PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

RAILROAD COMPANY



Brotherhood that:

1. Carrier violated and continues to violate the Clerks' Rules Agreement, including paragraph six of Memorandum of Agreement dated January 13, 1958, when effective July 1, 1958 and thereafter it unilaterally transferred work from the Terre Haute Division, former Seniority District No. 35, to Seniority District No. 30.



3. Employe R. P. Dorfmeyer be compensated for eight (8) hours at the regular pro rata rate of Relief Position No. 2, which was $17.776 on date of abolishment, for each day from and including July 12, 1958 to date the violation is corrected.






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EMPLOYES' STATEMENT OF FACTS: Prior to July 11, 1958 the following positions were in effect at Faithorn, Illinois:


Pos. No. Title Occupant Assigned Hours Rest Days Rel. By

4 Chf Yd Clerk W. E. Hewitt 9:00 a - 5:00 p Sun & Mon #1
233 1st Yd Clerk D. Ziems 7:30 a - 3:30 p Mon & Tues #2
232 2nd Yd Clerk A. Sellers 3:30 p - 11:30 p Tues & Wed #1(T)

207 3rd Yd Clerk W. E. Hasty 11:30 p - 7:30 a Wed & Thurs #1
Rel. #1 R. Buchanan Fri & Sat
Rel. #2' R. Dorfmeyer Thurs & Fri

    "Relief Position #2 relieved Position 212 at Chicago Heights on

    Saturday and Sunday


Effective July 1, 1958 the interchange of cars between the IHB, BOCT and Milwaukee railroads was discontinued at North Harvey, Illinois.


On July 8, 1958 Superintendent N. H. McKegney issued Bulletin No. 197 to employes in District No. 30, notifying them that effective as of July 11, 1958 the following positions would be abolished:


              1st Yard Clerk Position No. 233

              2nd Yard Clerk Position No. 232

              3rd Yard Clerk Position No. 207

              Relief Clerk No. 1


              Relief Clerk No. 2


Concurrent with this notice, Superintendent McKegney issued Bulletin No. 198 advertising 1st Yard Clerk Position No. 233 and Bulletin No. 199 advertising Relief Clerk Position No. 1. Position No. 233 was awarded to Employe A. Sellers and Relief Clerk Position No. 1 was awarded to Employe D. Ziems.


These changes took place while Employe Buchanan was on vacation. When he returned to work he exercised seniority over Employe Ziems, which reduced Employe Ziems to the furloughed list. Employe Hasty exercised seniority over Employe Nunley at Joliet, Illinois, thereby reducing Employe Nunley to the furloughed list. Employe R. Dorfmeyer, occupant of former Relief Position No. 2, was also reduced to a furloughed status.


There has been a net loss of three jobs at Faithorn and three employesZiems, Nunley and Dorfmeyer-reduced to the furloughed list. Account his physical condition, Employe Ziems was not qualified to perform the work of trucker at Joliet and this resulted in Employe Hasty taking the position.

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been confronted with request for re-arrangement of interchange, these changes would have been made regardless of whether the Term Haute Division was operated apart from the Chicago Terminal Division or whether the territories were operated under the jurisdiction of one superintendent. Moreover, this change in the handling of interchange cars, in the normal management of. its operations, would have been made regardless of whether or not there had been executed the Memorandum of Agreement effective January 16, 1958, and we submit that the operational changes made in connection with the handling of interchange were not made in violation of any portion of that agreement, nor with any thought of infringing in any way upon the provisions of that agreement.


The work which forms the basis of this claim has always been performed by clerical employes at Bensenville and such work has fluctuated from time to time or even from day to day, depending on various conditions. As we have said, such clerks are devoting no more time today to such work than they have at various times in the past. There has been no transfer of work as between Seniority District No. 35 and Seniority District No. 30 and there is no basis whatever for the claims which have been presented.


    All data contained herein has been made known to the employes.


    (Exhibits not reproduced.)


OPINION OF BOARD: The parties entered into an Agreement, effective January 16, 1958, consolidating two Seniority Districts. The following provision was part of the consideration:


      "6. With the exception of any transfer of work of positions abolished prior to January 17, 1958, effective that date and for a period of one year thereafter there will be no transfer of work or duties of positions from the present Terre Haute Division to the Chicago Terminal Division; likewise, effective January 17, 1958 and for a period of one year thereafter there will be no transfer of work or duties from the Chicago Terminal Division to the present Terre Haute Division."


It is the contention of Petitioner that Carrier violated the above provision when, effective July 1, 1958, it transferred the interchange of cars and related work from the Terre Haute Division to Bensenville and Chicago Terminals.


In considering the principle of contract law here involved, we can assume that Carrier, as contended by it, did not have control of designating points of interchange. But, at the time the Agreement was executed Carrier admits it had knowledge of the possibility that during the term of the provision, here involved, interchanges then being made in the Terre Haute Division might be shifted to another Seniority District. Notwithstanding this knowledge of a contingency, Carrier entered into an absolute contract not to remove the work from the Terre Haute Division.


Since the contingency was known to Carrier and its occurrence could have been guarded against by Carrier, it is reasonable to assume that Carrier took the risk of transfer of interchanges from the Terre Haute Division. Having bound itself absolutely the occurrence of the contingency did not release Carrier from its promise not to transfer "work or duties of positions from the present Terre Haute Division." Therefore, we find that Carrier's complained of

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action violated the Agreement; and, it was a continuing violation from July 12, 1958 to January 17, 1959.


As to Claimants Dorfrneyer, Nunley and Luecke, we dismiss the claim. Claims on their behalf were not presented in accordance with Section 1(a) of Article V of the National Agreement of August 21, 1954, to the designated officer of Carrier authorized to receive claims or grievances in the first instance.


As to Claimants Ziems and Hasty, we will award that each of them be made whole for any loss of wages suffered, because of the violation, in the period from July 12, 1958 to January 17, 1959. The amount payable to each of them shall be the difference between what he would have earned in the period absent the violation less his actual earnings during said period.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


That the parties waived oral hearing;

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 Carrier violated the Agreement in part.


                AWARD


    Paragraph 1 of the claim is sustained.


Paragraphs 2 and 5 of the claim are sustained with monetary award to be computed as prescribed in the Opinion.


Paragraphs 3, 4 and 6 of the claim are denied.

              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


              ATTEST: S. H. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 12th day of December 1963.