SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-4966) that:
(a) Carrier violated the Agreement between the parties effective October 1, 1940, as amended, when it failed and refused to bulletin Ticket Clerk Position No. 206 to employes covered thereby, but, instead, assigned the duties thereof to Mr. R. E. McGee, City Ticket Agent, who has no seniority rights thereunder; and
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement bearing effective date October 1, 1940, reprinted May 2, 1955, including revisions (hereinafter referred to as the Agreement), between the Southern Pacific Company (Pacific Lines) (hereinafter referred to as the Carrier), and its employes represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Employes), which Agreement is on file with this Board and by reference thereto is hereby made a part of this dispute.
1. At the time this dispute arose, Carrier maintained a facility called Oakland City Ticket Office, with the following personnel:
With regard to Rule 1, as clearly stated in Section (a) thereof, "These rules shall govern the hours of service and working conditions" of positions and class of positions there identified. It does not describe work embraced by the agreement. Further, neither that rule nor any other rule of the current agreement relates to or even by inference reserves to listed positions work forming basis of this claim.
With regard to Rules 33 and 35, Section (a) of Rule 33 provides only that new positions or vacancies shall be advertised semi-monthly. Neither Rule 33, Section (a), Rule 35, nor any other provision of the current agreement contemplates that a position that has become non-existent through abolishment shall be advertised as a vacant position.
As pointed out by the Carrier, the claim is completely lacking in merit because no provision of the current agreement supports the claim, this being illustrated by the total lack of an agreement provision supporting the claim as evidenced by long-standing practice on the property.
Carrier has conclusively shown herein the claim is unwarranted and totally lacking in merit, and asks that if not dismissed, it be denied.
OPINION OF BOARD: Prior to December 31, 1959, the office force at Carrier's Oakland, California, ticket office consisted of the following:
All of the above positions were covered by the current Agreement with the exception of Position No. 200, Agent, which was not covered by any agreement.
On December 31, 1959, F. A. Grimmelman retired, and the resultant vacancy on his Position No. 205, Head Ticket Clerk, was filled temporarily under Rule 34(c) by H. O. Warren, incumbent of Position No. 206, Ticket Clerk, pending assignment of a regular incumbent to Position No. 205, through advertisement notice. This position was advertised December 24, 1959, and was assigned to the senior applicant, H. O. Warren, under date of January 8, 1960. The resultant vacancy on Position No. 206 was not filled and the position was abolished due to a decline in business.
The Employes allege a violation of the Clerks' Agreement because the work of the abolished position, it is charged, was assigned to and performed by the Agent, an employe not covered by that Agreement.
The Carrier's defense is that the Clerks do not enjoy an exclusive right to perform the work because they cannot show it had been performed by 13190-18 381
them to the exclusion of all others under the prevailing practice and custom on this property. Therefore, the Carrier argues, the work here in dispute not having been reserved to the Clerks could properly be assigned to others.
This defense is of no avail to the Carrier under the facts of this case. Here, the record is clear that the work of the position abolished remained to be performed; that some, if not all, of the work was assigned to and performed by an employe not covered by the Agreement. From its inception, this Board has consistently held that work performed by an employe occupying a position under Agreement coverage and which remains to be performed after the position is abolished may not be assigned to an employe not covered by that Agreement. (Awards 231, 631, 1209 are typical.)
FINDINGS: The Third Division of the Adjustment Board, 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
This Award is in error because it fails to follow the now well-established principle that under a general scope rule, which merely lists positions, resort must be had to custom and practice proved by the Petitioner that the claiming craft, and it alone, to the exclusion of all others, has established an exclusive right to the work claimed. (Awards 11149, 11466 inter alia.)
The net effect of this Award is to hold that a City Ticket Agent cannot sell tickets-a result which speaks for itself as to its soundness.