EMPLOYES' STATEMENT OF FACTS: The use of one or more Stenographers in the Chief Dispatcher's Office at Sacramento, California, had been the practice for several years prior to June 13, 1944. On that date Clerks' Circular No. 77-44 (Employes' Exhibit "A") was issued advertising for a "Relief Stenographer-Chief Dispatcher's Office, Sacramento" to perform relief Sunday, Tuesday and Thursday in that office and to work Monday, Friday and Saturday in the Superintendent's Office, with Wednesday as the relief or rest day. Thereafter the rest days of the three Stenographer-Clerks in the Chief Dispatcher's Office were changed to conform to those established by the inauguration of the Relief Stenographer assignment (Employes' Exhibit "A") and the positions as changed were advertised in Clerks Circular No. 84-44 (Employes' Exhibit "B") as sevenday assignments.
The three positions of Stenograpber-Clerk in the Chief Dispatcher's Office having been established as seven-day positions, as shown in Employes' Exhibit B" a question arose as to whether the position of Relief Stenographer advertised in Clerks' Circular No. 77-44 (Employes' Exhibit "A"), established to relieve each of the Stenographer-Clerks one day each week, and to work three days each week in the Superintendent's Office, could be considered as one necessary to the continuous operation of the railroad. On June 25, 1944, the Division Chairman wrote the Superintendent with respect to this matter as follows:
OPINION OF BOARD: At the threshold we are met with a motion lodged in the docket which reads:
In view of a number of Awards of this Board and the decision of the United States Supreme Court in the case of WHITEHOUSE v. ILLINOIS CENTRAL RAILROAD COMPANY (No. 131 October Term 1954), notwithstanding pendency of the motion, the Board now has jurisdiction over the only necessary parties to this proceeding and over the subject matter. Awards 5627 and 5644 were ill advised. Therefore we proceed to consideration of the merits.
This claim presents essentially the same questions as those presented in Award 7047.
For a 20 year period prior to world War II the Chief Dispatcher's Office had little or no clerical help: out of a total of 252 months a StenoClerk was employed only 15% of the time or for only 39 months or parts thereof. Thus, there was no clerical help provided, the Chief Dispatcher necessarily performed the clerical duties required as an integral portion of the duties of his position.
The Scope Rule was amended effective December 16, 1943 to read as quoted in Award 7047.
The increase in business attendant upon World War II resulted in the augmentation of regular clerical forces in the Chief Dispatcher's Ofce. 7048-35 459
From 1944 to 1946 the Carrier maintained in that office three 7-day Stenographer-Clerk positions and a relief Stenographer.
In June 1946 the Carrier unilaterally abolished all of these positions and established two new 6-day Stenographer-Clerk positions without rest day relief. From 1946 to 1949 there never was any Relief Stenographer position except from September to December 1948; and during this period there were always one, two or three Stenographer-Clerk positions in existence at various intervals but all on the basis of 6-day assignments with dispatchers performing the clerical work on Sundays and holidays.
Ever since March 5, 1949 there have constantly been two StenographerClerk positions in existence with dispatchers performing the clerical work on rest days and Sundays.
First. Regardless of bow the disputed work had been performed before, the need for around-the-clock clerical positions was recognized by the Carrier when they were established and maintained from 1944 to 1946. And the adoption of this particular Scope Rule in 1943 protected the positions so established to the Clerics (Awards 3563, 5785, 5790, and 6141).
When the Carrier abolished the Relief position, it does not appear that the Sunday, holiday and rest day work had ceased: it was given to the dispatchers. This was a violation of Rule 20 as it stood both before September 1, 1949 (Award 4497) and after (Rule 20 (f) and (h) ; Awards 5240, 5623 and 6216).
When the Carrier reduced the number of Stenographer-Clerk positions, the reductions were proper, if the work of the abolished positions had ceased; but under the 1943 Scope Rule the work of the abolished positions could not properly "ebb back" to the dispatchers without action taken under Rule 64. This is to say that the Claimants are entitled to compensation for the clerical work, if any, which the dispatchers have actually performed since June 16, 198 and which immediately prior thereto was being performed by the occupants of the abolished Stenographer-Clerk positions.
Second. The claim was filed January 24, 1948 one year and seven months eight days after the initial violation is alleged to have occurred. It embraced paragraphs (a), (b) and (d), but not (c) which was added for the first time in the Organization's Ex Parts Submission filed here March 1 1954. The claim was finally denied by the Carrier on appeal on February 28, 1949. On September 22, 1950 (one year six months 25 days later) the Organization submitted to the Carrier a proposed joint statement of facts which the Carrier did not finally reject until November 14, 1952 (two years one month 22 days later).
Thus, five years have elapsed from final denial of the claim on the property to the filing of the ex parts submission here.
The Railway Labor Act contains no time limitation on claims; and neither does this Agreement, although many do. There is no basis for denial of this claim by reason of the initial delay of one year seven months eight days in filing the claim on the property. Such a delay is shorter than most statutory periods of limitation; and, notwithstanding the delay, the Carrier entertained the claim and dealt with it on the merits (compare Award 6656).
However, decisions of this Board have gone so far to deny claims for unreasonable delay in bringing the claim to the Board, even though the particular agreement contained no cut-off or limitation period (Awards 4941 (3 years), 5190 (3 years), 5949 (4 years) and 6229 (2 years)).
The record presents no excuse for the delay of five years in bringing the claim to the Board except the abortive attempt to reach a joint statements of facts. But this accounts for only two years of the five year delay. 7048-36 460
Moreover, the Organization was not diligent about pressing the joint statement to a conclusion. And finally the Organization always was at liberty to file an ex parte submission.
No useful purpose will be served by denying the claim on the authority of the above cited awards and leaving the essential dispute on the merits unresolved.
In view of the foregoing considerations, items (b) and (d) of the claim should, therefore, be denied for the period commencing March 1 1949 and ending February 28, 1954. These items of the claim should be otherwise sustained at the pro rata rate except for holidays which shall be at time and one-half rate.
FINDINGS: The Third Division of the Adjustment Board, 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
Items (b) and (d) of the claim sustained to the extent specified in the foregoing Opinion and Findings.
The majority opinion erroneously rejects the necessity for Notice to other parties involved in this dispute, and for the reasons outlined in our dissents to Awards 5702, 5785, 5790 and to other awards of like tenor, we likewise dissent here.