NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
G. Dan Rambo, Referee
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:
(a) The carrier violated and continues to violate the current
Clerks' Agreement by unilaterally permitting the Agent at Port
Henry, N.Y. Freight iStation, an employe outside the scope of the
Agreement, to perform clerical work previously performed by an
abolished clerical position at that station.
(b) The following named extra board employes shall be compensated
three hcurs
pay at the pro rata rate of $370.04 per month
plus cost-of-living and also necessary mileage allowance from headquarters point to point of assignment for the dates shown:
March 14, 1960 - Joseph V. Mormino
March 15, 1960-Robert J. Wescott
March 16, 1960 - Robert J. Wescott
March 17, 1960- Robert J. Wescott
March 48, 1960 - Joseph V. Mormino
(c) The above named claimants and all other extra board employes adversely affected shall be compensated per (b) above until
the violation complained of is corrected. Names of the extra board
employes involved to be determined by a joint check of the Carrier's
records.
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:
"2 (c) Positions or work within the scope of this agreement
belong to the employes covered thereby and shall not be removed
therefrom without negotiations and agreement between the parties
signatory hereto."
"Rule 44. (a) When thereis:-
"(1) A sufficient increase or decrease in the duties or responsibilities of a position, or
"(2) A change in the method of performing the service
required, or
"(3) A transfer or reassignment of work from one position
to another,
the compensation for such position shall be established by negotiation between the Management and the General Chairman, but established positions shall not be discontinued and new ones created under
the same or different titles covering relatively the same class or
grade of work, which will have tire effect of reducing the rate of pay
or evading the application of these rules. Should a position be
abolished the remaining duties shall be reassigned and rated through
negotiations between the Management and the General Chairman."
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 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 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:
"It seems the Carrier's primary defense in this matter is that
the work of selling tickets historically has been shared by clerks and
agents on this and other railroad properties; that, therefore, it
cannot be held that such work belongs exclusively to clerical employes performing such work under the Scope Rule of the Clerks'
Agreement. Absent such showing of exclusive performance of
work by the clerks, it is the Carrier's position that the claim must
be denied, citing many Awards where failure to meet this test has
been the grounds for denial of similar claims. (Awards 9329, 9330,
9685, 9690 are typical.)
The Brotherhood relies principally upon the Scope Rule provision quoted herein which forbids the removal from Agreement
coverage of either positions or work. It calls attention to numerous
Awards sustaining claims under similar rules and circumstances, even
where the rules spoke only of 'Positions' and not `Positions or work'
as is the case here. (See Award 5785 ).
As has been stated, the effective date of the Agreement before
us is January 1, 1957. The evidence establishes that from and after
that date until the second trick clerical positions at Newtonville
were abolished and the ticket-selling work divided between the Agent
and the remaining Ticket Clerk in September and October of that
year, employes covered by the Agreement were engaged in the work
of handling ticket sales and in duties related thereto. They were
so engaged when the restrictive provisions of the rule became applicable. Thereafter, the position of Ticket Clerk and the work of
selling tickets appertaining thereto could not be removed under the
clear and explicit language of the rule except by negotiation and
agreement of the parties. Awards 3653, 578-5, 8500, 8673 and 9416
are directly in point and controlling.
The Board has not ignored the evidence submitted by the Carrier purporting to show that during the period January-October
1957 the Agent at Newtonville from time to time may have sold
tickets. Nor are we unaware that on this and other properties,
agents have also handled ticket sales. What we do say is that the
general rule requiring a showing of exclusive performance of the
work claimed based on historic practice and custom, does not apply
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where, as here, a special rule clearly and expressly forbids the removal of positions or work without agreement. (Cf. Award 94'1'6
supra.)
As to Award 11495 (Third Supplemental), also relied on by the
Carrier and involving these same parties and the identical Scope
Rule, apparently there the Referee was persuaded to apply the test
of exclusive work performance and found that the evidence to meet
it was insufficient. Our position is, as has been stated, that the
special Scope Rule provisions of the Agreement in evidence here
obviate the necessity of showing such exclusive performance by the
moving party." (Emphasis supplied).
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.
/s/ D. E. Watkins
D. E. Watkins, Labor Member 8-10·66:
Keenan Printing Ca., Chicago, 111. Printed in U. S. A.
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