NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Ralph D. McMillen, Referee
PARTIES TO DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
PERE MARQUETTE DISTRICT
STATEMENT OF CLAIM:
Claim of the General Committee of The
Order of Railroad Telegraphers on the Chesapeake and Ohio Railway
Company, Pere Marquette District, that:
1. Carrier violated and continues to violate the agreement
between the parties when, commencing on April 19, 1955, without
conference or agreement, it removed the work of processing and
handling l.c.l. freight way bills and l.c.l. freight at twenty-four
stations on the Grand Rapids and Saginaw Divisions and assigned
this work to persons not covered by the agreement.
2. Carrier shall be required to restore this work to employes
covered by the agreement; and
3. Carrier shall compensate the occupant of the Agent's
position at each station involved in accordance with the call rule
on each day the violation occurs commencing April 19, 1955 and
continuing thereafter until the violation is corrected.
EMPLOYES' STATEMENT OF FACTS:
The agreements between
the parties are available to your Board and by this reference are made
a part hereof.
The stations involved are on the Grand Rapids and Saginaw Divisions
of the Carrier and are all in the State of Michigan. The stations are as
follows:
Allegen Grand Haven Kent City
Alton Grandville Lake Odessa
Bailey Grant Lowell
Belding Greenville McCords
Casnovia Hamilton Newaygo
Clarksville Hudsonville Portland
Elmdale Ionia Sparta
Fremont Zeeland White Cloud
[1026]
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6887- "Claim (b) is denied by reason of insufficient showing that
the clerk on duty at the time in question could not have
weighed these two revenue cars."
7211 - . the record shows no financial loss to any of the
'[claimants."
7212- "However, the record does not show that claimant has
suffered any loss because the position was not bulletined
promptly, and no rule is cited which entitles him to the
additional compensation claimed."
7241- "Even if we concede that Section 6 was applicable in this
situation, there was no violation of the rule which resulted in a loss to the claimants."
7309- "The assessing of the penalty claimed would be an extremely drastic measure to be invoked and one of doubtful legality under the rules of the agreement, as no
specific rule can be used as a basis for such an award."
In summary, Carrier has proved:
1. The dispute here before your Board should be held in abeyance
with no decision on merits until the interested third party has been notified and afforded an opportunity to protect its interests.
2. The alleged claims and/or grievances contemplated in the dispute here before your Board have been presented initially in a manner
other than that which has been agreed upon as covering the presentation
of ALL CLAIMS AND GRIEVANCES. Petitioner has declined to correct
fatal defects in this respect in handling on the property. It follows that
no dispute growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions
can be properly before your Board for adjudication at this time. The first
two parties to this dispute have so agreed.
3. The Telegraphers' agreement has not been violated as alleged by
petitioner.
4. The work described in Item 1 of petitioner's claim can not be
"restored" to the Telegraphers craft when and where it has never
reposed exclusively within that craft, and no claim for "restoration" was
presented on the property in any event, a prerequisite to handling by
your Board.
5. Payment of the "call" penalty would not be in order in any event.
In fact, no penalty at all would be in order had the agreement been violated as alleged.
All data presented herewith have been placed before the employes
in handling this case on the property.
(Exhibits not reproduced.)
OPINION OF BOARD:
The claim of the Organization that the Carrier violated and continues to violate the Agreement between the parties
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1.042
when, commencing on April 19, 1955, without conference or agreement,
it removed the work of processing and handling l.c.l freight waybills and
l.c.l. freight at twenty-four stations on the Grand Rapids and Saginaw
Divisions and assigned this work to persons not covered by the Agreement.
The Organization states that from the time agencies were first established at twenty-four stations, the work of billing outbound l.c.l. freight
and the work of processing the inbound l.c.l. freight waybills, into bills
for the consignee, known as "expensing way bills," was performed by
the occupant of the agents position. Further
"The prime factor in bringing about this change was the
adoption by the Carrier of a different method of transporting
l.c.l. freight to and from these stations. Instead of hauling or
transporting l.c.l. freight on trains, the Carrier contracted with
an outside trucking company doing business under that name
"Masselink Brothers Trucking Service" to transport less-thancarload freight between the Carrier's Grand Rapids freight house
and any consignor or consignee located within the pick-up and
delivery limits of the stations listed above. The contract also included transporting l.c.l. freight to and from the Grand Rapids
freight house and the freight house of the Carrier and any of
these stations. This means that employes of the trucking company
receive the freight at the Grand Rapids freight house and transport it directly to the business establishment or home of the consignee and, in turn, receive freight from the customers and
transport it to the Grand Rapids freight house.
"The expense bill is made at Grand Rapids by a clerk; the
trucking company employe secures the signature of the consignee
on the receipted copy of the expense bill, collects freight charges
due, if any, and after completion of his tour in any one city
delivers the copies of the expense bills, together with any collections, to the agent at the station. The agent includes these items
in his station accounts the same as if it had been handled in the
usual manner. Outbound freight received by the trucking company employes is transported to Grand Rapids where it is waybilled to its destination by clerks; the way bills are headed as
from the station where the freight originated and a copy of this
way bill is sent to the agent at that station and is included and
carried in his station accounts the same as if it had been handled
in the usual manner.
"All the expensing and way billing performed under this program is handled in the name of and credited to the station where
the freight originates or terminates. It is part of the station work
of the station to which it is credited."
The Employes rely primarily on the Scope Rule of the Agreement
to support their position. Scope Rule reads:
"RULE 1-SCOPE
"(a) These rules shall govern the hours of service, working conditions and compensation of the following classes of em
ployes:
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Agents
Agent-Operators (Agent-Telegraphers and AgentTelephoners)
Ticket Agents (as listed in wage scale)
Agents (small non-telegraph or non-telephone)
Chief Operators
Operator-Clerks (telegrapher-clerks and telephonerclerks)
Operator-Cashiers
Operator-Levermen
Operator-Bridgetenders
Operators (telegraphers and telephoners but not
including telephone switchboard operators)
Levermen
Drawbridge Tenders
Block Operators
Tower and Train Directors
Staff men
Any combination of two or more of the above
classifications.
Occupants of any other positions listed in wage
schedule.
"(b) As used in this agreement, the word 'employe' shall be
understood to include all employes of the classifications mentioned
in paragraph (a) of this rule unless specific classifications are
designated; and the word 'station' refers to the location at which
employes perform service."
The Carrier raised the issue that there is an Agreement between this
Carrier and the Brotherhood of Railway and Steamship Clerks, Freight
Handlers, Express and Station Employees, who are interested parties
to the dispute here before the Board, and in accordance with Section 3,
First (j), Railway Labor Act, should be notified by the Third Division,
National Railroad Adjustment Board and afforded an opportunity to
protect their interests. This has been done.
(The Carrier disputed the actual number of stations involved in this
dispute, that it should be 19 rather than 24. The Organization "agreed
in principle" that there are actually 19 stations involved.)
The Organization states:
"Starting from the time agencies were first established at
the above stations, the work of way billing outbound l.c.l. freight
and the work of processing the inbound l.c.l. freight waybills
into bills for the consignee, known as 'expensing way bills', was
performed by the occupant of the agent's position."
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The Carrier rebutts this statement as follows:
"1. Employes of any kind at 19 stations instead of 24 stations
are involved in this dispute.
"2. Carrier's Exhibit No. 3 specifically shows that clerks were
employed at seven of these 19 stations and were performing
the work here involved immediately prior to its being transferred to other clerks at Grand Rapids.
"3. Carrier's records covering the other 12 stations do not go back
to the time these stations were established. Our records, in
the form of station files going back as far as twenty years in
some cases indicate that clerks have been employed at the
following of these 12 stations, Grandville, Lake Odessa, Lowell, Newaygo and Portland. Our agreement files, going back
to 1911 in the case of the clerks, indicate that clerks were
employed at two of these (other twelve) stations, Portland
and Newaygo sometime on or before September 1, 1911. These
files are incomplete as they do not indicate positions within
the Clerks' scope such as station helpers and warehousemen.
From these data it is clearly evident that now and/or some
time or other in the past, employes of the clerical group have
been employed at twelve stations here involved. It must be
presumed that employes of the clerical craft perform the
work embodied within their scope rule when employed at any
station. Carrier submits the work here in dispute is specifically outlined in the Clerks' agreement."
It seems clear to the Board that agents have not performed the work
involved here to the exclusion of the Employes of the clerical craft.
The Employes rely primarily on the Scope Rule of the Agreement
to support their position. We believe the position is well taken in Award
6824:
"Since the Scope Rule of the effective Agreement is general
in character and does not under take to enumerate the functions embraced therein, the Claimants' right to work which they
contend belonged to them must be resolved from a consideration
of tradition, historical practice and custom; and on that issue the
burden of proof rests upon the Employes."
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
That the Agreement has not been violated.
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AWARD
Claim denied in its entirety.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 17th day of December 1962.