BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
of the rules of the Clerks' Agreement pursuant to Exception 1 to Rule 1. All positions in that office are filled by appointment without regard for seniority, which is to say that claimants in any eventuality could have no agreement right to secure such positions.
In conclusion, the Board's attention is called to these important facts in this case:
In view of the foregoing, Carrier respectfully requests these claims be denied.
OPINION OF BOARD: When carload freight is handled by two or more carriers, the revenue is divided appropriately between all carriers who participated in the movement. To accomplish the division of revenue the Carrier who delivered the car at destination prepares a statement known as an Interline Abstract. A copy of the Interline Abstract is forwarded to each participating carrier Abstracts reaching the St. Louis office are checked and analyzed by Recheck Clerks. If the division of revenue is found correct, the abstract is approved and settlements are made accordingly. If the division is found incorrect, a statement of differences is prepared by clerks and referred to the carrier who originated the abstract. Statements are exchanged in an effort to reach an agreement on proper division of revenue.
who audit the abstracts completed by employes subject to the agreement. The clerical work necessary to effect corrections of the errors discovered by the Auditors is performed by employes subject to the agreement.
The Claimants argue that the work of auditing the work of Recheck Clerks is work belonging to the Claimants who are Recheck Clerks.
The same conclusion and the same quotation appear in Award 5329 (Robertson).
We consider these Awards controlling and applicable to the facts in this docket. We do not consider it necessary to comment on any other issue herein.
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 claim arose from the fact that on August 28, 1961, the Carrier established five (5) positions in the Recheck section of the office of Auditor Freight Traffic and unilaterally declared them to be excepted from the Rules Agreement. Those positions, as result of Carrier's unilateral determination that they were "excepted", were not advertised to the Employes holding seniority rights to vacancies and/or new positions in the seniority district involved. Instead, the Carrier unilaterally established such matters as rates of pay, hours of service and other working conditions, and chose certain employes and placed them on the positions without any regard whatsoever to the Agreement.
The office of Auditor Freight is located on the fourth floor of the Missouri solidated General Accounting Office which constitutes a seniority district and Pacific General Office Building at St. Louis, Missouri. It is a part of the Conroster. There are sub-departments (formerly separate seniority districts) included in the office consisting of:
The office of Auditor Freight Traffic is further divided into sub-sections known as:
The Recheck section was the one involved in this dispute. At the time the five disputed positions were established there were from 56 to 72 regularly assigned Recheck Clerks. Recheck Clerks were assigned by bulletin to perform the following major duties:
The qualifications required by the Carrier for an Employe to be assigned to a Recheck Clerk position is:
Claimants named, by virtue of the fact that they were regularly assigned Recheck Clerks, senior to those chosen by Carrier for the five new positions, possessed the qualifications necessary to properly perform the functions required of the positions here involved.
There was no substantial differences as to the physical setting or organization of the offices and departments. The dispute arose from the fact that Employes insisted that the five new positions, performing work in the same manner and same office as the Recheck Clerks, should have been under the Agreement and advertised for seniority choice. The Carrier claimed that neither the work performed on the positions nor the positions themselves were covered and that the five new positions and the employes were actually in and/or of the Office of Controller and, therefore, not subject to any provisions of the Clerks' Agreement.
The facts with respect to the detail work being performed by the occupants of the five newly-established positions, as compared with the work of Recheck Clerks, clearly indicated that, rather than new work being undertaken, the establishment of the five positions merely permitted an expansion of the ongoing work in the Recheck section.
Traveling Auditors, both limited and unlimited as to numbers, are listed at pages 14 and 15 of the Agreement under ACCOUNTING AND FINANCE DEPARTMENT in Auditor of Disbursements, Auditor Station Accounts and Car Accountant districts. Such listing under Auditor Freight Traffic does not appear although some twelve positions and/or titles are listed therein as excepted. At page 7 of the Agreement, under the same heading, there is listed "Traveling Auditor", singular, thereby indicating that the parties had agreed to one Traveling Auditor being excepted. All such "Exceptions" were negotiated. The five newly-created positions were not established as result of negotiations. It was clearly pointed out to the Referee that the various employes, positions and offices, which were excepted, were arrived at through the process of collective bargaining; that such matters were not subject to the whim of Carrier nor were such vital matters retained by Carrier as one of its prized prerogatives. The Agreement attested to that.
It was apparent that Carrier sought to evade the Agreement through the guise of changing "titles" and by calling additional recheck work "specialized" or "auditing" work. In short, Carrier and the Referee failed to recognize that the Agreement applied to the character of work and not merely to the method of performing it. Such a pronouncement had been set forth many times by this Board, for example, in Awards 864, 1092, 3706, 3746, 4448, 4576, 4688, 5117, 5410, 6448, 7239, 8217, 10498, 10577, 10736 and many others. The Referee also overlooked the fact that work is the essence of a position as expressed in Awards 1314, 5785, 5790, 7372, 8500, 9416, 10189, 10633, 11062, and many others.
Employes had no quarrel whatsoever with Carrier's determination that it would be desirable to check each and every abstract rather than, as before, only those abstracts assigned by the personal clerk and those wherein correction accounts had been issued. Employes did, however, strenuously object to Carrier's determination that it could choose to have this work performed by whomsoever it pleases on the basis of embracing and "adopting" the findings 13624-37 859
in Awards 1802 and 5239. Those Awards were rendered in disputes on other Carriers, and held in those cases and under those circumstances, that the Carriers there involved could contract with outsiders for the purpose of "auditing" the work performed by Carrier employes. It was important, and was pointed out to the Referee in the instant case, that while Carrier asserted such a right, it did not so proceed. It chose, instead, to have its own employes perform the work. It should not have followed that in so doing Carrier could arbitrarily and unilaterally choose which of its many qualified employes could do the work. From early Award 122 to very recent Award 11062, it had been held that the duties assigned and performed govern the classification and that (Awards 2091, 2737, 7066) the title ascribed to a position was immaterial. As a matter of fact, Award 123 involved a dispute between these same parties and held, in part, that changing a title from Head Janitor to Building Custodian did not remove the position from the Scope of the Agreement. Likewise here, the mere titling of the five Recheck Clrk positions to that of "Auditor" did not, and should not, have removed either the positions or the work from the Agreement. If the Carrier felt that certain positions in the Recheck section should have been "excepted", it had the duty to follow the procedures set out in the Railway Labor Act and the current Clerks' Agreement rather than, as here, proceeding unilaterally to ignore those processes and seek approval of its acts from this Board. That it was successful merely points up the crying need for trained Referees.
There were certain employes, positions and offices excluded from some or all of the Agreement rules. The very fact that some positions were excluded indicated that all others, however designated, were to be under or within the comprehension of the terms of the Agreement. Award 4110 and others starting with 2009, 3825, etc., dealt with the maxim that where one exception is clearly expressed no others would be implied. That maxim clearly fit this case but was ignored.
The Agreement upon which the Employes relied and their theory of application was clearly set forth in the record. The Referee should have carefully noted those arguments and considered the effect of the Agreement and the effect of permitting this Carrier to arbitrarily designate which work was and/or what employes were not covered by that Agreement.
In short, the Agreement spelled out which Auditors and others were excepted therefrom and, therefore, Carrier was not and is not, this erroneous "Award" notwithstanding, free to unilaterally establish other and additional "excepted" positions.
It was a gamble which Carrier won in the instant case, mainly because it was decided by a neophyte Referee whose reasoning, as made clear in his remarks as well as his "Awards", is not based on the Agreements he is charged with interpreting but, rather, on his obvious "laissez faire" philosophy which has been exhibited too often.
Cases should not be decided on the basis of any Referee's personal predilections. The Referee ignored many prior Awards and adopted two Awards which held that the Carriers there could do something other than what was done in this case. It is not surprising that he considered it unnecessary to comment further. 13624-38 860