THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Chesapeake District)
STATEMENT OF CLAIM: Claim of the system Committee of the Brotherhood that:
OPINION OF BOARD: In Award 8379 the Division ruled that the Telegraphers' Organization had third-party interest in the instant dispute and was therefore entitled to notice and opportunity to be heard as required by the Federal Courts' interpretation of Section 3, First (j) of the Amended Railway Labor Act.
The Telegraphers' Organization was duly notified on July 2, 1958 of a hearing to be held on July 30, 1958, and on July 9th by letter said Organization advised that neither the Organization nor the employes it represents are involved in the case before us. Said hearing was held as scheduled and the Telegraphers' Organization did not appear. The case is now before the Division on its merits.
The essential facts are not in dispute. For several years prior to December 31, 1948, there had been a Clerk position at Pratt, West Virginia, on the Carrier's east-west main line. The position was occupied by the claimant herein and was covered by the Clerks' Agreement. Effective January 31, 1948, that position was abolished.
charging that the abolishment of this position and the performance of the work formerly assigned to the Clerk by the Agent constitutes a violation of Rule 1 of the applicable Clerks' Agreement No. 7 dated "effective January 1, 1945," as amended. The Current Agreement is No. 8, "Effective November 1, 1955."
Claim was handled on the property up to and including Carrier's Assistant Vice President-Labor Relations, who declined this claim as lacking in merit on October 26, 1949.
The claim was subsequently rehandled, and the last correspondence in reference thereto is dated August 11, 1953.
Thereafter, on October 5, 1955, the Employes served notice of intent to file an ex parts submission with this Division.
In this case we are dealing with and interpreting Rule 1(b) and Rule 65 within the framework of those awards previously adopted by this Board in similar situations. Rule 1(b) as negotiated permits no removal of a position and there is no evidence in the record to show that the Carrier made any effort to conform to Rule 65.
The record contains a copy of a letter written by the Carrier's Superintendent to the Division Chairman which reads:
Certain work performed by the clerk was still required after the position was abolished, was performed by the Agent subsequently, and there was no agreement between the parties about the reassignment of the work which was performed by the Clerk. The record contains no information as to whether or not the Clerk performed any duties which he performed to the exclusion of the Agent.
The Organization asks (a) that the Carrier be held in violation of the Agreement, and (b) that Claimant be returned to the position, compensated 8674-4 684
for all wage loss sustained and that other employes displaced from their positions because of this abolishment be accorded like treatment.
There is no doubt that the revenue of the Station decreased and that the volume of work performed at the Station decreased. There further is no doubt that work performed by the clerk was, after the abolition of the clerical position, performed by the Agent.
There further is no evidence that any work performed by the Clerk was his exclusive assignment.
The Board has recently ruled that where some work which the Clerk had performed exclusively remained and was assigned to the Agent it constituted a violation of the Clerks' Agreement and the Carrier had no right to abolish the clerical position-Award 8500.
In previous Awards (5785, 5790, 7372) interpreting this same rule or similar rules the Board held that work is the essence of positions, and said rule prohibited the Carrier from acting as it did in the instant case. Under these awards of the Board which are predicated upon others of this Board (Awards 1314; 3563; 5785; 6141; 6444) the interpretation of the language in the Scope Rule quoted above compels the conclusion that the abolition of the clerical position herein and the assignment of work of that position to the Agent constituted a violation of that rule. See also Awards 6357, 7047, 7048, 7129, 7168, 7382, 8079, 8234, 8236, 8289, 8330, 8382. Award number 8382 was released by this referee. Part of that award reads:
The Railway Labor Act provides for "the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." No time limit is stated by the Act nor is there any in the contract before us.
The record of the case actually displays an unusual and unwarranted delay (filed February 4, 1949, declined by Carrier's highest authority October 26, 1949, and not appealed to the Board until October 5, 1955). 8674-5 685
The Board in numerous cases has refused payment of back pay where the delay in presenting the matter to the Board is unreasonable, significant, unconscionable, or where the doctrine of laches is invoked. In some manner, however, almost universally, that delay was noted and advanced as a defense by the Carrier either on the property or in the presentation of the question to the Board. In this instance the record discloses no mention whatsoever of the defense or claim that any monetary penalty, if a violation be found, should be refused because of the failure to expeditiously prosecute the claim. This was submitted to the Board for the first time by the Carrier representative on the Board in his presentation to the Board. The Board must, under the rules established by the Board in numerous awards, therefore disregard this as a defense and not consider it herein.
As to the claim for compensation for Mrs. Grace Hammar, the occupant of the clerical position when it was abolished, the Board rules as it has on innumerable occasions, that an employe adversely affected by the violation of a rule must be made whole for whatever monetary loss was suffered because of such violation. Punitive damages are not ordinarily approved by the Board. Accordingly, the Board rules that Mrs. Grace Hammar is entitled to compensation for only those specific net losses which she is able to establish.
That part of the claim relative to "other employees displaced" is herewith denied because they are "unnamed" and do not in this record appear identifiable. (Awards 8203, 8124 and 8330)
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 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