NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Harriman and Northeastern Railroad that:
EMPLOYES' STATEMENT OF FACTS: The Agreements between the parties are available to your Board and by this reference are made a part hereof.
Peirce, Tennessee, is a station on this Carrier's lines. For many years a position of Agent-Telephoner, under the Telegraphers' Agreement, was maintained at this point performing agency service, not only for Petros, but for Coalfield, Blue Gem, Christmas and Stephens, all in Tennessee and all located on the H&NE.
Petros is located at the northern end of the railroad. Harriman, Tennessee, is 19.5 miles distant and located at the southern end of the railroad. The Southern Railway connects with this Carrier at Harriman. A joint agency is maintained by the two carriers at Harriman and the Station Agent at Harriman is an employe of the Southern Railway.
This Carrier made application to the Tennessee Public Service Commission to discontinue agency service at Petros and to dismantle the station. Hearings were held on this subject on April 29, 1958 at Harriman, Tennessee. During the hearing, evidence was presented by the Carrier showing that gross revenue was approximately $200,000.00 per year which after applying Car-
OPINION OF BOARD: This claim is presented on behalf of Mrs. I. M. Hobbs, who was the regularly assigned Agent-Telephoner at Petros, Tennessee, until June 16, 1958. On that date her position was abolished and the work she had been performing was transferred to a joint agency at Harriman, Tennessee.
It is the Organization's contention that this work was transferred to persons who are not employes of the Carrier and who are not covered by this agreement and that this violates the rules of the agreement.
The agreement involved is somewhat unusual. The agreement is between the Order of Railroad Telegraphers and seven (7) separate Carriers, each being a separate legal entity. Although the entire agreement applies to each of the separate Carriers, the agreement provides in the first paragraph as follows:
The employes contend that the above language clearly indicates an intent that this agreement be considered and interpreted as 7 separate agreements between the Organization and each of the Carriers as a separate legal entity. We agree with this contention.
Treating the agreement between Harriman and Northeastern Railroad Company as a separate agreement, we find that the only position covered is at Petros. We further find that Rule 6 of the agreement guarantees eight. hours' pay to each regularly assigned employe within each 24-hour period,, except for rest days and holidays. Mrs. Hobbs was the only regularly assigned employe of the Harriman and Northeastern Railroad Company covered by the agreement between these parties.
It is admitted that some of the work previously performed by Mrs. Hobbs is now being performed by the joint agency at Harriman. This includes taking calls, signing orders and collecting demurrage. The employes at Harriman are listed as employes of the Southern Railway Company and are covered by the agreement with that company. They are not governed by the seniority rules of the agreement between Harriman and Northeastern and the Order of Railroad Telegraphers. Although they perform services for Harriman and Northeastern and are partially paid by Harriman and Northeastern, they are governed by a separate bargaining agreement.
As a result of the separation, Mrs. Hobbs is the senior employe of Harriman and Northeastern covered by the agreement. The abolition of her position and transfer of her work to someone outside the agreement destroys, these seniority rights. This cannot be done except by agreement. 12478-13 827
Award 752 involves a very relevant fact situation. Therein a clerk's position was abolished and the remaining duties were assigned to a clerk dispatcher, who was excepted from the agreement, and to other clerks employed in a joint agency at Harriman, who were in a separate seniority district from the abolished position. The Board sustained the claim that this violated the agreement and stated:
Carrier contends that they are merely abolishing the position at Petros and assigning the remaining work to other of their employes at the Harriman Office, a joint agency. In doing so, they contend that all of such employes are employes of Harriman and Northeastern Railroad Company. They attempt to treat all employes of the "Southern Railway System" as employes covered by one agreement. But this is contrary to the clear language the agreement which separates each agreement and which lists the position at Petros as the only position of the Harriman and Northeastern covered by the agreement with which we are involved.
The Carriers are inconsistent where they insist upon the basic agreement being treated as seven separate agreements, yet insist that the employes of either of the seven separate legal entities are employes of all of such entities in order to transfer work to persons not covered by the separate agreement.
We hold that so long as work covered by the Harriman and Northeastern Agreement remains to be performed, it must be performed by employes covered by the Harriman and Northeastern Agreement. It therefore follows that Mrs. Hobbs, being the only employe covered by the agreement, is entitled to pay for such work. The transfer of such work to employes of a separate Carrier, not covered by the Harriman and Northeastern Agreement, violates the Harriman and Northeastern Agreement. The Carrier shall compensate Mrs. Hobbs at the rate of the discontinued position for each day the work of her position is performed by others not covered by the agreement.
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; 12478-14 828
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
CARRIER MEMBERS' DISSENT TO AWARD 12478
DOCKET TE-11193 (Referee West)
The Southern Railway, the CNO&TP, and the H&NE (Harriman & Northeastern) are three of the eight carriers parties to the collective bargaining agreement effective September 1, 1949 between each of the eight carriers
and its employes represented by the Order of Railroad Telegraphers. The H&NE is a 19-mile branch line, wholly within the State of Tennessee. It extends from Harriman to the State prison mines at Petros. It physically connects at Harriman with the Southern and the CNO&TP. Thus, three of the eight carriers covered by the effective Telegraphers' Agreement operate into and out of Harriman. Since March, 1917, Harriman has been a joint SouthernCNO&TP-H&NE agency. In all subsequent agreements up to and including the
current agreement effective September 1, 1949, the respective parties allocated the existing agent position and clerk-telegrapher positions at Harriman to the Southern Railway Knoxville Division seniority roster and the existing agent position at Petros to the H&NE roster.
By 1958, due to complete discontinuance of commercial coal shipments from the State mines at Petros, the former volume of H&NE traffic and fulltime workload of the agent position at Petros no longer existed. When carrier applied to the Tennessee Public Service Commission for authority to close its Petros agency, the former daily train service had dropped to one turnaround trip twice a week and the actual workload of the agent was only two hours for the entire week.
Carrier's Exhibit A is a copy of the Commission's order dated May 20, 1958, authorizing carrier to discontinue agency service at Petros, to dismantle the station building, and make Harriman the governing agency. It is obvious that this would add only an insignificant amount of clerical work to the Harriman agency. No consolidation of agencies was necessary. The separate agencies at Harriman were consolidated in 1917. Therefore, under the terms of the agreement between the respective parties, Harriman was already an H&NE station agency, and in making it the governing agency for Petros, no H&NE work was transferred to another carrier.
Rule 6 was not violated. So long as the agent position at Petros existed, the assigned occupant was subject to its guarantee provisions of "eight (8) hours pay within each twenty-four hour period, according to location occupied or position assigned * * *." When that position was abolished in accordance 12478-15 829
with the specific terms of the agreement, the occupant was no longer a regularly assigned employe or subject to the guarantee provisions of Rule 6. The effective agreement contains no guarantee whatsoever of any number of assigned employes or positions. Nor can it be said that the parties froze, or even intended to freeze, the position of agent at Petros by listing it in the rate schedule of the printed agreement. The parties made this unmistakably plain by the following paragraph appearing on page 100 of the printed Telegraphers' Agreement:
Award 752, cited by the majority, is not analogous. That award turns the clock back twenty-five years. Although business was reduced, the H&NE was handling daily movements of coal from State Mines. In its Harriman office carrier reduced the force by abolishing the lower-rated clerk position and re taining the higher-rated excepted chief clerk position. The Clerks' Organization showed that more than four hours per day of duties of the abolished position, as itemized in the statement of facts, remained to be performed. There, both the office and a substantial portion of claimant's duties continued to exist.
It is impossible to reconcile the conclusions of the majority in Award 12478 with the Board's decisions in similar cases covered by Awards 5719 (Guthrie), 5803 (Carter), 8662 (Guthrie), and 12484 (Sempliner), as well as Award 23 (Ray) of Special Board of Adjustment No. 506. In each of those cases the agencies were closed and all remaining work of the abolished agent positions entirely removed from employes covered by the Telegraphers' Agreement to clerks at the governing agency. In Awards 5719, 8662, and 12484, certain remaining clerical work continued to be performed at the station where the agent position was abolished. In Awards 5803, 8662 and 12484, the agent position at the governing agency was not covered by the Telegraphers' Agreement. To illustrate the majority's refusal to follow the fundamental principles applied by the Board in similar cases, we quote the following from the Board's Opinion in Award 5803 (Referee carter):
An agent-telegrapher is entitled to perform all telegrapher's work, all supervisory work and any other station work, including that ordinarily performed by clerks, in order to fill out his job. When such a position is abolished and the remaining work is transferred to an adjacent or nearby station, the work belongs to the class of employes who customarily and traditionally perform it. It seems 12478-16 830