STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(a) Carrier violated and continues to violate the parties' agreement effective January 1, 1938, when on August 5, 1953 it abolished Clerk Position No. 2, at Stuart, and transferred duties of that position to the Agent and to incumbent of Ticket Clerk-Operator Position No. 4074, established on November 24, 1953, and that
OPMON OF BOARD: The instant dispute is again before the Board after notice given pursuant to Section 3, First (j) Railway Labor Act, as Amended, in conformity with Award 7975.
Notice of hearing, the service, and the return made thereon, all have been examined and same are hereby approved. Accordingly, the Board is of the opinion, on the basis of its first determination in Award 7975, that all interested parties to the dispute have been given the notice contemplated by Section 3, First (j), supra; that the dispute is at issue for a final and binding award. Thus, the dispute, being now at issue, comes on for decision on the merits.
The dispute arises at Stuart, Florida, a point on Carrier's double track, automatically signaled mainline between Jacksonville and Miami, Florida.
Stuart is basically a one man agency station. Over the years, other positions have been established and abolished to accommodate the needs of the service and the scope of the work under both the Clerks' and Telegraphers' Agreements.
As shown by the record, the need predominantly has been one for relieving or assisting the agent with his clerical duties when the volume of business could not be accommodated at a one man agency station. Except for a 2Va month period in 1945 a clerical position had been established and remained in existence for 10Yz years prior to August 5, 1953, when the position was abolished after protest and dispute over ticket selling work assigned to the clerical position by the Agent.
Shortly after the clerical position was abolished, and on November 4, 1953, Carrier advertised a position of "Ticket Clerk-Operator" at the same location for "Agents and Operators" of the Telegraphers' craft, involving substantially the same duties as those previously assigned and performed on the abolished clerical position, but adding the additional clerical work of selling tickets, along with added telegrapher duties in the nature of "telegraphic and train order work."
The bulletin of November 4, which advertised the hours of the position so as to coincide with the assigned hours of the Agent, was cancelled on November 7, and a replacement bulletin was posted November 16, 1953, advertising the same "Ticket Clerk-Operator" position, but changing the hours of assignment from 9:00 A. M: 5:00 P. M., to 1:00 P. M: 9:00 P. M. The position was filled on November 24, 1953, and later abolished on Aprll 23, 1954.
The change in hours, according to Carrier, was due to the requirement to "OS" trains and handle train orders after the Agent went off duty. There is evidence of record that some such work was performed on all but Saturdays, Sundays, and holidays, days on which the "Ticket Clerk-Operator" did not work. On dates checked for a sampling of the work no telegrams were sent nor were train orders copied, according to an exhibit appearing in the record.
Rule 66 of the Clerks' Agreement is relied upon in support of the claimed violation. That Rule reads:
The evidence of record is sufficient to make out a case of evasion within the meaning of the rule.
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 Le.bor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That all interested parties to the dispute were duly notified of the pendency of the dispute, and were afforded the opportunity to appear before the Board and to be heard before a final and binding award was entered herein, all as per our earlier Award No. 7975. 3124 22
That the Clerks' Agreement was violated when Carrier abolished Clerk Position No. 2, at Stuart, and transferred duties of that position to incumbent of Ticket Clerk-Operator Position No. 4074, established November 24, 1953.
That the named claimant should be compensated for wages lost from his established position from November 24, 1953, to April 23, 1954, but claim made on behalf of unnamed employes is denied.
The majority correctly denied the claim made herein on behalf of unnamed employes.
However, it erred by invoking Rule 66 to sustain part of the remainder of the claim herein based upon the following erroneous premise contained in its FINDINGS:
In the OPINION OF BOARD herein, the majority correctly states that Clerk Position No. 2 was abolished on August 5, 1953. The remaining work thereof was transferred back to the Agent who was the only employe remaining at Stuart. Ticket Clerk-Operator Position No. 4070 was not in existence at the time. Consequently, Rule 66 was not applicable. This is confirmed by the majority's eliminating the period August 5 to November 23, 1953, inclusive, from that part of the claim sustained herein.
In addition, this Award is in conflict with an important principle which has been followed consistently by this Division down through the years and which recognizes the right of telegraphers to perform clerical work.