NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
1. The Carrier violated provisions of the prevailing agreement between the parties when on January 16, 1952, acting alone, it discontinued the positions of City Passenger and Ticket Agent, rate $411.81 per month, and First Shift Operator Ticket Clerk, rate $1.825 per hour, at Rockford, Ill., and concurrently therewith created position of Ticket Agent Operator, rate $1.875 per hour to perform substantially the same work as that normally attached to the two abolished positions.
2. The Carrier shall be required by an appropriate order from the Board:
(Note-The reparations due individual employes is not ascertainable until Carrier bulletins the vacancies and makes assignments as it should have done when the vacancy of City Passenger and Ticket Agent position occurred on January 16, 1952).
All data in this submission have been presented to the Employes and made a part of the question in dispute.
OPINION OF BOARD: Employes contend that Rule 5(d) of the Agreement is controlling in this dispute, which provides that changes in classification of positions or rates of pay shall be made only after conference and agreement between the Carrier and the Organization. Also cited in support of this position is Award 5171, where a substantially identical rule and similar facts were involved.
This is a joint submission and there is no material dispute as to the facts. On January 16, 1952, the incumbent of the City Passenger and Ticket Agent position retired and concurrently therewith, allegedly because of decreases of business and of almost complete disappearance of "City Passenger Agent" duties formerly designated as a part of the duties of the position, Carrier abolished the position and likewise that of first shift Operator Ticket Clerk. A new position of Ticket Agent Operator was established by bulletin, at rate of $1.875 per hour. The claim is for the restoration of abolished positions at their former rates, for payment to incumbent, who previously held the first shift Operator Ticket Clerk position the difference between the rate established therefor, $1.875 per hour and $411.81 per month, and that all other employes adversely affected be compensated for any wage loss sustained by reason of Carrier's action.
and further that the only portion of this claim properly before this Division for adjudication is that portion pertaining to the propriety of the rate of pay established by Carrier for the new position as the claim was handled on the property solely on that basis as shown by the record citing Section 3, First (i) of the Railway Labor Act and Award 5469 with other awards.
This contention of Carrier we do not believe has any merit owing to the fact that this is a joint submission and no proper showing has been made relative to any timely objection on jurisdictional grounds.
The Scope Rule includes "agents" (freight and ticket)." The exceptions Rule (2) includes "supervisory or traffic department agents."
The question is not raised in the record relative to this position coming within the exceptions rule, therefore, we assume no question of that nature is involved although there is some discussion in the record with reference to some supervisory duties being involved in the abolished position of "City Passenger and Ticket Agent".
The parties are apparently in agreement on the proposition that Carrier has the right to abolish positions if this prerogative is not limited by the Agreement. And in the record both parties are apparently in agreement on the proposition that in recent years the duties designated to the position of "City Passenger and Ticket Agent", i.e., those pertaining to "City Passenger Agent" have disappeared or have een absorbed by the employes occupying the three shift positions. Operator Ticket Clerks. 6486-23 _ 1139
We are of the opinion that on this record Respondent Carrier was within its rights in abolishing the position of City Passenger Agent by reason of an almost complete disappearance of the duties originally pertaining to the position. As a matter of course the additional duties pertaining to the position of Ticket Agent remained. And had the Carrier abolished the City Passenger Agent position and stood on the record as presented herein, it was within the rights under the facts presented. However, Respondent Carrier did not stand on this proposition at that point but after an attempt, not considered sufficient under that rule involved, to adjust the matter by negotiation established a new position of Ticket Agent Operator fixing the rate of pay at $1.875 per hour.
We do not construe the evidence presented in this record with regard to "conference and agreement" as being sufficient to meet the provision on which to base any consideration that this rule has been invoked by Carrier with the result that Petitioners waived the provisions thereof.
The abolishment of the City Passenger's position should be approved. The abolishment of the First Operator Clerk's position is not approved on the record of establishing the new position of Ticket Agent Operator and this portion of the claim should be remanded back for appropriate action on the property in accordance with the provisions of Rule 5(d). This position was not in fact abolished as the duties remained.
On the record it does not appear that other employes were adversely affected, or if such was the case it is not clearly shown to an extent to be intelligently passed upon.
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
1. That the Agreement was not violated on the abolishment of the City Passenger and Ticket Agent position. It was violated on the second positionthat of First Shift Operator Ticket Clerk-and therefore this part of the claim is remanded for further consideration on the property in accordance with the provisions of Rule 5(d) of the Agreement.
(b) Remanded in accordance with Finding made under Division 1 hereof.
(d) Dismissed without prejudice by reason of lack of proof as to extent, if any, other employes were adversely affected. 6486-24 1140