STATEMENT OF CLAIM: This is a claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On November 13, 1945, a position of Warehouseman-Clerk at Hayward was advertised for bid on Clerks' Circular No. 199-45. (Employes' Exhibit "A") This position was assigned to Mr. E. M. McCasey on November 23, 1945. The position was abolished effective upon completion of shift, February 23, 1946, (Employes' Exhibit A-1) and the work thereof was subsequently performed by the Agent, an employe outside the scope of the Clerks' Agreement. Claim with respect to this violation was filed and progressed up to and including the Assistant to General Manager, the highest officer of the Carrier to whom claims are appealed, and he denied this claim, (his Case No. 328'5) after conference, under date of February 28, 1949.
The occupant of the position of Warehouseman-Clerk at Hayward was required to perform various duties, among which were the following:
Insofar as the instant claim constitutes an attempt to acquire for clerical employes the exclusive right to perform all clerical work at Hayward to the exclusion of the Agent, it must be denied in line with the firmly established principle prevailing throughout the railroad industry which recognizes the historic right of employes of the telegrapher's craft to perform clerical work incidental to their telegraphic duties. As stated in Third Division Award 615:
On this property, the history of telegraphers performing clerical duties has conformed to the national pattern which your Board took cognizance of in Award 615. The first telegraphers' agreement was effective on this property in 1914 and telegraphers have been performing clerical duties, not only since that time, but actually since operations began in 1910. Carrier cannot dispense with the Agent-Telegrapher at Hayward as long as there remains a necessity for telegrapher's work. This necessity still remains even though the installation of Traffic Control System has severely reduced the amount of this work. There is nothing in the Clerks' Agreement nor in the decision of the Third Division which requires Carrier to remove work to which telegraphers have established rights of performance from a position within the scope of the Telegraphers' Agreement and assign such work to clerical employes who have never performed these duties and, thus, have not established exclusive rights thereto.
To summarize, the position of Bill Clerk at Hayward was reestablished under the terms of the letter agreement of July 2, 1954 and work was assigned to that position as required by the letter agreement. The Organization now seeks, by means of the instant claim, to force Carrier to assign additional duties to the clerical position, thereby removing said duties from the Agent-Telegrapher position. This it cannot do for two reasons: first, because the Organization, having invoked its rights under the letter agreement of July 2, 1954, cannot now escape its obligations under that agreement and second, because the work subject of this dispute is work which clerical employes have never performed and to which they have never acquired rights of performance. For the reasons stated, Carrier urges that the instant claim be denied.
OPINION OF BOARD: This controversy has a long history, but we hope its future will be brief.
At the outset it is useful to state the extent of the claim as presented in the original submissions of the parties. Although the "Statement of Claim" is broad and general, the actual controversy involved the alleged impropriety of not assigning yard checks ("demurrage checks" in the Carrier's version) 9441-22 577
at Decoto and Carpenter, locations serviced by the Carrier's Hayward, California agency. That is what the parties talked about and wrote about on the property and that is the extent of the controversy we will decide. The allegations as to the performance of routine clerical work at Hayward came belatedly in the "Employes' Reply to Carrier's Statement" some six months after the filing of the Submission. We do not believe the issues raised at that time are properly before us nor was there supporting evidence.
The Carrier and the Organization had several outstanding disagreements as to the proper sphere of work covered by their Agreement. Apparently they treated Award 5790 as a pilot case. They entered into a letter agreement dated duly 2, 1954 to dispose of the accumulated claims in the light of the Award. The agreement provided in part:
The parties also added Rule 40(f) to their agreement covering the abolishment of positions. It provided in part:
A joint check was made of the Hayward Agency (which includes Decoto and Carpenter) which showed that the Agent was performing about nine and a half hours of clerical work. Accordingly a position of "Bill Clerk" was "reestablished" at Hayward in accordance with the letter agreement. Its hours were 11:00 A. M. to 8:00 P. M.
However, there was disagreement about the Carrier's desire to have the Agent continue certain work prior to those hours.
The correspondence between the parties indicates that the work in controversy concerned "making check of cars at Carpenter and Decoto each morning." Carrier's Submission also characterizes the disputed work as "demurrage check".
Prior to 1954, the Hayward Station had been a one man agency except for brief periods. For three months ending in early 1946 there had been a Warehouseman-Clerk position. For four months toward the end of 1948 there had been a Bill Clerk position. These were the only Clerk positions existing at Hayward before the 1954 letter agreement was made.
Prior to 1952 there was no yard work at Carpenter because the industry which occasioned it was not established there before that date.
The Organization contends that the Bill Clerk performed Yard checks at Decoto before the abolishment of that position and that such work there and similar work performed at other locations serviced by the Hayward Agency are properly the work of the "reestablished" Clerk's position. It argues that this is so because that is generally Clerk's work within the Scope Rule and because it was the type of work performed in the "abolished position" which was "reestablished" under the letter agreement.
Carrier has two alternate theories. One is that "the abolished position will be reestablished" as used in the letter agreement means essentially the same thing as "the position will be reestablished as it was constituted im. mediately prior to its abolishment" in Rule 40(f) of the supplement to the main Agreement entered into at the same time. In answer to the general claim that the yard checks are work of the type performed by Clerks, Carrier responds that all clerical work is not the exclusive province of employes covered by the Organization's agreements in the light of the long history that such work was performed by Agents and Agent-Telegraphers.
We do not believe that this general issue is before us. The parties by their agreements and conduct have limited the issues to those posed by application of their settlement agreements subsequent to Award 5790.
Award 5790 (Wenke) held that the "ebb and flow" doctrine could not operate to sanction the transfer to an Agent of work which had been performed by a Clerk because of the contractual provision banning "removal of positions from the application of these rules." A critical factor in the case was that the work in dispute had been performed by the Clerk. 9441-24 579
It was this Award that established the basis of the July, 1954 agreements between the parties. Of course, it did not limit their agreements; but it does shed light on the principles embodied in the agreements.
The letter agreement of July 2, 1954 is also quite clear. Where, as here, a joint check discloses that three hours of clerical work is being performed by someone other than a Clerk at specific places where Clerk's jobs had been abolished "the abolished positions will be reestablished." (Emphasis added.)
The parties could have said that a clerical position will be "created" or "established." But they said reestablished which denotes the entention of reviving the position as it had existed when it was established previously.
The letter agreement went on to provide that if the first joint check reveals that fewer than three hours of clerical work is being performed, the claim would be withdrawn and "handled for the future under Rule 40(f).'
Part o of Rule 40(f), quoted above, provides that after the abolishment of a Clerk's- position, the transferred remaining work is subject to a check at the request of the General Chairman. If the check reveals that more than three hours of such clerical work is being performed per day, "the position will be reestablished as it was constituted immediately prior to its abolishment . . . "
The letter and Rule 40(f) provisions are essentially the same. Rule 40(f) is somewhat more precise and more limited. We need not decide how much more limited or whether the Rule 40(f) limits (especially as to the words "immediately prior") apply equally to the situations covered by the letter agreement.
The Rule merely reenforces the conclusion derived from the letter agreement and Award 5790 that the test to be applied is whether the disputed work had been part of the abolished position.
With this test in mind, we turn to the detailed evidence of the work performed by the Bill Clerk.
The work specified was "assist[ing] agent with regular station work", "billing" and "sealing of cars, etc. at Decoto and other points handled by Hayward Station."
The only part of the description significant for our purposes is the "sealing of cars, etc. at Decoto and other points."
A more detailed description of the Bill Clerk's work is contained in a description (dated in 1949) provided by the last incumbent. It reads:
The only mention of this statement of work of the kind in dispute here is "sign and seal the cars loaded." The description shows that such work was a very small, perhaps infinitesimal part, of the duties of the position. Moreover, it is not demonstrated that the signing and sealing were more than a routine physical act not requiring clerical checking at that point.
This is decidedly inadequate proof that the claimed yard check had been performed at Decoto by the Bill Clerk.
The claim as it relates to Carpenter was based upon the theory that as this type of work, i.e., yard checks, had been performed by the Bill Clerk at "Decoto and other points handled by Hayward Station", such work at Carpenter should be made part of the reestablished job. It could be argued that the bulletin description encompassed the work and so covered such work at "other points." It might also be argued that the purpose of the agreement requires the inclusion of work of the same kind as that performed before abolition even though arising after abolition.
We need not decide such an issue because the factual basis (performance of the type of work elsewhere) which would make necessary a resolution of the issue is not present in this case.
We conclude that Claimant has not proved the facts essential to a sustaining award.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: 9441-26 581