NEW YORK CENTRAL RAILROAD COMPANY
(Line West of Buffalo)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on New York Central Railroad, Line West of Buffalo:
1. That the Carrier violated the terms of the Telegraphers' Agreement, when on November 15, 1944, it arbitrarily removed the position and all of the work of the position of agent-telephoner at Walkerton, Indiana, from the New York Central Telegraphers' Agreement and from the employes under said agreement and transferred the position and all of the work thereof to the Baltimore & Ohio Railroad Company for operation by its employes;
2. That the position and all of the work of the position of agenttelephoner at Walkerton, Indiana, shall be restored to the Telegraphers' Agreement with the defendant Carrier and bulletined and filled in accordance with the rules of its Agreement with its Telegraphers; and
3. That the senior extra employe or employes entitled to perform the work of this position who have suffered or shall suffer a loss in wages and commissions as a result of being thus deprived of this work by this improper action of the Carrier since November 15, 1944, and until the vacancy on the position is regularly filled, shall be reimbursed in full for the wage and commissions loss suffered thereby.
EMPLOYES' STATEMENT OF FACTS: An agreement bearing date February 1, 1943, as to rules of working conditions, and December 27, 1943, as to rates of pay, is in effect between the parties to this dispute.
The position of agent at Walkerton, Ind.,-the position here in disputeis located on the Kankakee sub-division of the western division, and is covered by the aforesaid Telegraphers' Agreement, and has been so covered continuously since July 1, 1912.
Effective May 1, 1928, by means of a contract between the New York Central Railroad Company and the Baltimore & Ohio Railroad Company to which the telegraphers' committee was not a party or consulted, the agent position at Walkerton, Ind., was made a joint agent for the Baltimore & Ohio Railroad Company under te management, control and operation of the New York Central Railroad Company. In the execution of this bi-party contract between the carriers no change was negotiated by the New York Central
OPINION OF BOARD: The record shows that on May 1, 1928, the New York Central Railroad Company negotiated a contract with the Baltimore and Ohio Railroad, whereby the two carriers agreed to consolidate station facilities and forces at Walkerton, Indiana. As a result of this contract, three trick operators, employes of the New York Central were replaced by the same number of operators from the Baltimore and Ohio. The agent's position was given to the New York Central agent, and he became the joint agent of the two carriers and was carried on the New York Central pay roll until his death, which occurred November 11, 1944, at which time the agent's position became vacant and on November 15, 1944, this position was given to a Baltimore and Ohio employe. The contract made provision for the retention of the New York Central agent, under certain circumstances, with the understanding that upon termination of the employment, the agent's position should be allocated to the Baltimore and Ohio. This required the Baltimore and Ohio to discontinue one agent's position May 6, 1928. The pro rata share of expenses between the two carriers incident to the consolidation is 70% for the Baltimore and Ohio and 30% for the New York Central. The employes do not question the right of the two carriers to consolidate their facilities to bring about economy, but assert that they are not parties to the contract, were not consulted with reference to it and had no knowledge of its contents insofar as the contract would affect the rights of the employes, until the death of the New York Central agent and the taking over of the agent's position by the Baltimore and Ohio; that 30% of the work still belongs to the New York Central employes under the contract of the two carriers. Had the four positions belonging to the New York Central been removed May 1, 1928, the contract would have been violated; to remove the agent's position at this time constitutes a violation. The agent's position at Walkerton, Indiana, was originally located on the Chicago, Indiana and Southern ailroad and was incorporated into the Telegraphers' Agreement with that carrier effective July 1, 1912, which railroad was consolidated with the New York Central Railroad Company on April 29, 1914; at this time the force of employes was as heretofore stated and remained so until May 1, 1928. The New York Central Agreement, effective May 1, 1926, shows at Walkerton, an agent's position and three trick telegraphers' positions. The Telegrapers' Agreement with the New York Central, effective May 16, 1928, sixteen days subsequent to the contract of consolidation of May 1, 1928 listed only the agent's position at Walkerton and the hourly rate of pay for that position. There appears in the record wage sheets, which the Carrier states were presented by the employes. The matter of wages was taken up in conference in Cleveland, Ohio,.May 14, 1928. At this meeting the General Chairman representing the employes was noted as being present and the Local Chairman, representing the employes in the territory of which Walkerton is a part, was also noted as being present.
In this connection Carrier's Exhibit (two) shows sheet listing positions with reference to Walkerton. The Exhibit shows Walkerton (changed to B and 0, 5/1/28). The Local Chairman denies he inserted the words (changed to B and 0, 5/1/28) and denies any knowledge of the intention or desire of the Carrier to transfer the agent's position to the Baltimore and Ohio until the transfer became a fact commencing November 13, 1944 and ending November 15, 1944. It is not denied that the applicable agreement between the parties, effective February 1, 1943, lists the position of agent at Walkerton. 3460-20 631
It is significant to note that at no time since the joint contract of the New York Central and the Baltimore and Ohio was consummated, has the General Chairman of the Employes protested the removal of the three trick telegrapher employes of the New York Central, who replaced other employes on the system, but accepted such situation, and in the light of subsequent agreements between the parties where the three trick telegrapher positions were eliminated, must have concurred in the action of the two carriers in such respect. While there is a conflict in the record as to the knowledge the employes had with reference to the agent's position, we believe the evidence is in preponderance that the Employes had knowledge that the agent's position under the joint contract of May 1, 1928 was in fact a Baltimore and Ohio position, subject to certain conditions. A period of 16 years elapsed before any protest was made by the Employes and then the protest was confined to the agent's position.
In the light of the record, we believe the language taken from the following awards applies:
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