THIRD DIVISION
(Supplemental)
1. Carrier violated rules of the currently effective agreement dated September 1, 1951 when on May 15, 1958 it abolished position of Assistant Agent (Clerk) at Milford, Virginia and unilaterally assigned the work normally attached thereto to employes without the scope of the Brotherhood's agreement.
EMPLOYES' STATEMENT OF FACTS: May 19, 1958 Carrier issued Bulletin No. 1 abolishing position of Assistant Agent (clerk) at Milford, Virginia. The position was then occupied by T. B. Allen with the following duties assigned thereto and approximate time required to perform each unit of work:
All work heretofore assigned to the position of Assistant Agent (Clerk) was unilaterally assigned by management to the Agent and train service employes, positions without the scope of the Brotherhood's agreement with the Carrier.
On May 19, 1958, formal grievance was filed with Carrier protesting management's action and claims filed on behalf of employes affected. See Employes' Exhibit A.
The employes' protest and claim was denied by Superintendent, Mail, Express and Agencies, Mr. P. E. Wood on May 19, 1958. See Employes Exhibit B. 11586-15 $g$
Employes have not proved that the Assistant-agent performed any duties to the exclusion of the Agent. The fact is clear that the Agent position was the source of all the work at Milford, and the Assistant-agent, as its title implies, merely assisted the Agent. The Clerks never gain the exclusive right to work which is incidental to the primary duties of an Agent. Especially is this true where, as here, the parties' Agreement specifically excludes such clerical work from the coverage thereof. The Carrier is free to abolish a position when sufficient work no longer exists to warrant the continuance thereof. Award 896.
The Carrier regrets the fact that the volume of business at Milford no longer requires a clerk. It wishes that the volume of business there required the use of many clerks; however, to a large extent the present economic plight of the railroad industry is the result of unrealistic labor practices that have been imposed through the guise of agreement interpretations. Award 7166. The Carrier trusts that the Division will respect the clear language of Rule 1(a) under which the parties excepted incidental clerical work from the coverage of the Clerks' Agreement. This claim is based upon erroneous reasoning and a false assumption, that the Assistant-agent performed duties other than those which were incidental to, and also performed by, the Agent. There was no violation of the Agreement, thus we submit that the Division should deny this claim as lacking in merit.
The Carrier affirmatively states that all matters referred to in the foregoing have been discussed with the Employes and made part of the particular issue in dispute.
OPINION OF BOARD: The issue is whether Carrier violated the Scope Rule of the Agreement when it unilaterally abolished the position of Assistant Agent (Clerk) and assigned the duties of that position to the Agent and train service employes which latter positions were not within the Scope of the Agreement. There is no material factual dispute.
Petitioner contends that "Positions or work coming within the scope of this agreement belong to the employes covered hereby and nothing in this. agreement shall be construed to permit the removal of positions or work from the application of these rules . . except by agreement between the parties signatory hereto." Therefore, Carrier's unilateral actions, set forth above, violated the Agreement.
Carrier contends that the "ebb and flow" theory justified its unilateral actions.
The record is clear that at the time the Scope Rule was agreed upon, Clerks were performing the work in question.
In prior Awards of this Board it has been established that when the Scope Rule provides that "positions or work" may not be removed from the Agreement except by negotiation, a Carrier's unilateral action abolishing a "position" and assigning the "work" to another class or craft is a violation of the Agreement. Awards Nos. 6937, 7129, 7168, 7349, 7478, 11563. The cited Awards support the finding that in those agreements in which: (1) the Scope Rule specifically includes "positions or work;" (2) the position was assigned to and the work was being performed by an employe covered by the agreement at the time it was executed by the parties; and, (3) the agreement provides that nothing therein shall be construed to permit the removal of the "positions or work" from its application, except by agreement between the parties -then -a carrier that unilaterally abolishes such a position and assigns the work to others, violates the agreement. Further, the cited Awards in effect hold that, under the circumstances enumerated in the preceding sentence, the "ebb and flow" theory is not applicable. We will, therefore, sustain paragraph 1 of the Claim.
For the reasons as stated in our recent Award No. 11489 we will not order Carrier to restore the position of Assistant Agent (Clerk) at Milford, Virginia. But, as in Award No. 11489 we will order that Carrier pay to Claimant T. B. Allen (see paragraph 3 (a) of the Claim) such amount as will make him whole for any loss of wages he has suffered, in the period from May 15, 1958 to the date of this Award, as a result of the violation of the Agreement.