THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that the Carrier violated, and continues to violate the current Clerks Agreement, when on and since July 20, 1954, it abolished Position No. 3, Clerk, Carbondale Coal Billing Station, while all the duties and responsibilities thereof remained to be performed and further violated the said Agreement by assigning the said duties and responsibilities to non-employes of the Carrier (Weighmasters at Hudson Coal Company breakers), and to an employe not subject to the scope and application of the Clerks' Agreement (Coal Billing Agent, J. Giblin), and that
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that the Carrier violated and continues to violate the current Clerks' Agreement when, on and since July 20, 1955 it abolished Position No. 2, Clerk, Carbondale Coal Billing Station, while all the duties and responsibilities thereof remained to be performed and further violated the said Agreement by assigning the said duties and responsibilities to non-employes of the Carrier (Weighmasters at Hudson Coal Company Breakers) and to an employe not subject to the scope and application of the Clerks' Agreement (Coal Billing Agent, J. Giblin), and that
EMPLOYES' STATEMENT OF FACTS: Prior to July 20, 1954, there existed, among five (5) others, a position designated as Clerk in the Coal Billing Office, Carbondale, Pa., which was regularly assigned to Clerk Harold W. Reynar, working hours 8:00 A. M. to 4:00 P. M., daily, except Saturday and Sunday, at a rate of $273.15 per month; the duties and responsibilities of this position were as follows:
Subsequent to the abolishment of Position No. 3, Clerk, Carbondale Coal Billing Office, the duties and responsibilities of this position, as listed above, have been assigned to non-employes of the Carrier (Weighmasters at Hudson Coal Company breakers), and to an employe not subject to the scope and application of the Clerks' Agreement (Coal Billing Agent, J. Giblin).
This case is exactly the same as Case 9:46-C, filed with Mr. F. L. Hanlon, then Assistant to General Manager for Personnel of D. & H. R.R. Corpn., on November 20, 1946 (abolishing two positions of clerk in Coal Billing Office at Carbondale, Pa. and assigning the duties and responsibilities thereof to employes of the Hudson Coal Company, who were not covered by Clerks' Agreement).
Agent J. Giblin) performed some of the duties of the abolished positions, attached marked Exhibit "A" is statement of former Coal Billing Agent James Giblin in connection with abolishment of positions in the Coal Billing Office. It will be noted that Mr. Giblin states that the work performed by him has not changed since he became Coal Billing Agent in 1945. Mr. Giblin retired January 15, 1958.
It will be noted that the claim in this dispute involves request that two positions be re-established. Even in cases where a violation of the agreement has been found in the assignment of work, it being the carrier's position that no such violation can be found in the instant dispute, the Third Division has recognized that it has no authority to require a carrier to establish or re-establish a position. See the following awards:
It is the carrier's position that-(1) the claim is barred because of failure of the employes to handle it in accordance with the time limit provisions of the Handling Claims and Grievances Rule; and (2) if for any reason claim is decided on its merits, it should be denied because no work has been removed from the scope of the Clerks' Agreement.
Management affirmatively states that all matters referred to in the foregoing have been discussed with the committee and made a part of the particular question in dispute.
OPINION OF BOARD: The case, in this instant, is based on the claim by the Organization that the Carrier violated and continues to violate the current Agreement when on and since July 20, 1954 the Carrier abolished Position No. 3, Clerk, Carbondale Coal Billing Station. The last occupant 10864-10 358
of Position No. 3 was Mr. Harold W. Reynar (Claim No. 1) and on July 20, 1955 the Carrier abolished Position No. 2, Clerk, Carbondale Coal Billing Station. The last occupant of Position No. 2 was Mr. Claude Rehkop (Claim No. 2). Further that the duties and responsibilities of the abolished two positions were assigned to "non-employes of the Carrier (Weighmasters at Hudson Coal Company breakers), and to an employe not subject to the scope and application of the Clerks' Agreement (Coal Billing Agent, J. Giblin)." Also in Claim No. 1 (b) and Claim No. 2 (b) the Organization makes claim for "All other employes who have suffered monetary loss by virtue of this violation, either through displacement or otherwise, shall be fully compensated."
The Organization contends that Case No. 9.46-C was exactly the same as the case with which we are confronted.
'THE DELAWARE AND HUDSON RAILROAD
CORPORATION
The Carrier's response to this matter is that Case No. 9.46-C was settled in 1947 and denies that the facts involved in Case No. 9.46-C were in any way similar to the facts in this case. We are limited in that we do not have any information regarding Case No. 9.46-C other than the reproduced material above which is not adequate regarding pertinent facts upon which we could form an opinion regarding the contradictory contentions of the parties on this matter.
The Carrier contends, and it has not been disputed, that early in 1954 a survey was conducted of the activities and functions of the Coal Billing Office at Carbondale, Pennsylvania. The survey revealed that outmoded methods were being used, for example, the hand insertion of approximately 800 sheets of carbon paper per working day. Also that certain forms which were being prepared could be eliminated and that an I.B.M. Billing Machine, when used in conjunction with a revised form would further reduce the clerical work involved at this office. The Carrier, further contends, that all the clerical Employes in this office did substantially the same work. The specific forms abolished were Form 1821 and Form 1561.
On July 8, 1954 the Superintendent of the Pennsylvania Division Mr. M. J. McDonough, advised the General Chairman of the Clerks Organization that Position No. 3, Clerk, would be abolished July 21, 1954.
Claim No. 1 of this dispute which is based on the abolishment of Position No. 3, Clerk, Carbondale Coal Billing Office, was first presented to the Carrier on May 17, 1956.
On July 8, 1954 Superintendent M. J. McDonough wrote to the General, Chairman K. D. Shaw, as follows:
On February 16, 1955 Superintendent McDonough advised the General Chairman that a further reduction of the clerical force at the Carbondale Coal Billing Station would be made. The Carrier further contends that inasmuch as a new I.B.M. Billing Machine had been installed in the office to replace the outdated Elliot Fisher Billing machines and the new "fanfold" form which eliminated several duplicate reports and the necessity of handling multiple carbons that it became possible to further reduce the clerical staff. On July 7, 1955 the Superintendent advised the General Chairman that Position No. 2, Clerk, would be abolished July 21, 1955.
It is the opinion of this Board that after a thorough examination of submissions that the Organization has not demonstrated as claimed "that all the duties and responsibilities thereof remained to be performed and further violated the said Agreement by assigning the said duties and responsibilities to non-employes of the Carrier (Weighmasters at Hudson Coal Company breakers), and to an employe not subject to the scope and application of the Clerks' Agreement (Coal Billing Agent, J. Giblin). "
The Organization has submitted evidence regarding the number of cars of coal billed from 1954 to 1957, which is of interest, but in no way conclusive.
The Petitioner has simply failed to prove that which it bad the burden of proving to support the alleged violation and therefore this Claim must be denied. Award 10067.
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 Labor Act, as approved June 21, 1934 ;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and