Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

Award 14875, Docket CL-15630, is in error. It indicates a total unfamiliarity with, or a disregard for, the rules of the Agreement and the heretofore preserved craft and class lines established by the National Mediation Board in representation elections.

Although many foreigh criteria are set forth in Award 14875 the one most supported by the Referee in reargument, and the most erroneous one, us that involving "time" e.g., "Claimant does not contend that the efficiency of the station suffered because of his absence or that he was actually needed. It must therefore be concluded that the clerical work, or ticket selling duties, were minimal on Claimant's rest days and that his duties could be easily handled by the telegrapher on Claimant's rest days."

The proper "test", however, is not whether someone outside the Agreement which covers Claimant's position had, or took, time to do the work of Claimant's position. The Agreement rules specifically provide the proper procedure for setting up relief for the rest days of employes -occupants of positions-in six or seven day service. Moreover, those rules apply only to employes in that particular bargaining unit and under that particular Agreement.

In fact, the "volume of work" simply is not controlling. Rather it is the class of work and the rules governing the assignment thereof which governs. See Awards such as 1611 (37 minutes), 1612 (20 minutes), 1729 (1 hour 12 minutes), 6284 (35 minutes), 8563 (25 minutes) and others which conclude:

Award 1611, Referee Bruce Blake

"* * * From .the standpoint of time and money involved the violation does seem inconsequential. The principle involved, however, is not. The dispute presents a challenge ,to the integrity of seniority rights as agreed upon by the parties. To condone a seem ingly slight violation would tend to undermine the basic structure of seniority rights. "This the Board has consistently refused to do. See Awards 752, 75.3, 973, 975, 1403, 1440."

Award 1729, Referee Edward M. Sharpe

"It is also a cardinal rule that the Board does not modify agreements. Its function is to interpret them . It is undisputed that at least 15% of the work heretofore performed was removed from under .the Agreement, and it must be held that such removal of even a small portion of the work was a violation of the Agreement." (Emphasis added)

Award 6284, Referee Adolph E. Wanks

"Reference is made to .the fact that only a small amount of work is involved. But work of a class is made up of many small items of work and to open the door at all is to invite a further entrance until it is completely open and the agreement made ineffec tive. See this Divisions' Award 2282. But the work is not of an insignificant amount. Admittedly it involves 35 to 40 minutes of time in connection with each train. In addition to this it apparently would take some time to get to and from where the work must be performed. The claim is made for a 'Call' in each instance. We think this is the proper basis four the claim as it is the minimum basis of pay provided by the Agreement for calling an employe to do work."

Award 8563, Referee Harold M. Weston

"This rule is similar to Article II, Section 3 (i) of the Forty Hour Work Week Agreement, effective, September 1, 1949. In its decision No. 2 the Forty-Hour Week Committee had that Section 3 (i) squarely before it and in that regard expressly ruled that

'Where work is required to be performed on a holiday which is not a part of any assignment the regular employe shall be used.'

"In .the present case, it is clear that Labor Day was not a part of the F-52 assignment and was therefore an unassigned day. It is not disputed that the employe who performed the work in dispute was a regular F-5-F relief employe and not an 'extra' or 'unassigned' employe. Accordingly, since we have found that Claimant was the regular employe charged with performing that work, it is apparent, under Rule 4-A-I (i), that he was entitled to be called by the Carrier to handle it.

The Carrier points out that the disputed work consumed only twenty-five minutes of the F-55 incumbent's working day on the

holiday in question. This argument has considerable emotional and `first blush' appeal but, in our opinion, does not bear careful scrutiny and analysis. The protection of job classifications is a legitimate concern of employe representatives and quite generally is one of the prime objectives of collective bargaining agreements. To permit such protection to be eroded by any encroachment, even those that appear to be trivial, might easily impair the Agreement and its effectiveness in stabilizing employe-management relations. See Award 7022."

See also Awards 6689, 7427, 9393 and others relative to how rest day assignments must be made under the rules.

Furthermore, Rule 20(e), Work on Unassigned Days, was either ignored or considered invalid and of no force and effect unless, according to the Referee, "* * * it covers work exclusive to the occupant of the position under the Scope Rule of the agreement." Such a ruling simply ignores many Awards such as 12957, 13824, '14029, 141191, 14379, 14703 and 14704 which specifically answered that question by properly holding that under such rules the question of whether .the work belongs exclusively to the Claimant is irrelevant because the work on unassigned day rule is specific and prevails over any general rule. I might add that "any general rule" properly includes those "Scope Rules" considered "General" as well as the general rule of "Exclusivity" promulgated by Referees at this Board. Especially one should have followed Awards 6019, 6562 and 13142 on this same property which had previously interpreted Rule 20 (e).

The question presented to this Referee is an odd old problem which has not been solved as evidence by the following:

See Question 1, Decision No. 3341, Docket 3390 of the old Railroad Labor Board Interpreting Decision No. 1621 of that Board effective March 1, 1923.

"Question 1.-Is it permissable to use an employee in some other class of service to relieve a clerk on his assigned day of rest, whether Sunday or some other day?

* * * * *

"Decision-The decision of .the Railroad Labor Board is as follows:

"Question 1.-No."

"In exchange for the extension of these unemployment benefits, .the Carriers request freedom to transfer or contract out work, abandon or consolidate facilities, cross craft lines, consolidate seniority districts, etc." (Emphasis added)

"The proposals of the Carriers are reproduced fully and discussed later in this report. In summary, however, of the fifteen demands for rules and working conditions changes remaining after sixteen of the original demands were withdrawn, two relate to the effect of putting any recommended proposals into practice and thirteen are designed according to the Carriers to relieve them of burdensome rules and practices which have impaired the efficiency of operations and the quality of service and have increased costs to the Carriers. In varying degrees the proposals relate to the impact of craft or class lines and of seniority on employment and on work assignments."

"Establish a rule or amend existing rules to permit the Carrier * * * ,to designate the craft or class of employees * * * which is to perform the work and the seniority district or districts in which .the work is to be performed."

"The proposal has a double aspect-it seeks a solution of both inter-craft and inter-seniority questions which arise from technological advances.

The Carriers state there are few, if any, rules in the present agreement which specifically limit the right of the Carriers to introduce new machinery and methods, but that, when in doing so, work is involved which was previously performed by two or more crafts or on two or more seniority districts jurisdictional disputes between the Organizations have resulted.

They go on to state that this rule would make it clear that management will have the right ,to designate the craft or class of employees to perform work on assignments created by the introduction of new machines, changed methods of performing work, or technological changes which eliminate or combine work previously performed by two or more crafts or on two or more seniority districts.

If a protest is made by one or more of the crafts as a result thereof and the dispute cannot be settled by negotiations, they state it will then be submitted for final decision to a board of arbitration as provided for by their Proposal No. 16.

* * * * *

Class or craft lines in the industry, and seniority which has been built up over the years based thereon, should, when it is reasonably possible to do so, be protected and not be permitted to be arbitrarily destroyed."

clerk's position on Mondays while the clerk was assigned to perform that work Tuesday through Saturday and no relief position had been established, yet, compare the requests and the report thereon by the Emergency Board reading in part:

"Because of the reasons set forth in our discussion of this proposal, which are based on the record before us, we find we cannot approve it. We therefore recommend that the Carriers withdraw it and ,that they may do so without prejudice either as to the merits of the proposal or to the right to again present and prosecute it in some other proceeding."

with .the possible result flowing from this erroneous Award 14875 wherein the Referee has permitted, or attempted to permit this carrier, under the guise of an interpretation to have precisely that which it has been unable to secure in negotiations.

See too Article III of the February 7, 1965 Agreement wherein Section 1 reads:

"The organizations recognize the right of the carriers to make technological, operational and organizational changes, and in consideration of the protection benefits provided by this Agreement the carrier shall have the right to transfer work and/or transfer employees through the system which do not require the crossing of craft lines. * * *." (Emphasis added)

Thus one can readily see, if -they were uninformed before, that what the Carrier has been unsuccessfully seeking for many years has now been offered by the present Referee under the guise of an interpretation.

Simply stated the author of Award 14875 read into the Agreement, if indeed he considered any Agreement, rights which were never granted the Carrier. The erroneous decision in this case offers to destroy completely the fabric of the 40-Hour Week Agreement and the craft and class lines by setting up an "Interchange" of duties between members of separate and distinct bargaining units.

While many more examples could be cited suffice it to say that the Referee should have followed the rules of the Agreement he was charged with interpreting and the prior awards on the same issues rather than acting as an "efficiency expert" and trying to give Carrier that which they were unable to secure in negotiations.

The Award is in complete error and cannot be accepted as precedent in the face of all the history behind such an attempt to intermingle the separate and distinct classes of employes holding separate and distinct agreements. I therefore dissent.

/s/ D. E. Watkins