THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Chesapeake District)
EMPLOYES' STATEMENT OF FACTS: Prior to September 22, 1951 there were the following employes at the Carrier's Delaware, Ohio freight and passenger station:
form necessary station work just as such work is being performed by the Agent-Operator at Delaware, Ohio, under present conditions, and that there has been no violation of the Clers' Agreement in any respect. The Board should, therefore, deny the claim in the instant case in its entirety.
OPINION OF BOARD: Heretofore this dispute was before us, but as a preliminary issue, the Carrier questioned our jurisdiction in view of the failure to give the elegraphers' Organization notice and the opportunity to be heard. It was our determination (Award 8200) that the Telegraphers' Organization was an interested third party and therefore entitled to notice, as required in Section 3, First (j) of the Railway Labor Act.
The required notice was duly given to the Telegraphers' Organization, which however, failed to appear, although it did inform the Secretary of this Division that it was "not involve" in the dispute.
Regardless of the position taken by the Telegraphers and since it appears that due notice has been given "to all parties involved in the proceeding", as directed by the Railway Labor Act, the matter is now properly at issue and our determination will be binding upon the parties involved.
Recently a similar issue as the one presented in this case was before us, Award 8079 (Lynch) involving the same parties and the same agreement and in particular, Scope Rule 1 (b).
There the Carrier had abolished a ticket-clerk position and turned the work over to the Telegraphers. A claim was then filed that such unilateral abolishment was a violation of Rule 1 (b).
We sustained the claim on the finding that "Carrier (1) concedes it abolished Claimant's position and (2) distributed the work of his position between two persons not covered by the applicable Agreement".
In Award 7372 (Carter) we sustained the claim that this Carrier violated the Agreement when it unilaterally abolished a ticket-clerk position at Staunton, Virginia and re-assigned a part of the remaining work to an employe uner the Telegraphers' agreement.
See also Award 7047 (Wyckoff), Award 5790 (Wenke), Award 8234 (Lynch).
In our opinion when the Carrier abolished the Cashier's position and assigned the duties of that position to the Agent, it violated the agreement.
This does not mean that a Carrier may not abolish a position. The Carrier has this right "when the work no longer exists" for as we said in Award 601 (Swacker):
but in the present case, the work of the abolished position still exists and is subject to the Clerks' agreement.
In making our determination we are not unmindful of the other awards wherein we "recognized that almost every employe and official of a carrier is called on to perform some clerical work. So long as that work is merely incidental to the performance of his regular duties, there is no violation of the agreement". Award 2138 (Thaxter) ; but in this case we find that the work in question does not come within the description of "incidental".
By notice dated September 17, 1951, effective September 21, 1951, the Carrier abolished the Cashier's position which carried the rate of $13.81 per day. Prior thereto, and on August 3, 1951, claimant Waxler, who had held the Cashier's position some 22 years, bid for another position that of Assistant Chief Clerk, which carried the rate of $17.10 per day.
On September 19 1951, before the Cashier's position was abolished, Mr. Waxler was awarded the new job. In these circumstances claimant Waxler has no standing to maintain claim (c) and is should be denied. 8330-34 877
Likewise claim (d) is to be denied. The claimants are unnamed and unlike the situation in Award 8203 (Wolff), they do not on this record even appear identifiable. Award 8124 (Coffey).
In addition it is to be pointed out that the record here shows an unwarranted and unexplained delay of some 33 months after the claim was first declined and 25 months after the declination was reiterated before an appeal was taken. Such a delay has been frowned upon by this Board and has resulted in adverse action. See Award 6656 (Wyckoff) where although the claim was sustained on the merits, yet a delay of 32 months was held unreasonable so as to bar a monetary award.
Also see: Award 5190 (3 year delay) ; Award 6229 (2 year delay) ; Award 7074 (28 months delay); Award 8162 (26 months delay); Award 8209 2%a year delay).
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon 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
With respect to the claim disposed of in this Award, which was premised on Carrier's alleged violation of Scope Rule 1 (b) providing.
when effective September 22, 1951 it abolished an entirely unneeded Cashier (first trick) position at its Delaware, Ohio Agency and reassigned such of its duties that remained to the Agent and/or Agent-Operator (first trick) ; and included demands-
We fully concur in the conclusion of the majority wherein it is held that this Award is binding upon the Telegraphers, as well as the Carrier and its Clerks, despite failure of the former to appear at a hearing held pursuant to notice to them of the proceedings as ordered by the Division as result of prior Award 8200 which determined the Telegraphers were involved; and that the monetary claims are denied because-
However, we are not in accord with and have dissented to those prior Awards wherein this and other Carriers have been held by this Division to be in violation of the same or similar Scope Rule when, as here, they have abolished entirely unneeded clerical positions and reassigned such of their station duties as remain to be performed to station employes of the Telegrapher Craft as incidental to the duties of their regular assignments or to fill out their 8-hour assignments; therefore, we must and do dissent to the conclusion of the majority in its Opinion here that-
for the reason that the majority has by following those erroneous Awards, incorrectly interpreted Scope Rule I (b), because that rule only concerns itself with the removal of positions having the exclusive right, by agreement, to the performance of certain work. To require Carriers o maintain unnecessary positions gives such rules an absurd rather than a sensible meaning, and :x meaning certainly not intended by the parties in negotiating such rules. See Carrier Member Dissents to Awards 8234, 8079, 7372, and 6937.