted of the following:
clerical work, the position obviously to be in Class 3 and to be filled as provided in the following that was agreed to between the parties in the application of the above identified Memorandum of Agreement of July 27, 1933:
At the conference referred to, the representative of the Brotherhood informed the representative of the Carrier that the proposal of the Carrier to apply the provisions of the Agreement was not acceptable.
No employe of the Carrier has been shown to have suffered a monetary loss. The Carrier will compensate an employe who can be shown to have been entitled to a position that should have been established effective May 7, 1938 under the applicable rules of the Agreement effective December 1, 1929 and for whom a monetary loss can be proven.
The claim is neither for the establishment of any position of clerical worker nor for the re-establishment of the position of Freight Clerk, but for reimbursement of monetary losses alleged to have been sustained by unidentified parties in unnamed amount. It is not claimed that the employe displaced from the Freight Clerk's position abolished effective May 7, 1938 sustained any monetary loss.
The claim is confined to the period May 7, 1938 to August 22, 1938. There was established at Visalia on August 16, 1938 a position of Freight Clerk.
POSITION OF CARRIER: The claim for monetary loss should be dismissed, in the light of the fact that the employes have rejected the Carrier's offer to comply with the applicable terms of the Agreement on the basis that there should have been established May 7, 1938, effective upon the abolishment of the Freight Clerk's position, a proper position under the terms of the Agreement, and an employe eligible therefor placed thereon, which is all that the provisions of the Agreement between the parties require. Moreover, because the employes have both declined and failed to name any party having rights under the Agreement to an appropriate position and, also, have failed to show that any employe having rights under the Agreement has sustained a monetary loss by reason of the Carrier's admitted failure to comply with the applicable rules of the Agreement, no valid Award calling for the payment of money can issue unless the employes for whose benefit it is made are specifically named. See Award 906. Any Award that issues should require that a claim for monetary payment must, in order to be enforced, show that the names of the parties for whom claim is filed were made known to the Carrier prior to the filing of the claim with the Board.
The Carrier has not been served with nor permitted to see a copy of the Employes' submission, consequently it is not informed with respect to the alleged facts, contentions or allegations which the Employes' ex parts submission may contain. The Carrier, therefore, has dealt only with those contentions and allegations presented to it by the Employes and such other matters as in its considered judgment are pertinent to the dispute. The Carrier, however, reserves the right to present evidence in rebuttal of any allegations, facts, or contentions that may be made by the Employes in their ex parts submission or to any other submission which the Employes may make to your honorable Board in this case.
OPINION OF BOARD: The parties agree that in all essential respects the question presented by this case is identical with that disclosed by Docket No. CL-2387, decided by Award No. 2569. On the authority of that award the petitioner is entitled to prevail. 2571-s 483
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