THE DELAWARE, LACKAWANNA & WESTERN RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Delaware, Lackawanna & Western Railroad Company that
EMPLOYES' STATEMENT OF FACTS: An agreement, herein referred to as the telegraphers' agreement, by and between the parties bearing effective date of May 1, 1940, is in evidence; copies thereof are on file with the National Railroad Adjustment Board.
Effective 12:01 A. M., March 1, 1945, the Carrier established three 7-day-week positions at Transportation Desk, 140 Cedar Street, New York, N. Y., for the purpose of maintaining a skeleton train sheet covering freight and passenger train operations and movements; said train sheets to reflect trains, symbols, engine numbers, number of cars in train, loads and empties including number of perishables, and live stock, tonnage, delays and reasons therefor, whether or not proper connections are made, and train arrivals at and departures from principal terminals. The incumbents of the three telephone operator positions (not now classified as such by the Carrier) generally and regularly secure by telephone from various locations on the Carrier's lines the information necessary to maintain said skeleton train sheets,
6. The positions are properly classified and designated as Transportation Clerks and can not under any stretch of the imagination be considered as telephone operators. Claim was never presented on the Property by the ORT that Transportation Clerks were "Telephone Operators" within the scope of the ORT Agreement, but rather claim was made that non-schedule employes are performing work within the scope of their agreement.
7. The BR & SC Organization should be given an opportunity to be heard by this Board before any decision is rendered in this case.
8. Traditionally, practically, factually and contractually the work belongs to the clerks.
OPINION OF BOARD: On March 1, 1945, Carrier established three 7day a week positions around the clock at the Transportation Desk, 140 Cedar Street, New York City. It is the contention of the Telegraphers' Organization tat these positions should have been assigned to employes within its craft rather than to employes under the Clerks' Agreement.
The record shows that the primary duty of these positions was to compile train sheets and situation reports. In doing this work it was necessary to gather information from various points on the railroad system concerning the movements and operations of trains, weather conditions and other pertinent matters. The telephone is used chiefly in gathering the information and using the telephone constitutes most of the work of the position. The information is entered on various blank forms and is thereby made a matter of record.
The scope rule of the applicable Telegraphers' Agreement, insofar as it affects the present case provides that the agreement applies to all telephone operators except switcAboard operators. Rule 1, Agreement, 1940. While our previous decisions hold that the use of the telephone in the transmission or reception of messages, orders, or reports of record is the work of the telegraphers, it is not the only work included within the Telegraphers' Agreement. In addition to telegraphers' work as traditionally defined, it includes, of course, all classifications of employes specifically negotiated therein whatever the nature of their work may be. Consequently, an employe who spends the greater portion of his time in gathering information by telephone to be made a matter of record, is ordinarily within the scope of the Telegraphers' Agreement.
Unless this be so, the provision of the scope rule which includes telephone operators except switchboard operators is rendered entirely meaningless. Under the record before us, these employes spend most of their time in securing information by telephone.
Information secured from telegraph operators is less than one hour on each shift. The balance is acquired by using the telephone. There is some clerical work connected with it, but not more than an operator would perform if it was received by telgraph. We think the amount of telephoning on these positions and the nature of the information sought constitutes these positions as telephone operators as shown in the scope rule of the Telegraphers' 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: 3902-20 29
INTERPRETATION NO. I TO AWARD NO. 3902
DOCKET TE-3581
NAME OF CARRIER: The Delaware, Lackawanna & Western Railroad Company.
Upon application of the representatives of the Employes involved in the above award, that this Division interpret the same in the light of the dispute between the parties as to its meaning, as provided for in Section 3, First (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The request for the interpretation of Award 3902 arises out of a situation existing after the claim, upon which the award is based, had been appealed to this Board. The award was handed down on May 19, 1948. Carrier first received notice of it on May 24, 1948. On May 25, 1948, the Carrier bulletined a teletype-clerk-operator position and indicated its intention to abolish the positions involved in the award as of June 1, 1948. The right to abolish the positions is conceded by the Organization. The present dispute arises from the fact that the award assumes the continuance of the positions in disposing of the issue then before the Board. The Organization contends that the Carrier should be required to bulletin the positions even though they are no longer in existence for the purpose of determining the employes who were wrongfully deprived of the work and, consequently, to whom reparations are owing.
We are not in accord with the Organization that the Carrier should be required to bulletin these positions. The positions having been properly abolished, there is no proper basis to advertise them. From the standpoint of the Carrier it would be a vain thing for it to advertise a nonexistent position.
The burden is upon the Organization to show that qualified employes, not exceeding three, under the Telegraphers' Agreement have suffered loss as a result of Carrier's failure to properly apply the rules. If this be done, Carrier is obliged to pay the losses sustained by them. The fact that they may not be the persons primarily entitled to the positions Is not a controlling factor insofar as the Carrier is concerned. It need not pay but once.
While the Carrier can abolish a position at any time when the duties of the position cease to exist or when they have been properly assigned to another within the scope of the applicable Agreement, such abolition does not have the effect of nullifying an award based on an improper application of the rules prior thereto. The Carrier is still required to reimburse those employes who suffered loss because of its wrongful application of the rules. It is the claimant, however, and not the Carrier, who must assume the burden of showing the loss and the employes who suffered it. Upon the establishment of such facts the Carrier is obliged by Award 3902 to make compensa-