NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
1) Carrier violated the rules of the Clerks' Agreement, bearing effective date of September 1, 1949 when it failed to assign an employe covered by the Clerks' Agreement to the position of Assistant Agent at Cedar Rapids, Iowa on May 1, 1950 when that position became vacant.
EMPLOYES' STATEMENT OF FACTS: Included under Rule 1(b) of the Agreement with the Carrier, effective September 1, 1949, copies of which have heretofore been filed with your Honorable Board and by this reference hereto are made a part hereof there is listed certain positions of Assistant Agents. Included in that group is the Assistant Agent's position at Cedar Rapids, Ia. which is in Seniority District No. 33.
On the effective date of the agreement, this position was filled by Employe William Kinder, who prior to being assigned to position of Assistant Agent at Cedar Rapids, held the position of Chief Clerk at Kansas City, Mo. a position likewise covered by the Clerks' Agreement. Due to illness, Employe William Kinder requested and was granted leave of absence effective on or about March 1, 1950 and the position of Assistant Agent at Cedar Rapids was filled by Employe Feieieisen at the request of management, and he filled this position until May 1, 1950.
Employe Feiereisen has a non-clerical seniority date in District No. 33 of November 24, 1937 and a clerical date of January 24, 1940. In addition to having filled the position for about two months in 1950 the employe, in a notarized statement addressed to all concerned, stated that he held the position for about a week again in 1951 and further that he has at various times throughout the years he has worked at Cedar Rapids. performed the duties of Assistant Agent whenever the regular occupant of that position was on vacation or sick leave.
Of course, these positions, like all other 1 (b) positions, on many occasions prior to the time that they were included within the scope of the Clerks' Agreement, were filled by the appointment of employes other than those holding seniority under the Clerks' Agreement.
In addition to the Assistant Agents' positions cited above, there have been many other 1 (b) positions filled since January 16th, 1946 by the appointment of employes who held no seniority under the Clerks' Agreement.
This submission on the part of the Clerks' Organization is in effect a request that your Board write into our Clerks' Agreement a new provision which places a restriction upon a right which the Carrier has always had.
There is no rule or agreement that restricts the right of the Carrier to select for these Assistant Agent positions anyone whom they may desire and your Board has on many occasions said that "all inherent rights of management that the Carrier has not contracted away remain with it." In this case, the Carrier has not contracted away its unrestricted right to fill by appointment the position of assistant agent at Cedar Rapids, Iowa.
OPINION OF BOARD: The within claim involves the following provisions of the Clerks' Agreement, effective September 1, 1949:
Positions within the scope of this agreement belong to the employes covered thereby and nothing in this agreement shall be construed to permit the removal of positions from the application of these rules, except in the manner provided in Rule 57.
The Carrier twice appointed persons from outside the ranks of Clerks to fill the position of Assistant Agent, Cedar Rapids, a position listed in Rule 1 (b) of the Agreement.
Since the instant position is not subject to the Promotion and Bulletin Rules of the Agreement the Organization has not questioned the Carrier's right to fill the same by appointment. The Organization, however, vigorously opposes the appointment of persons to the listed positions who are outside the coverage of the Clerks' Agreement contending the above noted paragraph of Rule 1 (e) restricts not only the position and the work of the position to the Clerks but also the source from which appointments can be made.
Both parties have cited past awards of this Division to the effect that the duties of a position listed or included within a scope rule belong to the Organization negotiating the rule or agreement. (Awards 3360, 3563, 5790, 6141, 6348 and 6357). Hence, having listed the subject position in the scope rule, this Carrier could not, without subsequent rule change, assign the work of the position to a member of any Organization than that of the Clerks'. We are constrained to construe the above-quoted paragraph of Rule 1 (e) as simply a contract expression of such principle.
Under the terms of Rule 1 (b) the occupant of the position in question is subject to but four of the fifty-two rules contained in the Clerks' Agreement. He is however, given seniority under the Agreement at the time his pay starts.
Carrier relies upon the principle that all inherent rights of Management, (which would include the right to hire whomsoever it chooses) that it has not contracted away, remain with it. In view of this principle and the past practice shown of record, we hesitate to hold that the quoted paragraph of Rule 1 (e) goes beyond that which we have above indicated, in its scope and effect. In short, clear and unambiguous contract provisions should be found before an inherent right of either Management or Employes should be taken away.
7 Recognition of the Organization's contentions apply to a limited extent by agreement in the Note and sub-Agreement applicable to Rule 1 (c) and (d) positions. The positions listed in these groups are, in the main, of lesser importance and of narrower specialization. But even as to those positions the Carrier's final judgment regarding appointments remains unimpaired in the final analysis. Any ruling which would narrow Management's discretion in respect to the more responsible positions of Class 1 (b) would seem illogical in absence of clear and unambiguous language to the contrary.
The intended import of the Note is somewhat confused by the phrase in parenthesis giving departmental preference. The intention of the parties becomes clearer if we read the first sentence of the Note without the distracting effect of the enclosed phrase, i.e., "In filling positions listed in Rule 1 (c) and 1 (d), preference shall be given to employes coming under the provisions of this agreement.* * *" Being thus specially treated it follows that no such preference prevails in respect to the positions listed in the other classes. Again, if the Organization was correct in its contention that all appointments must come from the ranks of the Clerks and departmental preference was 6697-11 1360
special to Rule 1 (c) and 1 (d) positions, why did not the parties simply state this intention in said Note as follows: "In filling positions listed in Rule 1 (c) and 1 (d), preference shall be given to employes in the department in which the positions exist" No need would exist for the remainder of the sentence reading "coming under the provisions of this agreement," if the contention was correct.
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