THIRD DIVISION
(Supplemental)
OPINION OF BOARD: On December 1, 1959, as a result of negotiations between Carrier and the Telegrapher organization, the supervisory position of Agent at Herington, Kansas became subject to the Telegraphers' Agreement. Effective January 26, 1960, Carrier abolished the position of Warehouse Foreman at Harrington covered by the Clerks' Agreement. The work of the Warehouse Foreman was assigned to remaining clerical employes and the Agent, an employe covered by the Telegraphers' Agreement.
The Brotherhood of Railway Clerks claims that the reassignment of the work was improper and in violation of the Clerical Agreement. It contends that the Agent performs no telegraphic work and that the work he was assigned has always been handled by clerks under the Clerks' Agreement. In short, it is the Brotherhood's position that Carrier reclassified the Agent position for the purpose of performing clerical work, not telegrapher work, and in so doing, Carrier was doing indirectly what it could not do directly, that is, assigning work under the Scope of the Clerks' Agreement to a Supervisory Agent, a company official.
Carrier maintains that the reclassification of the Supervisory Agent was proper under the Telegraphers' Agreement, and did not require the approval of the Railway Clerics' organization. It asserts that the Agent, as the primary employe at a station, can perform all of the work at the station, and therefore the transfer of some clerical duties to this employe was proper. It emphasizes that telegraphers are frequently given clerical work to fill in their time. With the reduction of supervisory duties, the Agent was assigned telegrapher work, and he was properly given clerical duties from the abolished clerk's position which were incidental to his position and which he formerly performed.
The record shows that before the reclassification of the Supervisory Agent's position the occupant did not do any telegraphy work or the clerical work under consideration. Employes subject to the Brotherhood of Railway Clerks were assigned the clerical work and the telegrapher duties were handled at the telegrapher office about a block from the Agent's office. When the Agent became subject to the Telegraphers' Agreement, he did not do any work which involved the use of telegrapher equipment. Such equipment continued to remain at a separate location than that of the passenger and freight station at Herington, Kansas, where the Agent was stationed. The record does not support the assertion that the clerical work transferred to the Agent was work that be formerly performed in his capacity as a supervisory official. This was work which had been traditionally performed by clerks.
Telegraphers may fill out their time with clerical work incidental to their telegrapher duties, but in this instance the Agent neither carried out telegrapher duties nor were the clerical duties those which had been performed by him in the past.
The Agreement between Carrier and the telegraphers is not a subject for our consideration since the Clerks' organization is not a party to it. The issue is whether or not the Clerks' Agreement was violated.
We hold that the assignment of clerical work to the Agent was in violation of the Railway Clerks' Agreement. Claim is sustained.
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
Award 14645 rules that clerks have an exclusive right to work transferred to the Herington Agent in order to fill out his day. The ruling is based on the erroneous finding that ". . . This was work which had been traditionally performed by clerks."
This finding accepts the Employes' argument that the involved work was never incident to any position other than positions covered by the Clerks' Agreement and has been performed exclusively by the clerks on Carrier's entire system. In his memorandum to the Referee, the Labor Member stated the argument this way:
A fair reading of the record indicates that Carrier did deny that the clerks performed this work exclusively, system-wide (portions of the record relevant to this point were fully reviewed for the Referee in the memorandum submitted by the Carrier Members). 'The Employes did not prove this work had been traditionally performed by clerks and, therefore, the claim should have been denied under the consistent decisions of this Board. See Awards 13400 (Bailer), 11584 (Rose), 11336 (Coburn), 10741 (Miller), 10301 (Bonebrake), 4559 (Wenke), involving these same parties and Agreement; also see Award 13923 (Engelstein), among many others.
The repeated references to "telegraphic work" and "telegrapher equipment" in this award are misleading and irrelevant. This was work at the
agency and (contrary to this award) such work was incidental to the Agent's position. Carrier was entitled to require the Agent to fill out his day with work of the agency, as stated in Award 4559 (Wenke) which involved these same parties and Agreement:
This award also exceeds the jurisdiction of the Board in ordering Carrier to pay a monetary allowance which is not provided for in the Agreement, and which cannot be supported under any principle of damages recognized in contract law.
The claim is clearly a demand for an illegal penalty. In the first place, the claim is for four hours per day at the overtime rate (a two-hour call for the Chief Clerk and a two-hour call for the Cashier-General Clerk), yet the Employes' submission establishes that the Agent spent only a fraction of that amount of time doing the work that was transferred from the positions of Foreman and Chief Clerk (see the agreed-upon list of all work transferred at page 4 of the Employes' submission and the Agcnt's list of time spent doing various tasks at page 7 of the Employes' submission). In the second place, the Employes do not question the complete truth of Carrier's statement that:
The Employes note this statement of Carrier in their rebuttal, and their only response is a reference to certain of the findings in Award 6284, which are erroneous, but which in any event do not support this claim for four hours per day at the overtime rate when the record does not even support a finding that the Agent spends two hours per day doing the involved work. This Board has no jurisdiction to create such a penalty. See Part 11 of Carrier Members' Dissent to Award 14623.
The award is also defective in that it affirmatively indicates the Referee refused to give any consideration to evidence which the Board is required by law to consider. The award erroneously finds that the Agreement be-
tween Carrier and the Telegraphers " . is not a subject for our consideration. . :' Since the Clerks, on the basis of practice, are here claiming an exclusive right to work now assigned to an employe covered by the Telegraphers' Agreement and rules of that Agreement indicate this work is not traditionally the work of Clerks, the Board is legally obligated to consider those rules in adjudicating the claim. See the ruling of the United States Supreme Court in ORC vs. Pitney, 326 U. S. 561. Also see Slocum vs. The Delaware, L&W RR, 339 U. S. 239 and ORT vs. Union Pacific, 349 F. 2d 408, cert. granted, 383 U. S. 905.
LABOR MEMBER'S ANSWER TO CARRIER MEMBERS'
DISSENT TO AWARD 14645, DOCKET CL-13554
Award 14645, Docket CL-13554, is entirely correct both as to findings of fact and as to awarding the remedy requested.
Carrier's basic argument simply asked 'hat it be assumed that no work was covered by the Clerks' Agreement; therefore, Carrier was free to abolish clerical positions at will and assign the Clerk's work to whomever it wished. Now that simply is not, and has never been, the intent and meaning of collective bargaining Agreements. Rather, the intent and meaning of such collective bargaining Agreements, although it has been lost or obscured too often, is best set forth lately in recent Award 14591, Dorsey, wherein it is held:
In view of the attempt in this case, it is well to add that the bargain once made may not thereafter be lawfully unilaterally changed by either party entering into an Agreement with some other or different party.
The Award is correct in all respects and the dissent merely repeats arguments and allegations duly considered prior to the adoption thereof.