STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers, on Colorado & Southern Railway, that the agency position at Grenville, IVew Mexico, was not abolished in fact, when on March 27, 1942, the Carrier_ acting alone, discontinued the agency position and employed a so-called caretaker in lieu thereof to perform the agency work at the rate of $25.00 per month at this station; and that W. E. Spencer, the regularly assigned agent at Grenville, who was thus improperly removed from his position, shall be restored to his former position and paid for all loss of wages suffered, including express commissions and for all rent, coal, gas and lights he has had to purchase elsewhere, since March 27, 1942, the date he was improperly removed from his position.
EMPLOYES' STATEMENT OF FACTS: There is in effect and in evidence an agreement bearing effective date of June 16, 1924, betv4een The Order of Railroad Telegraphers and the Colorado & Southern Railway Company, copies of which are on file with the National Railroad Adjustment Board. At page 19 of the agreement there is listed the Grenville agent-telegrapher position, rate 58 cents arz hour, the present rate being $1.021/2 an hour.
Grenville, New Mexico, station is located on the main line of the Southern Division of the Colorado & Southern Railway Company. For many years prior to March 27, 1942:, an agent-telegrapher was employed at Grenville.
By Supreme Court Order No. 4627 of the State of New Mexico, filed November 21, 1941, the Colorado & Southern Railway Company was granted permission to discontinue its agent-telegrapher position at Grenville and substitute therefor a caretaker, with the understanding that he would have definite duties as set out in the Order and during the same hours as the agent whom the caretaker would supplant. The agent-telegrapher position was discontinued March 27, 1942, and a caretaker or custodian was installed in his stead.
POSITION OF EMPLOYES: We believe the following rules to be pertinent in connection with this; dispute:
There is very little express business handled at Grenville. The commissions paid by the Express Agency to the custodian do not average over $3.50 per month. Express shipments from Grenville will not average one per month. Express shipments received at Grenville average far less than one a day. The time devoted by the custodian in the handling of this express business will not average more than five or ten minutes per day, including the making out of a few small monthly reports.
Referring to that part of the claim which requests that W. E. Spencer be paid for "all rent, coal, gas, and lights he has had to purchase elsewhere":
There is no rule in the agreement to support such a claim. The Carrier is not obligated under the Telegraphers' Agreement to pay for rent, coal, gas, and lights.
Under Rule 23 of the agreement, the Company is to provide free living quarters, water, fuel, and light at "isolated" points where living quarters cannot be otherwise secured. Rule 23 reads as follows:
As previously stated, Grenville is a small town. It is not an "isolated" point. Living quarters, etc. can be secured in Grenville. The Company is not obligated to furnish living quarters at Grenville. Therefore, that part of the claim should be denied.
The Employes did not handle a claim for "all loss of wages suffered, including express commission," in presenting this claim or in discussing the claim with the ofcers of this Company. Tberefore, that part of the claim should be denied.
As shown above, when the Carrier closed the station at Grenville and abolished the position of agent-telegrapher, it removed all station work from Grenville and there was, therefore, no violation of the Agreement.
When the Carrier assigned a custodian to perform "special work," there was no violation of the Agreement. Therefore, Telegrapher W. E. Spencer, whose position was abolished, was not improperly removed from that position, and the request that he be restored to that position should also be denied.
OPINION OF BOARD: A close reading of the record in this case discloses that the "custodian" of the Grenville station is regularly performing some of the same functions the "agent" used to perform; is performing others on a reduced scale; is performing still others occasionally; while the principal functions have been transferred elsewhere.
The Board feels it need not particularize at this point. It stands on the generalization above which can be readily verified from the statements of the parties with their attached exhibits.
These generalizations suffice to support the Organization's claim that the Carrier has violated Rule 1 and other pertinent rules of their agreement by turning over an agents' work to a custodian not covered by the agreement.
The Carrier had the right to substitute a custodian for an agent at Grenville, provided the custodian did not carry on as an agent. In this case the custodian did carry on as an agent, with the Carrier's consent. Rule 1 says:
The Board cannot agree with the Carrier that the note to Rule 1 Ls governing. The only qualification in that note which the Carrier has shown the Grenville custodian to meet is that she received less than $30.00 a month salary.
As to the two claims in behalf of W. E. Spencer, the agent at Grenville prior to March 27, 1942:
The Carrier maintains, and the Organization does not refute, that this claim had not been the subject of discussion between the Organization and the Carrier before it was brought before this Board. The law (Railway Labor Act, Title 1, Sec. 3 (i) ) requires that such claims "shall be handled in the usual manner * * *." before coming to this Board. The "usual manner" of handling includes discussion between the parties. Therefore, the Board will remand this claim to the parties.
This was the first claim in Spencer's behalf sent to the Carrier March 3. 1945 and was repeated November 4, 1946.
The Organization has made no showing that furnishing quarters, coal, gas and light to Spencer was an obligation on the Carrier's part. Without any showing that these thing were due Spencer while he was at Grenvillethat they were tied in with and an essential part of his agreed compensation -that they were not a gratuity-this Board cannot sustain the Organization's claim that he be made whole for their loss.
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 Carrier violated Rule 1 and other relevant rules of the Agreement.
Claim for restoration as agent at Grenville, New Mexico, and made whole for my loss of wages remanded to parties.