NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Gene T. Ritter, Referee

1. Carrier violates the terms of an agreement between the parties hereto by establishing a position of Station Clerk at the Azusa-Glendora agency, under an agreement of another craft and elms to perform Assistant Agent's work incidental to the Azusa-Glendora, California agency, and concurrent therewith declared abolished the position of Assistant Agent, Azusa-Glendora, California, subject to said Telegraphers' Agreement.

2. Carrier shall, because of the violation set out in paragraph 1 hereof;

(a) Restore William Humbly to the Assistant Agent's position at the Azusa-Glendom agency from which he was improperly removed.

(b) Compensate said William Hambly a day's pay (8 hours) at the hourly rate of the Azusa-Glendora Agent's position commencing January 12, 1961, and each work dray thereafter so long as the violation complained of continues; plus actual necessary expenses incurred by reason of Carrier's improper act,

(c) Compensate other extra or regular assigned Agents or Assistant Agents who have, by reason of Carrier's violative act, been deprived of work, plus actual necessary expenses, commencing January 12, 1961, and for each work day thereafter so long as the violation complained of continues.

In substance, the Telegraphers' Organization in this instance urges that Carrier has contracted the same work to separate Organizations and should be required to honor both contracts. An advocate for the Clerks' Organization was- present at the panel discussion and concurred with this theory.

The Scope Rule of the effective Agreement is general in nature and the Organization has failed to establish through competent evidence that Telegraphers historically and customarily perform the work claimed in this instance to the exclusion of Clerks. There are many Awards upholding Carrier's right to abolish positions and re-assign any remaining work that is not exclusively Telegraphers' work to other crafts. Award 14839 (Wolf), 14744 (Rambo), 13243 (Englestein), 12695 (Hamilton), and 11120 (Dolnick), and many others.

It is axiomatic that the Carrier has the prerogative of managing its business and may abolish positions and re-assign remaining work as it deems necessary unless specifically restricted by the Agreement. In this instance, the Organization has failed to cite a rule violation by the transfer of work from Telegraphers to Clerks.

Also, there are principles of law involved in this disput~· that can not be passed unnoticed. As stated above, the work involved in this dispute was awarded to the Clerks' Organization in Award 9546 of this Board. It is also noted, as stated above, drat the Telegraphers' Organization issued due notice giving tire right to protect this position by whatever action they deemed necessary. The record also discloses that the Tel·_~graphers' Organization declined to take part in this hearing. Award 9546 became final and binding upon all of the parties including the Telegraphers' Organization. Also, Award 9546 became res judicata to the involved issue. 46 Am due. 2d 415 states as follows:

"The doctrine of res judicata is especially applicable where protracted and multiple litigation of similar issues appears to be in the offing. Indeed, it is a fundamental principal of jurisprudence that material facts or questions which were directly in issue in a former action, and were there admitted or judicially determined, or conclusively settled by a judgment rendered therein, and that such facts or questions become ms judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form that the issue may take in the subsequent action. In this respect, it is worthy of notice that the non-existence of a fact may be established by a judgment, no less than its existence; a party may be precluded under the doctrine of collateral estoppel from attempting a second time to prove a fact that he sought unsuccessfully to prove in a prior action.

The rule precluding the relitigation of facts ci questions formerly in issue applies whether the issue decided in the earlier action was presented as a ground of recovery or as a defense, or whether the issue was decided in the earlier action in favor of plaintiff or the defendant, and even though tire subsequent action is a different form of proceeding, is upon a different cause of action, and involves a different subject matter, claim or demand, than the earlier action. In such cases, it is likewise immaterial that the two actions have a different scope, or are based upon different grounds, or are tried on different theories, or are instituted for different purposes, and seek different relief."

Had no notice been issued to the Telegraphers in Docket No. CL-9418, the Telegraphers' position would have probably been stronger in this instance. However, in this ease, the claim of Telegraphers is barred because of the doctrine of res judicata.

It appears to this Board that Carrier has acted in good faith throughout the history of this dispute. The Carrier did not arbitrarily or unilaterally abolish the Telegraphers work involved herein. Carrier acted at the direction of the National Railway Adjustment Board whose decisions are final and binding in all instances where notice has been sent to all interested parties. Certainly, the Telegraphers are interested parties in Docket CL-9218 which resulted in Award 9'546 of this Board. This claim will be denied.

That the parties waived oral hearing;

That the Agreement was not violated.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: E. A. Killeen

Executive Secretary