STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: On may 1, 1953 notice was posted at Wilmington, N. C., advising employes concerned of the abolishment of Clerk-Stenographer position, rate $13.11 per day, effective with termination of assignment on May 7, 1953. This was the only clerical position on the Wilmington, N. C. Group 1 roster and it had been in effect from 3-8-24 until discontinued 5-31-32; was again established 4-1-40 and continued in effect up to date of abolishment on May 7, 1953, as a result of which Claimant A. R. Turner was furloughed.
In letter of May 21, 1953 to Mr. H. R. Lary, Supervisor, Labor Relations, the Organization protested the action taken by the Carrier and filed formal claim. On June 10, 1953 the Supervisor, Labor Relations acknowledged receipt of claim and set date for hearing which was held on June 17, 1953, at which time Carrier introduced report of its representative, dated May 15, 1953, covering survey made at Wilmington. Claim was denied by the Supervisor, Labor Relations in his letter of July 17, 1953. The case was then appealed to and subsequently denied by the highest officer to whom appeals
was in harmony with the ebb and flow principle as it has been applied numerous times by the railroads in similar situations. Also, the Company has shown that the history of the work in question establishes that it was indigenous to the Agent's position who performed it himself during periods of low-volume business or performed it assisted by a clerk-stenographer during periods of high-volume business.
Further, the Company has shown that it tried to handle this matter in an orderly way with the Organization by negotiating inclusion in a small points Memorandum Agreement. In the face of the obvious fact that there was not sufficient work at Wilmington to justify the retention of the clerkstenographer position, the Organization steadfastly refused to negotiate the matter. As evidence of the Organization's error in this respect,.the Company has shown that subsequent to the instance in question the Organization has negotiated Phoenix, Arizona, into the list of small points covered by the Memorandum Agreement, dated December 2, 1952. Finally, the Company has shown that awards of the National Railroad Adjustment Board clearly set forth the correctness of the principle under which Management proceeded in this case.
In view of the fact that the Organization has been unable to show any violation of the rules Agreement in the matter complained of, there can have been no wage loss incurred by any clerical employe. Therefore, its claim is without merit and should be denied.
All data presented herewith in support of the Company's position have heretofore been submitted in substance to the employe or his representative and made a part of this dispute. ,
OPINION OF BOARD: The Carrier has maintained an Agency in charge of an Agent at Wilmington, North Carolina, since April 1, 1907. At various times assistance was needed and other positions created while the need existed. The last of such situations occurred with the advent of the Korean situation and a Clerk-Stenographer position was established on September 11, 1950, and because of a decrease in work was discontinued on May 7, 1953. During that interval on the 2nd day of December, 1952, the Company became a signator to an agreement with the Clerks' Organization which became effective on January 1, 1953 and which, among other provisions contained the following:
"CONCERNING THE PERFORMANCE OF WORK
AT SMALL POINTS
"It is hereby understood and agreed by and between The Pullman Company and its clerical, office, station and storehouse employes, represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers. Express and Station Employes, that employes not covered by the working Agreement, effective January 1, 1953, who perform a certain amount of work of the craft or class of clerical, ofce, station and storehouse employes in connection with their regular duties at the points listed herein where no Group 1 or Group 2 positions exist will be permitted to continue to perform such work for so long as the present conditions exist.
"It is further understood and agreed that in the event of an increase in the work of the craft or class of clerical, office, station and storehouse employes at any of the above-listed points to the extent that such work will constitute a position (4 hours or more per day), the necessary position or positions will then be established in accordance with the provisions of the working Agreement.
We must note here that the position of Clerk-Stenographer was an active position on the date of the signing of the main agreement, the Memorandum of Agreement of December 2, 1952, the date the main agreement became effective, namely, January 1, 1953 and the date of the February 27, 1953 Memorandum.
After an investigation by the Carrier revealed that the clerk had only 90 minutes of work per day, the position was abolished on May 7, 1953 and the work which the Clerk was performing was transferred to the Agent. Grievance was filed by the Organization and a hearing held on the grievance on June 17, 1953. Part of the transcript of the hearing reports the following statement by Carrier representatives:
had ignored the fact that there was no clerical position logically to be' established in Wilmington. It is certainly not contemplated by the parties in the negotiation of the Clerks Agreement that any remnant of clerical work arising at a point in itself justifies the establishment of a clerk's position. Management desired under the reorganization at Wilmington to abolish the clerk's position which had been let stand in Wilmington in error and for that reason desired to reopen the small points Memorandum Agreement for the inclusion of Wilmington among the points listed therein.
"Management has felt that the Organization cannot arbitrarily refuse to reconsider a question which is of vital concern to the efficient operation of The Pullman Company, which responsibility is jointly borne by the Organization and Pullman Management alike when it pertains to the establishment or abolishment of clerical positions. In an effort to persuade the Organization that it ought to give favorable consideration to including Wilmington among the small points, a careful analysis was made of the clerical work to be performed in Wilmington · " * ."
Many awards of this Board hold to the principle that the integrity of agreements in writing requires that they be enforced in accordance with the expressed meaning when that can be determined from the agreement itself. It must be conclusively presumed that all contentions and understandings of the parties either in agreement or disagreement have been merged into the agreement as negotiated, written and executed by the parties. Where the language is clear and unambiguous the terms of the agreement must be enforced as expressed by the parties.
If the Carrier had abolished the position of clerk in its entirety no violation could have been presented. But in this case 90 minutes of work per day was transferred to the Agent, who, of course, had been performing that work at the time the Clerk position was created.
The Board has ruled so often that Scope provisions such as the one negotiated herein have abrogated the doctrine of "Ebb and Flow" that the rulings are apparently absolute. Award 3003 among many others holds that the Carrier clearly had the right to reduce its forces by abolishing positions provided it did so in accordance with the provisions of the controlling agreement. Award 3563 along with many others since that time had for review the same scope provision as in the instant case that "no position shall be removed from this agreement except by agreement," and the holding of the Board was that a violation of the contract occurred when duties under the agreement were assigned out of the agreement. (Awards 6141, 6357, 6444, 7047, 7048, 7129, 7168, 7372, 8079, 8234. 8236, 8289, 8330).
The Board is of the opinion that the Small Points Memorandum cannot be of any assistance in this matter because the small points are specifically named therein and Wilmington, North Carolina, is not included. This memorandum further provides that a Clerk's position will be established in the event that work covered by the Clerks' Agreement which the Agent was performing exceeded four hours pay day. The Board holds that this provision applies to the creation of Clerk's position and cannot be used as a basis for the abolishment of the position when any work remains which must be transferred to employes outside the Clerks' Agreement. 8382-15 619
The Board is of the opinion that the Memorandum of February 27, 1953 is one covering the adjustment of positions between employes covered by the Clerks' Agreement and in no way refers to transferring work outside of the positions so covered.
The Carrier requested that the Organization negotiate this matter and include Wilmington, N.C., into the Small Points Agreement. The Organization refused such negotiations. Recently, however, upon request and by negotiation, Phoenix, Arizona, was added to the Small Points Agreement. Two hours of work per day were involved in that negotiation. Here there was some dispute as to the amount of work involved but the Carrier contends that only 90 minutes per day was involved.
The refusal of the Organization to negotiate this matter after request was not proper. The request was made before the date of May 7, 1953, the date upon which the position was abolished. The Board is of the opinion that the refusal of the Organization to negotiate shall not be used as a basis for an abrogation of the express terms of the agreement entered into by the parties but the action of the Organization shall preclude the payment of money as requested in part (3) of the Statement of Claim.
We find a violation of the Agreement in claims (a) and (b) but for reasons herein expressed make no allowance as requested in (c).
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing theron, and upon the whole record and all the evidence, finds and holds:
That the Carrier and Employe involved in this dispute are respectively Carrier and Employe 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
That the Carrier violated the Agreement in the matter of Claims (a) and (b) and no money award will be made in (c) in accordance with this Opinion.
SPECIAL CONCURRING OPINION TO AWARD NO. 8382,
DOCKET NO. CL-8199