THIRD DIVISION

(Supplemental)




PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES

THE DELAWARE AND HUDSON RAILROAD CORPORATION

STATEMENT OF CLAIM: Claim of The System Committee of the Brotherhood (GIr5004) that:






EMPLOYES' STATEMENT OF FACTS: For a number of years there existed at Port Henry Freight Station, two clerical positions, Machine Operator-Cashier, position No. 2 and Typist, position No. 4. These two positions were abolished due to steel strike on July 4, 1959 and when steel operations resumed on November 9, 1959, the former occupants of Machine Operator-

position of Machine Operator~Cashier was continued on at Port Henry until July 23 1960 when, due to continuing declining shipments from and to that point, the position was once more abolished and the Agent-Telegrapher again performed all carrier's work at that station. It is an undeniable fact that during the period July 4 through November 9, 1959, the Agent-Telegrapher at Port Henry performed all necessary work at that point.


OPINION OF BOARD: Most of the business at Carrier's Port Henry, New York, station consists of shipments to and from the Republic Steel Corporation's mines in the area. On July 4, 1959, the mines were shut down and Carrier abolished the two clerical positions at Port Henry, and the remaining work was done by the Agent-Telegrapher. This work was so performed until November 10, 1959. On November 10, 1959, the mines were re-opened and Carrier advertised the two clerical positions by bulletin. One of the positions, No. 2, Machine Operator Cashier, was awarded to senior bidder effective November 22, 1959. The other position, No. 4, Typist, was filled on a temporary basis for six days and then the bulletin was withdrawm for lack of sufficient v7ork. The No. 2 position continued until July 23, 1960, when it was abolished because of declining shipments to and from Port Henry. Again, the Agent-Telegrapher performed all the work at that station.


Same four months later tire present claim was filed, being predicated on the theory that the Scope Rule was violated when the Agent-Telegrapher performed work which allegedly is reserved to Clerks, specifically the No. 4, Typist.


The Organization cites Rule 2 (c) and Rule 44 (a) of the Agreement, as follows:












They argue that these rules are specific, exclusive and literal and not subject to interpretation in light of the general Scope Rule or any tests normally applied in determining scope.


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The Carrier responds that to gain the protection of the above-quoted rules of the Agreement the work at issue must first be shown to be covered by the Scope Rule by applying the standard tests of practice, tradition or custom of performance by a given craft on a property wide basis. This Board is in agreement.


'The wording of Rule 2 (c) itself, "work within the scope of this agreement", requires a determination of what work is within the scope of the agreement and the only source for that information is the Scope Rule. Since it is general in nature then it must be applied using standard, accepted tests.


As to the abolishment of the position of No. 4, Typist, such was done by negotiation or by agreement resulting from prior negotiation when it was abolished on July 4, 1959 upon shutdown of the mines. The mere bulletining of the position in November, 1959 did not re-establish the position wince a bulletin is only an advertisement of the intent to establish a position; where the bulletin was withdrawn there was no requirement of further negotiation under the Agreement.


This Board has held on numerous occasions that where the work at a location decrease and there is telegrapher work remaining it is proper to retain the telegrapher and assign to him clerical work to fill out his tour of duty where he is not occupied with communications work. Such was done here without violation of the Agreement.


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












Dated at Chicago, Illinois, this 4th day of August 1966.

LABOR MEMBER'S DISSENT TO AWARD 14746, DOCKET CL-12744

Award 14746, Decket CL-12744, is in error and cannot be accepted as a proper interpretation of the Agreement here involved.


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The abolishment of position No. 4, Typist, said by the Referee to have been done "by negotiation or by agreement" simply cannot be supported by' the record. In fact, the record clearly shows that a prior abolishment at this same station resulted, as it should have here, in the reassignment of the duties ,of the abolished position to remaining clerical positions. If any prior practice was to be followed it too would have sustained the position of the Employes.


The Award is in error for yet another reason. The introduction of the "so-called ebb and flow theory", in the face 'of special rules which clearly abrogate that theory, is clearly in error and contrary to many well reasoned prior Awards such as 5785, 7372, 8500, 8673, 9416, 11586, which are well .summarized in Award 12414.


Award 12414, Coburn, considered the arguments presented herein by the Carrier and held:






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Clearly, Carrier's sole argument here was that the work was not exclusive to Clerks and that argument was met and answered many times before the restrictive rules were written. Furthermore, nowhere in the record did Carrier allege that the abolishment was done by negotiation or by agreement. Clearly such an alleged defense should not have been supplied.


The Award is in complete error and cannot be accepted as a proper interpretation of the Agreement here involved and most certainly defenses not brought forth by Carrier should not be gratiously supplied by Referees.




Keenan Printing Ca., Chicago, 111. Printed in U. S. A.
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