TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
1. Carrier violated the Telegraphers' agreement when beginning on July 10, 1961 and continuing thereafter it has improperly relieved Agent-Operator H. C. Cram at Mt. Jewett by Mrs. Eva Huston, an employe from the Clerk's roster, not covered by the Telegraphers' agreement. Since July 19th Mr. Cram has been diverted to work various agency positions within his seniority district.
2. Carrier violated the agreement when beginning in July 1961 and continuing thereafter it has improperly used Mr. W. A. Woodin, a MofW employe, not covered by the Telegraphers' agreement to perform service at NE Tower, Niobe Junction.
3. The Carrier shall because of the violation set forth in part one of this Statement of Claim, compensate Mr. H. C. Cram for a day's pay (8 hours) at the rate of his regular position and for any expenses incurred each day, Monday through Friday that he was improperly relieved, in addition to any other wages paid him by the Carrier, as long as violation continues.
In addition Carrier shall compensate the senior idle employe, extra in preference, a day's pay for each day, Monday through Friday at the Pro rata rate of the Agent-Operator position at Mt. Jewett, so long as violation continues. Carrier shall furnish the names of employes eligible to receive compensation and shall permit a joint check of records to determine the dates of violation and the amounts due employes. It is known that extra operator H. F. Magiera was idle beginning the week of August 14th, 1961.
4. The Carrier shall because of the violation set forth in part two of this Statement of Claim, compensate the Senior idle employe, extra in preference, a day's pay for each day that Mr. Woodin was improperly used at "NE" tower.
EMPLOYES' STATEMENT OF FACTS: The facts in relation to Paragraph 1 of the Statement of Claim shall be given first. Agent-Operator Harry Charles Cram was the regularly assigned occupant of a position, so classified, at Mount Jewett, Pennsylvania. Said position is the only position at Mount Jewett, and is assigned Monday to Friday with Saturday and Sunday rest days, with work hours of 8:00 A. M. until 5:00 P. M. which includes one hour for lunch.
Commencing July 10th, 1961, Carrier used Mr. Cram on other positions, relieving other employes for their vacations. During the period Mr. Cram was diverted to cover other positions than his own, his position at Mount Jewett was covered by a Mrs. Eva Huston, who is an employe of Carrier and who holds seniority on the roster of employes represented by the organization representing her craft or class, namely, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.
Paragraph 2 of the Statement of Claim deals with a situation where, commencing in July 1961, Carrier used the services of a Mr. William Andrew Woodin, an employe holding seniority in another craft or class, namely, Brotherhood of Maintenance of Way Employes, and who was used to cover vacation vacancies of ORT employes at "NE" Tower, Niche Junction, New York.
The first part of Paragraph 3 of the Statement of Claim adverts to Paragraph 1 and requests payment of 8 hours' pay, and expenses, for Mr. Cram for each day he was improperly relieved, in addition to any other wages he was paid.
The second part of Paragraph 3 also relates to Paragraph 1 and requests payment of 8 hours straight time pay each day for the senior idle employe, preference given to extras, for each day that the clerk (Eva Huston) was wrongfully assigned to work the position at Mount Jewett. The paragraph in discussion also requests that Carrier furnish the names of eligible claimants; that the dates of violations and amounts due said claimants be determined by a joint check of Carrier records.
Paragraph 4 of the Statement of Claim makes a compensatory request similar to that contained in the last above paragraph, for the work performed by the Maintenance of Way employe, under Paragraph 2.
The bodies of the letters exchanged between the parties in the property handling of this case are hereinafter below reproduced, following the prefacing identification of each such letter:
To what extent this violation of the Telegraphers' agreement has been carried, I have not ascertained, as yet. However, I do intend to make a complete investigation of this situation and for every violation that I find, there will be a time claim filed.
MR. W. F. WILSON, SUPERINTENDENT, TO
GENERAL CHAIRMAN MATTHEWS, AUGUST 14, 1961
"Your letter July 24, File 14-N-58 relative employes covered by agreements other than 'The Order of Railroad Telegraphers' being used to relieve employes assigned to positions covered by the Telegraphers agreement.
Due to these men being off and using R. S. Dotson as Car Distributor place of Mr. R. B. Gardner, it resulted in a shortage of men to cover vacation schedule. To overcome this, Mrs. Eva Huston, a furloughed clerk, was used to cover the Agent's position at Mt. Jewett, and Mr. W. A. Woodin was used to cover vacation assignment at NE Junction. Mr. Woodin was also a furloughed MofW employe. Both were transferred to the Operators' Roster temporarily to cover these jobs and are subject to recall in their own department.
This was done to give our own furloughed employes the work instead of hiring inexperienced men to cover these positions. Can see no violation of the agreement by doing this as all available extra men were being used."
"The General Committee of The Order of Railroad Telegraphers presents the following claim:
J. J. FITZGERALD, CHIEF TRAIN DISPATCHER,
TO GENERAL CHAIRMAN MATTHEWS, SEPTEMBER 11, 1961
"Your letter September 5th claiming violation of Telegraphers Agreement account using Mrs. Eva Huston an employe from the clerks roster to relieve Mr. H. S. Cram as agent at Mt. Jewett, Pa., on July 10th, also using Mr. W. A. Woodin an employe on the clerks roster as operator at 'NE' Junction Niche, N. Y., indicates you did not know that both of these employes were furloughed and out of work. Both were transferred to the Telegraphers roster when used.
OPINION OF BOARD: While Carrier denies it violated the Agreement it admits the facts as alleged in paragraphs 1 and 2 of the Claim. For reasons stated in Awards Nos. 14432 and 14433 we find Carrier violated the agreement as alleged. Award No. 14433 involved the same parties as herein.
Carrier argues that because the employes for whom compensation is prayed are not named Article V, 1 (a) of the August 21, 1954 National Agreement compels this Board to dismiss. We find that the identity of the employes can be readily ascertained and this satisfies Article V, I (a).
As to part 3 of the Claim, we will deny the prayer for compensation to Claimant Cram because: (1) he was "diverted to work various agency positions" at his own request for his own convenience; and (2) there is no evidence that Cram suffered any loss of wages or incurred expenses. But we note that in acceding to Cram's request Carrier violated the Agreementand employe by his individual actions may not absolve an employer from its legal obligation to maintain a collective bargaining agreement. For the days Mrs. Eva Huston relieved Agent- Operator Cram at Mt. Jewett, Carrier sball compensate the senior idle and available employe, extra in preference, a day's pay for each of said days.
As to part 4 of the Claim, for the days Mr. W. A. Woodin performed service at NE Tower, Niobe Junction, Carrier shall compensate the senior idle and available employes, extra in preference, a day's pay for each of said days.
Except to the extent prescribed above we will deny parts 3 and 4 of the Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: