bid for and had been assigned to the newly-created position, General Chairman Keller requested, in accordance with the agreement of long standing, that Mr. Winstead be permitted to return to Elm City and occupy the newlycreated position of agent-telegrapher. When inquiry was made as to whether claims would arise out of this change, General Chairman Keller assured carrier's representatives that inasmuch as the procedure was strictly in accordance with the understanding existing for many years, the organization would not progress claim in connection with this assignment. Up to the present time, no such claim has been presented.
Effective January 15 1963, the position of agent-telegrapher occupied by Mrs. S. S. Carroll at Cope, S. C., was abolished. The following day, new position of agent (non-telegraph) was established and it not being known that Mrs. Carroll desired to remain at Cope after the new position of agent (non-telegraph) had been established, bulletin advertising this vacancy was issued in the usual manner. Learning of the proposed change, General Chairman Keller, in his letter of January 6, 1953, addressed to Carrier's Assistant Vice-President, Mr. Baker, called attention to the fact that the parties had reached an understanding that the only time a bulletin would be issued when positions were reclassified would be in those cases where the incumbent of the position being abolished desired to exercise seniority. Mrs. Carroll, occupant of the former position of agent-telegrapher at Cope, was, therefore, permitted to remain at that station after January 15, 1953, on the newly created position of agent (non-telegraph), in accordance with the understanding reached with representative of the employes which had been in effect for many years.
There are numerous other instances on record where the present General Chairman has handled such matters along the lines mentioned, but the instances shown are representative and clearly demonstrate the fact that the employe representatives know full well the meaning of the agreement and are in full accord with the understanding reached in 1931 with representative of the employes.
Inasmuch as the creation of the position at Winterville, North Carolina, is fully supported by Article 7 of the current agreement and by custom, practice and understanding with representatives of the Employes, the Board is respectfully asked to deny the claim in its entirety.
The respondent carrier reserves the right, if and when it ;s furnished with ex parts petition filed by the petitioner in this case, which it has not seen, to make such further answer and defense as it may deem necessary and
9per in relation to all allegations and claims as may have been advanced yrothe petitioner in such petition and which have not been answered in this, its initial anwswer.
Data in support of the Carrier's position have peen presented to the Employes' representative.
OPINION OF BOARD: By letter of September 27, 1951, the Carrier informed the Organization as follows:
By letter of October 4, 1951, the Organization filed a Claim protesting the reduction in rate. By letter of February 28, 1952, the Carrier denied the Claim and in doing so identified it as one "account of positions reclassified." (Emphasis added) The Claim was appealed higher, and was again denied by letter of February 25, 1953, which letter also used the term "reclassificd". 8036-39 979
As far as appears from the Record, throughout handling on the property the Carrier treated the case as involving reclassification. The Carrier did not interpose the "new position" contention until the case reacho<: this .Board, and even in its arguments to the Board the Carrier has spoken of the case as involving the "matter of reclassification" (see page i of Carrier's Oral Argument).
The Organization has remained constant in its contention that the case involves reclassification, and challenges the Carrier's freedom to take unilateral action in setting a new rate for the reclassified position (the Orgaai~ation emphasized, however, that "We do not discuss whether the agreement was violated in making a reclassification by unilateral action of the Carrier"). The Organization relies upon Articles 2(a) and `21 of the applicable Agre-ment (November 1, 1939). Said Article 2(a) provides:
The words "changing their classification or work shall not operate to establish a less favorable rate of pay" are specific and clear (thus they are not to be given a different meaning by any past practice, or acquiescence of the F.mployes), and the Carrier clearly identified its action when it gave the Sep tember 27, 1951, notice that it was preparing to reclassify agencies" (Emphasis added) Of course the Carrier, when it reached this Board, urged that the position became a "new" position after the telegraphing requirement was eliminated, and the Carrier urged that the case is controlled by Article 7 of the Agreement. It may be that the change in jot) requirements gave the position some of the attributes of a "new" position, but it is certain that the position assumes all of the attributes of a "reclassified" position, and, the case accordingly is controlled dominantly by Article 2(al.
The Organization has emphasized that the Carrier did not have the right to take unilateral action in setting a new rate for the Winterville position and in this respect the Organization has pointed to Article 21 of the Agreement, which precludes unilateral action in changing rules or wage scale. In this connection it is also significant that in entering into the November 1, 1939, Agreement the Parties apparently negotiated the wage rate for each position at each station on an individual basis there is no uniform or standard rate for all Agent positions or for all Agent-Telegrapher positions (though there have been a series of across-the-board increases since 1939). Article 21 appears to be the type of provision referred to in the following quotation from Addendum No. 1. to Supplement No. 13 to General Order No. 27, United States Railroad Administration [The quotation pertains to the application of provisions containing the Article 2(a) language]:
The underscored portion of this quotation obviously prompted the statement in the so-called "Cuyler" letter wherein it was pointed out that the afore mentioned Addendum No. 1 "recognized that many schedules contained provisions dealing with the method of procedure applicable to changing rates."
In view of the above considerations it must be concluded that the disposition of this case is controlled by Articles 2(a) and 21, and that the 8036-31
Claim must be sustained unless Awards 6954, 6955, 6956 and 6957 are governing precedents. Said Awards do not govern here, however, for the Referee there said "The genesis of the dispute is in Petiioner's belief that Carrier has transferred `telegraph work to train service employes and others' at the points in question"; such issue is not the genesis of the dispute in the present case. Moreover, those Awards denied the Claims therein on the basis of procedural defects which are not present in the case now before us.
Finally, it should be noted that other Awards involving a rule similar to Article 2(a) are also distinguishable. In Award 1470 the basic issue was the Carrier's right to reclassify in the first place (and if that case involved any rule similar to Article 21 herein it was not discussed by the Referee) ; in any event, there was no dispute as to the rate for the positions involved in Award 1470. Likewise, in Award 7768 the Organization challenged the right of the Carrier to unilaterally change the content of a position; the Carrier asserted such a right but recognized that such a change was to be followed by negotiation as to the proper rate to be established for the changed position. Award 7768 specifically pointed out that the Organization was afforded an opportunity to discuss the proper rate but chose not to do so.
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 resspectively 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
This is a case wherein it is evident the Referee completely failed to understand the rule involved and disregarded, with attempted weak distinguishment, prior Awards of this Division interpreting a similar, if not, for all practical purposes identical, rule. The erroneousness of the conclusion reached in this Award and the gross misinterpretation of the rules cannot be by-passed.
The fundamental facts in this case are simple: Carrier abolished an Agent-Telegrapher position, removed all communication equipment from the station and established, by bulletin, a new position of Agent (non-telegraph), rating same in the manner prescribed in Article 7.
This case hinged on an interpretation of Article 2(a). Such a provision was interpreted in Addendum No. 1 to Supplement No. 13 to General Order No. 27 and our Award 1470, and most recently in our Award 7768 so as not to preclude what Carrier did here. Nevertheless, the Referee chose to disregard same, setting forth what he believed to e distinguish- 8036-32 981
ments which, in reality, are no distinguishments at all, particularly in the matter of interpretation and application of a rule similar to Article 2(a).
That there was no dispute between the parties to Award 1470 only made one less issue for this Division to decide. It afforded nothing by which to make any distinguishment in the interpretation and application of a rule similar to Article 2(a) in the instant case.
Award 7768 specifically adopted Award 1470 as setting forth the correct interpretation of a rule like Article 2(a), but to say that Award 7768 is distinguishable for the reason stated completely misses the point made in Award 7768. The decision as to rates in Award 7768 was not based on that Carrier having afforded the Organization an opportunity to discuss the rate beforehand, but, rather, on a rule similar to Article 7 in the instant case. Rules such as Article 7 have been uniformly interpreted by Awards of this Division as placing it to be Carrier's function, in the first instance, to establish a rate in the manner prescribed by the rule, and, should the rganization protest, then the process of negotiation must be pursued. (Award 1074.) Although Carrier could, before applying Article 7, have afforded the Organization an opportunity to discuss a rate of pay, it was under no contractual obligation to do so. It is only after Carrier establishes a rate in the manner prescribed by Article 7, and after protest by the Organization, that the process of negotiation must be pursued.
In this case Carrier established a rate for the new position in conformity with Article 7, and the Organization has submitted no evidence that the rate thus established was not in conformity with the rule.
Awards 1470 and 7768 correctly interpret a rule such as Article 2(a) and should have been controlling here; however, the Referee underscores language in Article 2(a) which he believes is controlling but then fails to give any consideration to the remainder, viz., "than is herein established." When Carrier established a rate for the new position in conformity with Article 7, the rate thus established was no less favorable than already established by the Agreement for "positions of similar work and resposibility in the same seniority district" or as otherwise provided in Article 7.
Additionally, the Referee seems to see something in Article 21 which precluded Carrier's actions. Article 21 is the termination clause and in no way precluded Carrier from doing as it did. Article 2(a), properly interpreted, as was done in Awards 1470 and 7768, did not prescribe Carrier's action. Quite the contrary, Carrier's action was in accord with the interpretation of Article 2(a).
Copies of Awards 6954, 6955, 6956 and 6957 were handed the Referee in support of Carrier's position in the instant case. Those Awards, all denied 8036-33 9$21
by Referee Coffey, involved the same parties as in the instant dispute; the claims set forth in each case were identical to the claim set forth in the confronting dispute, except as to station and claimant, and the ruels involved were identical to those in the instant case, yet the present Referee in Award 8036 disregarded those precedent Awards and in his Opinion held:
It is quite apparent that the Referee in the present case did not give to Awards 6954, 6955, 6956 and 6957 the careful consideration due, because the Referee in those Awards upheld the right of the Carrier to do exactly what it did in the confronting dispute. The Referee in those Awards held: