Award No. 13930
Docket No. TE-12980
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Harold M. Weston, Referee
PARTIES
TO
DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
GULF, COLORADO AND SANTA FE RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The Order
of Railroad Telegraphers on the Gulf, Colorado and Santa Fe Railway, that:
1. Carrier violated the Agreement between the parties when it
changed the rest days of the Agency Positions at Marietta and Dougherty,
Oklahoma, without a service requirement.
2. Carrier shall now be required to pay H. W. Giese the difference
between the pro rata and time and one-half rates for work performed
each Saturday and Sunday and eight hours at the pro rata rate for
each Thursday and Friday, beginning May 31, 1960.
3. Carrier shall now be required to pay L. R. Mitchell the difference between the pro rata and time and one-half rates for work
performed each Thursday and Friday and eight hours at the pro rata
rate for each Saturday and Sunday beginning May 31,1960.
EMPLOYES' STATEMENT OF FACTS: An Agreement between the
parties bearing effective date of June 1, 1951, is in evidence.
At Marietta, Oklahoma, the Carrier maintains a station at which it
employs an Agent covered by the Agreement. Prior to May 31, 1960, his
assigned hours and rest days were as follows:
Agent-Telegrapher-7:45 A. M. to 3:45 P. M. Rest days Saturday
and Sunday.
At Dougherty, Oklahoma, the Carrier maintains a station at which it
employs an Agent covered by the Agreement. Prior to May 31, 1960, his
assigned hours and rest days were as follows:
Agent-Telegrapher-7:00 A. M. to 3:00 P. M. Rest days Thursday
and Friday.
Service was required on these two positions seven days each week and
rest day relief work was performed by the incumbent of a regular rest day
relief position.
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notice dated and issued on March 12, 1951, Carrier changed the rest
days of this position from Saturday and Sunday to Tuesday and
Wednesday. This change was made effective as of March 17, 1951.
There is no question about Carrier's right to make this change."
See also Third Division Awards Nos. 9120, 7376 and others.
Since the circumstances surrounding the change in rest days that was
the subject of the claim that arose on the respondent Carrier's property and
was denied by the Third Division in its Award No. 6384 were somewhat similar
in nature to those in the instant dispute, the Board's attention is directed to
the "Opinion of Board" in Third Division Award No. 6384 which reads in part
as follows:
"Management, except through restrictions contained in this Agreement, has the right and duty to arrange its work efficiently. The
Board must find in this case that the Carrier did show by a preponderance of the evidence that it was not `practicable' to have Saturday and Sunday as rest days. The following assertions of the carrier
were not controverted:
'In addition to being a port through which considerable
import and export business is handled, Stockton-Mormon is
one of the Carrier's heaviest interchange points. Much of the
interchange of traffic with the Southern Pacific and Western
Pacific consists of perishable fruits and vegetables which, in
addition to requiring prompt movement, also necessitates
the attention of experienced employes to assure correct reporting and handling of all matters pertaining to the cars
received and handled, to and from connecting lines. The
duties of Position 715 included, among other things, the
important duties of handling reports and other matters pertaining to the interchange of cars and thus necessitated
the services of an employe who was experienced in the duties
thereof, particularly on Saturdays and Sundays, which were
the heaviest days of the week insofar as concerned Position
715. Since the so-called car desk, occupied by the incumbent
of Position 715 was being protected on the first and third
tricks on Saturdays and Sundays with somewhat inexperienced assigned rest day relief employes, it was also highly
desirable, from the standpoint of efficiency to have an experienced employe on the car desk during at least a portion of
those days. Since Mondays and Tuesdays were the lightest
days of the week, insofar as concerned the duties of Position
715, those days were assigned as the rest days or days off for
the regular incumbent of Position 715, in the hope that the
then available off-in-force-reduction employes, who were
female employes, would be able to satisfactorily handle the
duties and responsibilities attaching to Position 715 on Mondays and Tuesdays."'
In conclusion, the Carrier respectfully reasserts that for the reasons
hereinabove set forth, the Employes' claim in the instant dispute is entirely
without merit or support under the governing agreement rules and should be
denied in its entirety.
OPINION OF BOARD:
The question at issue is whether Carrier breached
the Agreement by changing the agents' rest days at its Marietta Station from
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Saturday and Sunday to Thursday and Friday and at its Dougherty Station
from Thursday and Friday to Saturday and Sunday. The positions are sevenday positions and both are manned on their respective rest days by the same
employe, J. R. Snow.
Article III, Section 17, is the controlling provision of the Agreement and,
in pertinent part, provides that established rest days ". . may be changed
to meet service requirements . . . ." The critical issue therefore is whether
or not those rest day changes were made to meet "service requirements."
The record indicates that the changes were based on management's
evaluation of a report from the Assistant General Freight Agent for the
Santa Fe Railway Company at Oklahoma City. That report states that a
Mr. Cliff Ruhrup of Dolese Company, Carrier's principal shipper at Dougherty,
had complained that whereas service was fine when the regular agent was on
duty, "things went to pot" on Thursday and Friday, his rest days. According
to the report, Ruhrup also pointed out that Thursday and Friday are heavy
loading days and wondered if there was any chance of having the regular
agent work straight through from Monday to Friday and then take his days
off Saturday and Sunday.
While Carrier would have been on firmer ground if it had introduced
into the record a direct statement by an official of the customer, the Assistant
General Freight Agent's report is undisputed and no circumstances have been
brought to our attention that tend to disprove or detract from it in any
material respect. There is no evidence of bad faith on Carrier's part or of
an improper attempt to avoid its commitments under the Agreement.
It certainly is realistic and sound business practice under the circumstances
of this case for Carrier to seek to satisfy a shipper and, in its judgment,
improve efficiency by making rest day changes. We are satisfied that these
changes were put into effect to meet "service requirements" and will deny
the claim.
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 the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 28th day of October 1965.