Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27940
Third DIVISION Docket No. CL-28338
89-3-88-3-106
The Third Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10250) that:
1. Carrier violated the TCU (formerly BRAC) Agreement when it abolished the Star Agent's positio
month on the date of October 15, 1985, at Poplar Bluff, Missouri and; on the
date of October 16, 1985, established lower rate five (5) day position of OCC
Clerk/Telegrapher, rated $99.02 per day with relatively the same class of work.
2. Carrier's action in the instant case was in violation of the Schedule Agreement, expressly Ru
3. Carrier shall now be required to compensate Mr. D. W. Howell and/
or his successor(s) for the difference in the daily rate of pay of OCC Clerk/
Telegrapher rate $99.02 per day and that of his former Star Agent position
rate of pay of $2,787.23 per month beginning October 16, 1985, and continuing
each work day thereafter, Monday through Friday and; including any additional
work on Saturday and Sunday each week to be pro-rated on actual time worked
covering the difference in the two (2) above rates on a punitive basis until
such time as the violation of the TCU Agreement is corrected and; to include
all subsequent general wage increases."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Form 1 Award No. 27940
Page 2 Docket No. CL-28338
89-3-88-3-106
On October 15, 1985, Carrier abolished the Star Agent's position at
Poplar Bluff, Missouri. The position was a six (6) day monthly rated job that
paid $2,787.23 per month. On October 16, 1985, Carrier established a lower
rated five (5) day position of OCC Clerk/Telegrapher, rated $99.02 per day.
The Organization contends that Carrier violated Rule 31(b) of the Agreement by
so doing. That Rule reads as follows:
"Rule 31
(b) Established positions shall not be discontinued
and new ones created under a different title covering relatively the same class of work for the purp
of reducing the rate of pay or evading the application
of these rules."
Carrier relied heavily on its explanation of what has happened over
the years in relation to the Star Agent position to support its action:
"The Star Agent at Poplar Bluff at one time handled cash
and accounts receivable for the Railroad, responded to
shipper car orders, handled customer complaints and, as
indicated by the title, served as Railroad's Agent for
a specified territory. With the increased use of computers, improved communications and centralizati
many of the accounting, customer service and car order
functions, the need for the Star Agent position has
diminished. The Star Agent work at Poplar Bluff diminished to the point where the position was no lo
needed and was being asked to perform lower rated duties
in order to provide the position with eight (8) hours of
work per day. When authority was granted to close the
agency at Poplar Bluff, all Star Agent work disappeared
completely. At that time, the Carrier established another
Telegrapher Clerk position at Poplar Bluff in accordance
with Rule 31(a) of the Controlling Agreement. Because
the position was established after the Star Agent position performed Telegrapher Clerk work, the rat
at $99.02 per day in accordance with all other Telegrapher
Clerk positions at Poplar Bluff."
This Board has reviewed the record and we are persuaded that Carrier's position must prevail. We
place because a local law required it. Once the law was changed, Carrier
moved to abolish a position that was no longer required. The Organization has
not carried its burden in this instance and the Claim shall be denied.
Form 1 Award No. 27940
Page 3 Docket No. CL-28338
89-3-88-3-106
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest ,
Nancy Y.rVrver - Executive Secretary
Dated at Chicago, Illinois, this 6th day of June 1989.
LABOR MEMBER's DISSENT TO
AWARD 27940, DOCKET CL-28338 & AWARD 27941, DOCKET CL-28341
(REFEREE DENNIS)
The Majority opinion has erred in both cases at bar and has issued
decisions which are contrary to precedential Award 25109 decided on the
same property involving the same parties and same question which sustained
the Organization's position. The Majority Opinion in both instances has
ignored that Award. Ignoring that lead Award has led to these two palably
wrong Awards.
For the sake of brevity we will only reiterate the facts and our
position in Award 27940 as they apply equally in Award 27941.
Award 27940 is a case wherein the Carrier abolished on October 15,
'q85, the position of Star Agent/Telegrapher No. 006, Poplar Bluff,
.issouri, rated $2,787.23 per month on the pretense of a "closing of an
agency", and then simultaneously bullentined a new position of OCC Clerk/
Telegrapher a five (5) day position, rated $99.02 per day to be effective
October 16, 1985, doing relatively the same work at a lower rate in violation
of Rule 31 (b).
Rule 31 (b) states:
"(b) Established positions shall not be discontinued
and new ones created under a different title covering relatively
the same class of work for the purpose of reducing the rate
of pay or evading the application of these rules."
It stands unrefuted that the duties. of the two positions in question
were and are as follows:
STAR AGENT/TELEGRAPHER DUTIES OCC CLERK/TELEGRAPHER DUTIES
1. Post general orders and 1. Same Duty
general notices
2. Phone meal orders to Illmo 2. Same Duty
for Train and Enginmen
STAR AGENT/TELEGRAPHER DUTIES OCC CLERK/TELEGRAPHER DUTIES
3. Work with CMS (Crew Management 3. Same Duty
System) regarding trains called
4. Deliver pay checks and various 4. Same Duty
other duties as may be assigned
5. Updating all car movements from 5. Same Duty
Trainmens switch lists
6. Copying car orders from customers 6. Same Duty
s making switch lists.
7. Getting day's billing from customer 7. Same Duty
6 sending by computer message to
St. Louis for handling
8. Making supply requisitions for station 8. Same Duty
supplies 6 caboose supplies
9. Ordering fuel 8 ice from local suppliers9. Same Duty
for engines
s
cabooses
10. Make written instructions to switch 10. Same Duty
crews 6 over-the road crews i.e.,(pick
up, set-outs, spotting instructions for
yards, industries s rip tracks.)
11. Miscellaneous duties including but 11. Same Duty
not limited to: tracing cars,
coordinating customer s mechanical
forces needed for prompt repair and
movement of cars.
12. Work with the Chief Dispatcher 12. Same Duty
13. Some minor Accounting Duties
The only difference in the two positions are Duty No. 13. Twelve
(12) out of the thirteen (13) seperate major duties are still being done
by the lower rated position. The Majority Opinion would. ask us to believe
that all the other twelve (12) duties are of a lower rated nature and that
the Star Agent's.higher rate is based upon one (1) duty only. We do not
believe that reasoning is logical nor do we think the majority opinion
should have bought such a erroneous argument offered by the Carrier.
Rule 31 (b) mandates that established positions shall not be discontinued
and new ones created under a different title covering relatively the same
class of work for the purpose of reducing the rate of pay or evading the
application of these rules.
we submit that a more careful reading of the facts revals it is clear
" at in the instant case at bar, the Carrier abolished the higher rated
position of Star Agent, Poplar Bluff, Missouri, established the lower
rated position of OCC Clerk/Telegrapher the following day doing relatively
the same calss of work for the purpose of reducing the rate of pay and
evading the application of the Rules.
It is equally clear that this Board has repeatedly stated that the
duties of a newly created position need not be identical with those of a
discontinued position, all that is required is that the newly created
position does relatively the same class of work. The record is clear
that is exactly what happened in this instance.
The Majority Opinion has ignored the correct facts and precedential
Award 25109 which has led them to render Awards 27940 and 27941 both of
which carry no precedential value. Both Awards are palably wrong and
r-quire strenvous dissent.
William R. Miller
Date: June 9, 1989
RESPONSE TO LABOR MEMBER'S DISSENT
TO
AWARD 27940, DOCKET CL-28338
AND
AWARD 27941, DOCKET CL-28341
(REFEREE DENNIS)
The Dissent lists 13 duties that had been performed by the
Star Agent/Telegrapher position and argues that 12 of such duties
likewise are performed by the newly established OCC Clerk/Telegrapher
position. It refers to the thirteenth duty as "Some minor Accounting
Duties." The record on the property, set forth in the Majority
decision, shows the "minor" duties of the Star Agent position
included the handling of cash and accounts receivable for the Carrier,
the responding to shipper car orders, the handling of customer complaints, and, as indicated by the
Carrier's Agent for a specified territory.
In substance, the Majority held that it was the thirteenth duty
that separated the Star Agent position from that of OCC Clerk positions
and which justified a higher rate of pay. Accordingly, when such duties
disappeared, there was no basis in the Agreement or logic that would
require the Carrier to continue to pay the higher rate of a position
that no longer existed. Indeed, as was pointed out in Award 27940,
the duties of the new position at Poplar Bluff, Missouri, perform
precisely the same duties as other clerks working at that location,
all of whom are designated OCC Clerks.
I /~/-J
, 144
M. W. Finger t
R. L. Hicks
M. C. Lesnik
P. V. Varga
· J. E. Yost