NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Gulf, Colorado & Santa Fe, that:
1. The Carrier violated the terms of the Agreement between the parties when, on December 14, 1959, it unilaterally declared abolished the 7:45 A. M. to 3:45 P. M. ticket agent-telegrapher-printer clerk position and the 10:00 A. M. to 6:00 P. M. telegrapher-printer-clerk position at the Passenger Station at Brownwood, Texas, and assigned work of these positions to the freight agent and clerical employes not covered by the Telegraphers' Agreement.
2. Carrier further violated the terms of the Agreement between the parties when, on or about November 1, 1959, it refused and continues to refuse to assign to employes covered by said Agreement the duties of operating a data-fax machine used for transmitting messages and reports located in the Passenger Station at Brownwood.
3. The work comprising the 7:45 A. M. to 3:45 P. M. ticket agent-telegrapher-printer clerk position and the 10:00 A. M. to 6:00 P. M. telegrapher-printer clerk position at the Passenger Station at Brownwood shall be restored to the Agreement.
EMPLOYES' STATEMENT OF FACTS: Agreement between the parties, bearing effective date of June 1, 1951, is in evidence.
This dispute concerns the Carrier's unilateral abolishment of the 7:45 A.M. to 3:45 P. M. Ticket Agent-Telegrapher-Printer Clerk position and the 10:00 A. M. to 6:00 P. M. Telegrapher-Printer Clerk position, without in fact abolishing the work thereof, installing a mechanical telegraph machine (Facsimile), at the Passenger Station at Brownwood, Texas, and assigning the operation thereof to employes outside the Agreement, and the transfer of work formerly performed by the occupants of the abolished positions to the Freight Agent and Clerical employes not covered by the Telegraphers' Agreement.
Prior to December 14, 1959, the station force at the Passenger Station 'Telegraph was:
following assignment: Saturday and Sunday 7:45 A. M. to 3:45 P. M. Ticket Agent-Telegrapher-Printer Clerk, Monday and Tuesday 10:00 A. M. to 6:00 P. M. Telegrapher-Printer Clerk, Wednesday 3:45 P. M. to 11:45 P. M. Telegrapher-Printer Clerk.
The assigned duties of the Ticket Agent-Telegrapher-Printer Clerk prior to December 14, 1959, consisted of:
sation, it will be obvious that the penalties claimed in behalf of the three claimants in the instant dispute are not only excessive but also disregard the Board's awards on the subject and constitute an attempt to have the Board assess the Carrier with punitive damages for an alleged violation of the governing agreement where none exists. In discussing a claim for penalties in an amount of eight hours at time and one-half rates for each day an alleged violation existed, the majority had the following to say in Award No. 7309 regarding the assessment of punitive penalties in the absence of a specific rule as support therefore:
The Petitioner has not and cannot point to any specific rule of the governing Telegraphers' Agreement which serves to support the excessive penalties claimed in behalf of the claimants in the instant dispute.
Moreover, the Petitioner's claim in behalf of Messrs. Connell and Smith in Items (4) and (5) of the Employes' Statement of Claim for eight hours additional pro rata compensation, plus time and one-half for work performed outside the assigned hours of the positions Messrs. Connell and Smith occupied at Brownwood prior to December 14, 1959, is an obvious attempt to assess the respondent Carrier with double or pyramided penalties for the same alleged violation which the Third Division has repeatedly held are improper and has refused to consider. Awards 3146, 4710, 5333, 5652, 6021 and others.
In conclusion, the Carrier respectfully reasserts that the Employes' claim in the instant dispute is wholly without merit or support under the rules of the governing Telegraphers' Agreement and should be either dismissed or denied in its entirety for the reasons set forth in this submission.
OPINION OF BOARD: The Carrier rearranged and modernized its yard facilities at Brownwood, Texas. A new yard office was constructed and the passenger station remodeled. A Data-Fax machine was installed to transmit messages between the passenger station and yard office.
The Carrier contends that much of the telegrapher's work ceased when the telegraph equipment was removed from the passenger station. The Carrier rearranged its work force which resulted in the net loss of one position.
The Petitioner contends that the Carrier could not abolish any of the positions, that the work remained and is being performed by others not covered by the Telegraphers' Agreement to operate the Data-Fax machine.
The Carrier has the right to abolish positions and to rearrange the work force. The record discloses that much of the work was no longer necessary to 13614-62 674
be performed. The remainder of the work was assigned to others. The Petitioner has failed to prove that such work belonged exclusively to them.
This Board has held that in order to establish its right to perform work the Organization must establish that it has performed the work exclusively. Herein, the Petitioner alleges that its employes performed the work in the past. There is no proof of exclusivity.
There is no evidence to sustain a finding that the operation of a Data-Fax machine was work exclusively performed by employes under the Telegraphers' Agreement. It is evident that such machine does not replace the telegraph instrument.
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