STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Division, BRAC, on the Chicago and North Western Railway, T-C 5775, that:
There is offered into evidence an Agreement between the parties, effective April 1, 1950, as amended and supplemented, which is on file with your Board and by this reference is made a part of this submission.
The claim was timely presented, progressed, including conference with highest officer designated by Carrier to receive appeals, and has remained declined. The Employes, therefore, appeal to your Honorable Board for adjudication.
The claim arose when the Carrier entered into an agreement with the Lake Superior and Ishpeming Railroad establishing a joint agency at Ishpeming, Michigan, where prior thereto it had maintained a separate agency with a work force of an Agent-Telegrapher and Telegrapher-Clerk, both of which came within the Scope of the Telegraphers' Agreement. As a result of this consolidation, the former agent of the LS&U Railroad was assigned to a newly created Telegrapher-Clerk position established in the CNW station, and was permitted The Carrier asks that the claim be dismissed by this Division on the ground that the Organization failed to exhaust the remedies available to it in Section 13 of the Washington Agreement of May, 1936.
"It is uncontroverted that the action taken by Carrier in the abolishment of positions and transfer of the work to M-P employes was a 'coordination' within the meaning of that term as defined in Section 2 (a) of the Washington Agreement. The issue narrows as to whether a carrier may derogate the existing collective bargaining contract in the absence of fully complying with the procedures and obligations attendant to a 'coordination' imposed by the Washington Agreement.
As we read Section 5 of the Washington Agreement it imposes an absolute bar to carrier making an assignment of employes necessary to a 'coordination' unless it is done on the basis of an agreement between the carriers and the organizations of the employes affected. If the parties fail, through negotiations, to reach the indispensable agreement, which is a condition precedent to any assignment of employes' the burden is upon the carrier to have the dispute resolved by submitting it for adjustment in accordance with Section 13. It is the Carrier who seeks the privilege of effecting a 'coordination' with the protections afforded by the Washington Agreement. Therefore, it is the Carrier who must fully comply with the mandates of the Washington Agreement to establish it as a defense to what, otherwise, would be a violation of the collective bargaining agreement.
Where, as in this case, the carriers and organizations of the employer affected failed, through negotiations, to reach an agreement as to the assignment of employes made necessary by the proposed 'coordination,' Carrier was not free to arbitrarily assign employes, as it unilaterally chose, and realize compliance with the Washington Agreement. Carrier had a remedy under Section 13 of the Agreement. Until that remedy was exhausted and Decision issued, Carrier was not to effectuate the 'coordination: Such a Decision may have directed the Carriers to make an assignment of employer entirely different than that which Carrier unilaterally and arbitrarily did.
Carrier having failed to comply with the Washington Agreement we find that Agreement is not a defense to Carrier's violation of the collective bargaining Agreement. See and compare the following Decisions of referees appointed pursuant to Section 13 of the Washington Agreement: Docket No. 57, Docket No. 70 and Resubmitted Docket No. 70."
We find the above holding to be sound and it is adopted herein. See also Awards 14401, 15028, 15087, 15460. Part 1 of the claim will be sustained.
The record does not contain sufficient information upon which to base a firm decision as to the reparation required. Therefore, we will remand this portion of the dispute to the parties directing them to determine from examination of the Carrier's records, the dates when the LS&I employe handled train orders or other work exclusively reserved to C&NW telegraphers under the subject Agreement. The Carrier then shall compensate a C&NW tele-
violation of the Washington Job Protection Agreement. A copy of this letter is attached as Carrier's Exhibit "H." The General Chairman has thereafter progressed this same claim in two separate sets of correspondence, one alleging violation of the schedule agreement and the other alleging a violation of the Washington Agreement. The "Statement of Claim" in the notice of August 14, 1970 from the President of the T-C Division, BRAC, to the Executive Secretary of the Third Division, N.R.A.B., indicates that the organization has chosen to present a claim involving an alleged violation of the schedule agreement to the Third Division. It is not clear whether it is the intention of the organization to present this same dispute to the Disputes Committee established under Section 13 of the Washington Agreement, or whether their action in submitting this dispute only to the Third Division recognizes that the claim which the General Chairman has progressed in parallel sets of correspondence constitutes one and the same dispute.
OPINION OF BOARD: On March 20, 1969, the Carrier had an AgentTelegrapher and one Telegrapher-Clerk employed at Ishpeming, Michigan. On that date notice was servied upon the employes to coordinate its force at Ishpeming with the forces of the Lake Superior and Ishpeming Railroad, under the provisions of the May, 1936 Washington Agreement. Conferences were held but no agreement was reached providing for coordinating the work forces of the two Carriers.
Claim teas then initiated by the Petitioner contending that the Telegraphers' Agreement was being violated, commencing August 4, 1969, and continuing thereafter, on each date that an employe not coming within the Scope of the Agreement was permitted to perform the work of the second shift Telegrapher-Clerk position at Ishpeming, Michigan, which is the claim before the Division.