' Award No.
85
Case No.
83
PUBLIC LAW BOARD N0. 1790
PARTIES Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employes
D1'ffFUTE:
and
Norfolk and Western Railway Company
STATEMENT 1. The Carrier violated the Agreement between the
OF CLAI:: - parties when i t abolished the position of Chief
Clerk at Gambrinus, Ohio, April 23,
1976,
and
assigned the work thereof to a position which is
partially excepted from the Agreement.
2. G. H. Mercier shall, now be paid eight (8) hours
pay,
at the Chief Clerk's rate beginning April 24,
1976
and
continuing, for
each and every workday, until
the violation is corrected.
FI14DINGS
: By
reason of the Agreement dated July 22,
1976,
and
upon the whole record and all the evidence, the Board
finds that tha parties herein are employe and carrier within the
meaning of the Railway Tabor Act, as arended, and that it has
jurisdiction.
On or about April
9, 1976
there was a Chief Clerk
position at Gaxabrinus Yard covered by all of the rules in the
Agreement. At the same time, there was also a Chief Clerk position
at the freight agency at Canton, Ohio which was exempt from
bidding, bumping and certain other rules of the Agreement. The
yard and agency offices were consolidated commencing April 20,
1976
and the Chief Clerk position at Gambrinus Yard was abolished
effective at the close of business on Friday, April 23,
1976.
Work of that position eras assigned to the Canton, Ohio Chief Clerk
position transferred to Gambrinus Yard. The occupant of the
partially covered Chief Clerk position elected not to transfer to
Gambrinus and he exercised his seniority. The former occupant of.
the abolished covered position was appointed to the partially
covered position. Claimant was regularly assigned to the extra
board at Gambrinus Yard.
Award No. 85
Case No. 83
page
Employes contend that the Carrier had no right to
abolish the covered position without negotiation. Even though
exceptions to the Scope Rule exist, such exceptions must be established
by mutual agreement. Since additional excepted positions may be
added only by written agreement between the Carrier and the General
Chairman, continue the Employes, the Carrier may not abolish a
covered position and arbitrarily transfer the work of that position
to a partially covered position.
There is no question that the Carrier has the right
to transfer a position from one location to another. And the Carrier
has the further right to abolish a covered or partially covered
position, providing all or a substantial portion of the work of
the abolished position is not transferred to a position or an
employe not covered by the Agreement. The question here is whether
or not the Carrier may transfer the work of a covered position to
an employe in a partially covered position.
It is the Carrier's position that there is no rule or
agreement prohibiting the assignment of the work of the abolished
covered position to the occupant of the partially covered position.
In the absence of such a rule or agreement, the Carrier has such a
right.
Once a covered position is established, the work of
that position belongs to an employe within the Scope Rule of the
Agreement. The Carrier may not unilaterally transfer that work
to whomever it chooses outside the Scope Rule. And this is true
whether the work of the covered position is transferred to an
employe totally excepted from the Scope Rule or is partially excepted.
This principle is derived from the application of accepted rules -
of contract interpretation, where there is no contract language
explicitly permitting or prohibiting the Carrier from doing so.
In Third Division NRAB Award No. 11983 the Board held
that "positions or work once within collective agreements cannot
be removed therefrom arbitrarily and the work assigned to persons
excepted from the agreement". The same principle logically applies
where the covered work is arbitrarily transferred to a partially
excepted employe.
' `.PL(3 /7go , Award
No. 85
Case No. 83
page 3
This Claimant actually suffered no loss or earnings
because of the abolition of the covered position and the transfer
of the work to the partially covered position. She has continued
to perform service from the extra board. Punitive damages are
not ordinarily approved.
But Carrier should not be permitted to violate provisions
of the Agreement with impunity. This Board has no authority to
order the Carrier to reestablish the covered Chief Clerk position.
In the absence of such authority, a sustaining award without an assessment of a penalty is an exercise in futility. Carrier could continue
to disregard this finding and contract violation. Where there is .
a wrong there is a remedy.
Employes are requesting that the Claimant be paid
eight
(8)
hours at the rate of the covered Chief Clerk position
beginning April 24,
1976
and for each and every work day thereafter
until the violation is corrected. bore than two years have elapsed
since the claim eras first presentdd. Proceedings under the Railway
Labor Act are slow and tedious. It will best serve the need to
discourage continued and additional such contract violations to
allow compensation to the Claimant for a total of 100 days at the
rate requested.
For. the reasons herein stated, the Board finds that
the Carrier violated the A67reement, that the claim-has merit and
that the Carrier shall pay the Claimant a sum equal to the total
of 1C0 work days at the dally pro rata rate of the Chief Clerk
position abolished on April
23, 1976
and eight (8) hours at the j
applicable rate for each day after the date of this award that the
Carrier continues to so violate the Agreement.
A14ARD
0
Claim is sustained in accordance with the opinion.
Carrier is directed to pay the claim within thirty (30) days of
the date of this award and within each thirty
(30)
days thereafter
that the violations continues. i
`i'-hZC LAW! BOAR NO
1790 '
b
D x DOUNICK, C ai
a
an and eutral Yember
a.
G. BISHOP, fmcilb~f siiber .1.U, Carrier hfember - '
DATED:
Giz
PUBLIC LAW BOARD N0.
1790
PARTIES Brotherhood of Railway, Airline and Steamship Clerks,
-- TO - - Freight Handlers,-Express-and Station Employes
DISPUTE:
and
Norfolk and Western Railway Company
STATEMENT 1. The Carrier violated the Agreement between the
OF CLAIM: parties when it abolished the position of Chief
Clerk at Gambrnus, Ohio, April
23, 1976,
and
. assigned the work thereof to a position which is
partially excepted from the Agreement.
2.
G. H. Mercier shall now be paid eight
(8)
hours pay,
at the Chief Clerk's rate
beginning April
24,
1976
and continuing, for each and every workday, until
the violation is corrected.
BACKGROUND FACTS:
On October
23, 1978,
the Neutral and Employe members
of this Board adopted an award which reads as follows:
Claim is sustained in accordance with the
opinion.
Carrier is directed to pay the claim within thirty
(30) days of the date of this award and within
each thirty (30) days thereafter that the violation
continues.
The opinion, contained in-the Findings, sets forth
the facts in ample detail, which need not here be repeated.
"The question here", the opinion states, "is whether or not the
Carrier may transfer the work of a covered position to an
employe in a partially covered position". Speaking to that .
question, the Board said:
p
10ug
/790
Interpretation No. 1
Award No.
85
Case No.
83
page 2
Once a covered position is established, the work
of that position belongs to an employe within the
Scope Rule of the Agreement. The Carrier
' - ------ -may not unilaterally transfer that work to whom=-
"-"" "" '- `-
ever it chooses outside the Scope Rule. And
this is true whether the work of the covered
position is transferred to an employe totally
excepted from the Scope Rule or is partially
excepted. This principle is derived from the
application of accepted rules of contract
interpretation, where there is no contract
language explicitly permitting or prohibiting
the Carrier from doing so.
Carrier's request for an interpretation of Award No.
85
is contained in a letter dated November
8, 1978.
In that letter,
Carrier contends that the Chief Clerk "position at Gambrinus to
which the work of the abolished position was assigned is subject
to the Scope Rule of the Master Agreement and that the incumbent
thereof must pay union dues . .". Continuing, Carrier states
that "since the Award has not cited any rules) or agreement
provision(s) in support of the statement that this Section
5
position is not . . within the Scope Rule of the agreement . .",
the Carrier requires interpretations with respect to the following:
1. Does the Award mean that the
assignment
of work, formerly done by the occupant of a
fully covered position to the occupant of a
partially excepted position within the
coverage of Rule 1 - Scope of.the Master
Agreement, is prohibited by some rule(s) or
agreement provision(s) and, if so, please
designate the rule(s) or agreement provision(s),
specifying the langua a of such rule(s) or
agreement provisions) supporting that
prohibition; and
2. Does the Award mean that by some rule(s)
or agreement provision(s) the kind of work
which may be assigned to a partially excepted
position within the coverage of Rule 1 -
~~C3 ~79a -
Interpretation
No. I
Award
No.
85
Case
No.
83
page
3
Scope of the Master Agreement is prescribed
or restricted, and, if so, please designate
_,___..,_-__ _ such rule(s) or agreement provisions) --__----.,_
specifying the language of such rule(sj
or
agreement provisions) supporting that
prescription or restriction.
Rule 1(a) (Scope) lists bar title the positions covered
by that Scope Rule. The position of 'Clerks" is so specifically
listed. The position of 'Chief Clerk", as such, is not so
specifically listed. In all probability, the term "Clerks" was
intended to also cover the "Chief Clerks".
Rule
IN
- Scope - which deals with exceptions to
positions covered in the Scope Rule, reads as follows:
(b) For the purpose of providing for exceptions
from the application of some or all of the
provisions of this Agreement, the
Parties have entered into a Supplemental
Agreement dated April 1,
1973,
and designated
"Supplemental Agreement 'A'; " which Supplemental Agreement sets forth certain positions
and employes covered by the scope of this
Agreement (except as provided for in Section 1
of Supplemental Agreement "A"), which shall
not be subject to some or all of the provisions
of this Agreement and designates the provisions
to which they shall not be subject. Said
Supplemental Agreement shall be, and is
hereby, adopted in full and made a part of
this Agreement with the same force and
- effect as though it were fully set forth
herein.
In excepting certain positions and
emFloyes as designated in Supplemental Agreement
"A', it is the intention of the Parties that
seniority shall not govern the filling of
such positions but that the Management shall
have the right to select persons whom, in its
own judgment, it considers best qualified to
fill such positions.
pi.8 1790
Interpretation No.-1
Award No.
85
Case No.
83
page
4
(c) The positions listed in Addendum No. 1
are not within the scope of this Agreement.
(d) Subject to the conditions set forth in
Addendum No. 2 the positions listed therein
are within the scope of this Agreement.
Pursuant thereto, the parties entered into Supplemental
Agreement "A" which became effective April 1,
1973.
The parts of
that Supplemental Agreement pertinent to the issue in this interpretation read as follows:
. . . This Supplemental Agreement has for its
purpose the designation of certainpositions
and employes covered by the Scope of the
Master Agreement (except as provided in
Section 1 of this Supplemental Agreement)
which shall not be subject to some or all of
the provisions of the aforesaid Master Agreement
and the designation of the provisions of the
said Master Agreement to which they shall
not be subject. This is the Supplemental
Agreement
5`
A" referred to under the term
"Exceptions" in the i-tester Agreement.
This Supplemental Agreement is intended
to be, and is, made a part of the said Master
Agreement with the same force and effect as
though it were fully set forth therein.
It is understood and agreed as follows:
SECTION 1. The Master Agreement shall
not apply to laborers on coal and ore docks;
laborers on elevators (except at Lamberts
Point), piers, wharves or other facilities
not a part of regular forces; laborers on
coal piers at Lamberts Point except as provided
for in ffemorandum Agreement dated February 12,
1959;
laborers at Material Yard at Roanoke,
nor to individuals paid for special service
which only takes a portion of their time from
PL
48
n~a -
Interpretation No. 1
Award No.
85
Case No.
83
page
5
outside employment or business; or to individuals
performing personal service not a part of the
duty o' he Raie Railwa__._ .. . ___._ _ __ _ .___.__ _ _ , - _
SECTION 2. 'When making appointments
to excepted positions, consideration shall _
be given employes to whom the Scope Rule of
the Master Agreement is applicable.
SECTION
5.
Only Rules 1, 26(a), 26(b),
56, 57
and
58
of the Master Agreement are
applicable to the positions designated
below and to those that may be transferred
pursuant to Sections 21(b) above or established
pursuant to Section
8
below, and to the'
employes now or hereafter appointed thereto.
The Union Shop Agreement (excluding Section 2)
is applicable to employes appointed to
positions now or hereafter designated in this
Section
5.
We are not here concerned with any of the excepted
positions in Section 1. The Chief Clerk position at Canton, Ohio
was one of the positions excepted under Section
5
above. That
excepted Chief Clerk position was in the freight agency at
Canton, Ohio, which was retained. The Chief Clerk position at
Gambrinus Yard, approximately three miles from Canton, which
was subject to all of the rules of the Master Agreement, was
abolished. Upon consolidation of the yard and agency offices,
the work of the exempt Chief Clerk was transferred to
Gambrinus Yard.
DISCUSSION AND FINDINGS:
The purpose of an Interpretation is to clarify the
meaning and intent of an adopted award. It is the opinion of the
neutral member of this Board that the questions submitted by the
Carrier for interpretation of Award No.
85
do not address themselves
to the meaning and intent of Award No.
85.
They rather seek to _
negate that award, which the Board has no authority to do.
. ~ PL6 X790 _ .
Interpretation No. I
Award No . 85
' Case No. 83
page 6
The Carrier seems to imply that the only tune the
Carrier tray not assign "work formerly done by the occupant of a
fully covered position to the occupant of a partially excepted _ _
position within the coverage of Rule 1" is when a rule or rules -
specifically prohibits such a transfer. We held in Award No. 85
that such an assignment may not be made "whether the work of the
covered position is transferred to an employe totally excepted
from the Scope Rule or is partially excepted". And we also said
that this was so "where there is no contract language explicitly
permitting or prohibiting the Carrier from doing sod. Carrier's
questions are redundant.
It should be noted that 'the Chief-Clerk at Canton,
Ohio is covered by the Master Agreement under Rule 1 - Scope -
for no conceivable purpose other than the right to return to a
covered position whenever he voluntarily or involuntarily is
relieved of his excepted position and the maintenance of certain
limited benefits under Rule 26(a) and (b) that Chief Clerk may
retain and continue to accumulate seniority rights which will
enable him to so return to a covered position when the occasion
arises and to retain that privilege he must continue to pay
periodic dues to the Oranization. Rule-56 pre serves his vacation
rights. Under Rule 57 his sick and comassionate leave benefits
remain valid. And Rule 58 preserves his jury duty pay. In all
other respects, the Master Agreement does not apply to the Chief
Clerk at Canton, Ohio. Except far these minimal benefits, that
Chief Clerk is in all respects a managerial employe.
These minimal benefits under the blaster Agreement do
not authorize the Carrier to abolish at villa covered position and
transfer the work to an employe holding an excepted position.
Coverage of the excepted position under the Scope Rule is very
limited. For the purpose of preserving work for covered employer,
the application is no different then if a covered employe's work
is transferred to a totally excepted employe.
In Award No. 85, we referred to Third Division NRAB
Award No. 11983 and the quoted the well established principle it
enunciates. That principle is equally applicable where covered
work is voluntarily transferred by the Carrier to a partially
excepted employe, such as the Chief Cleric at Cantor., Ohio. Carrier's
right to establish the partially excepted Chief Clerk position at
Canton, Ohio does not include a right or a privilege to transfer
pL3 1790
Interpretation No. 1
Award No.
85
Case No.
83
page
7
covered work of the Chief Clerk position at Garnbrinus to the
partially covered Chief Clerk position at Canton, Ohio, even
though the work of that Chief Clerk was transferred to Gambrinus
Yard. -The fact is that the Carrier appointed an employe to - -
perform that work. He was not assigned under the applicable
seniority rules of the I%aster Agreement.
Accordingly, it is the meaning and intent of Award No.
85
that the Carrier had no authority to transfer the work of an
abolished fully covered Chief Cleric position to a Chief Clerk
partially covered even though no specific rule either allows or
prohibits such a transfer.
PUBLIC LAW BOARD N0.
1790
O
DAVE DOUriCai an a d Neutral Miember
8
S.
G. BISHOP, Employe iiember J`. D. G=REAUX, Carrier AErnber
DATED:
Carrier Member's Dissent to Award 85
Public Law Board No. 1790
This claim was presented on behalf of a regularly assigned extra
clerk (guaranteed 40 hours per week) because the.Carrier abolished ___w_
a fully covered chief clerk position and assigned the work of such
position to a partially excepted position.
At page 2, the Board observes:
Once a covered position is established, the work
of that position belongs to an employe within the
Scope Rule of the Agreement. The Carrier may not
unilaterally transfer that work to whomever it chooses
outside the Scope Rule. And this is true whether
the work of the covered position is transferred to
an employe totally excepted from the Scope Rule
or is partially excepted. This principle is derived
from the application of accepted rules of contract
interpretation, where there is no contract language
explicitly permitting or prohibiting the Carrier
from doing so.
Initially, the statement that work of a position cannot be removed,
"Once a covered position is established" is contrary to this Board's
decisions in Awards 12, 77, 87 and 90. In those awards, the Board
correctly held that the Carrier could assign work to others when
clerks did not perform such work exclusively on a systemwide basis.
Secondly, assigning work of an abolished, fully covered position to
a partially excepted position is quite different from assigning
the work to an employe of another craft,to a non-employe, or to
an unrepresented employe. The language of the Agreement under which
partially excepted positions exist, reads in pertinent parts:
This Supplemental Agreement has for its purpose the
designation of certain positions and employes covered
by the Scope of the Master Agreement (except as provided
pea
~-790 AWD
65
in Section 1 of this Supplemental Agreement) which shall
not be subject to some or all of the provisions of the
aforesaid Master Agreement and the designation of the
provisions of the said Master Agreement to which they
shall not be subject.
JSECTION 5. Only Rules 1, 26(a), 26(b), 56, 57 and 58
of the Master Agreement are applicable to the positions
designated below and to those that may be transferred
pursuant to Sections 4(b) above or established pursuant
to Section 8 below, and to the employes now or hereafter
appointed thereto. The Union Shop Agreement (excluding
Section 2) is applicable to employes appointed to positions
now or hereafter designated in this Section 5.
Neither the applicable agreements nor any logic supports the Board's
treatment of the partially excepted position (assigned the work of
the abolished fully covered position) as being outside the coverage
of the Scope Rule; nor can the occupant of the partially excepted
position be deprived'of the right to perform work assigned to that
position. The Board has attempted in this award to restrict the
work which the Carrier may assign to a partially excepted position,
but it could neither find nor cite any agreement provision supporting
its decision.
Section (7) of the Agreement under which this Public Law Board was
established provides:
"(7) The Board shall not have jurisdiction of disputes
growing out of request for changes in rates of pay, rules
and working conditions, and shall not have authority to
change existing agreements governing rates of pay, rules
and working conditions, and shall not have the right to
write new rules."
The conclusion is inescapable that the Board has exceeded its
jurisdiction by writing a new rule.
Thirdly, the theory advanced in the concluding sentence of the
^2_
.
pL.C3
~~
90
,p w
a 85
paragraph of the award quoted on the first page hereof ignores
the universally accepted principle discussed in the following
awards:
Award 6001, Third Division:
Fourth, although we believe that an agreement between
a carrier and an organization represents a mutual
undertaking to observe the spirit as well asthe
letter of the agreement, and that harmonious, cooperative
union-management relations involve considerably more
than mere observance of the-Letter of the agreement
(e.g., it involves consultation between the parties on
each side's problems affecting the other, even when the
problems are not specifically covered by the agreement),
we hold also to the view that, from the standpoint of
strict construction of an agreement's terns, management's
rights and prerogatives vis-a-vis a labor organization
and its members with whom it has dealings remain unimpaired
except in so far as these rights have been restricted or
removed by government or have been voluntarily limited
or relinquished by agreement with the organization. In
a word, a carrier is free to act in respect to its
employes unless the specific provisions or the general
intent and meaning of an agreement restrict or prohibit
the exercise of such freedom.
and Award 1241, Fourth Division:
This conforms with the fully established principle that
what the management does not bargain away, it retains.
In Award 944, Referee Carey, we reflected this in our
Opinion: "Lie can only interpret the contract as it
is and treat that as reserved to the Carrier which is
not granted to the employes by the Agreement."
No rule or agreement exists which governs the job content of a
partially excepted position and,,therefore, the Carrier's' rights
to assign work to such positions has not-". . . been voluntarily
limited or relinquished by agreement . . .".
In the concluding paragraph on page 2, the Board states:
In Third Division NRAB Award No. 11983 the Board
held that "positions or work once within collective
agreements cannot be removed therefrom arbitrarily
and the work assigned to persons excepted from the
-3-
PLG I-7go Awa $5
agreement". The same principle logically applied where
the covered work is arbitrarily transferred to a partially
excepted employe.
It is not understood how the principle annuciated in Award No. 11983
can be relied upon by the Board in this award and ignored in its
Awards 12, 77, 87 and 90. In Award 90, where part of the work of
a fully covered position was assigned to an employe of a contractor,
the Board held:
In March, 1976, the TOfC,ramps at Radford and Lynchburg,
Virginia, were closed. The preparation of waybills,
freight bills and detention bills formerly handled at
Radford and Lynchburg was assigned to clerical employes
working in Carrier's Agency at Roanoke, Virginia. Other
clerical work, formerly performed by the Claimant at
Radford, was thereafter performed by employes of General
Motors Lines when that traffic moved over the Roanoke
Ramp.
The record shows without contradiction, that General
Motors Lines has operated Carrier's TOFC Ramp at Roanoke
under contract since 1971. Prior thereto that Ramp was
operated by Pitzer Transfer Company for approximately 14
years. Employes of both General Motors Lines and Pitzer
have consistently and continuously performed clerical
work connected with the traffic moving over the Ramp.
And the clerical work absorbed by employes of General
Motors Lines in connection with traffic hauled between
Roanoke and Radford is no different than the clerical
work performed by such employes at Roanoke in the past.
How can an,employe of General Motors Lines (outside the Scope of
the Master Agreement) perform "clerical work" while the occupant
of the partially excepted position "covered by the Scope of the
Master Agreement" be denied that right?
The penalty prescribed by the Board also exceeds its jurisdiction
and runs counter to the numerous awards rendered by the various
divisions of the National Railroad Adjustment Board. The Board
states at page 3:
'G a
.
Q1.L31~Rfl
~~ua 85
This Claimant actually suffered no loss or earnings
because of the abolition of the covered position and
the transfer of the work to the partially covered
position. She has continued to perform service from
the extra board. Punitive damages are not ordinarily
approved.
while holding in Award 30:
- _._ ._____ ___.___ _,
Claimant has suffered no monetary loss. His claim is
in the nature of punitive damages. Based upon the
facts in this case, this Board has no authority to
assess punitive damages.
The claimant was fully employed during the period covered by the
claim. Also, the claimant is junior in seniority to the employe
appointed to the partially excepted position, and would not have
been awarded such partially excepted position on the basis of
seniority had it been one subject to the advertisement and bidding
rules.
For the reasons set forth above, I dissent to Award 85 of Public
Law Board No. 1790.
it
John D. Gereaux
Carrier Member
r' y
S
PUBLIC LAW BOARD N0. 1790
SPECIAL CONCURRING OPINION _
AWARD N0. 85, INTERPRETATION N0. 1
AND EMPLOYEE MEMBER'S ANSWER TO
CARRIER MEMBER'S DISSENT TO
AWARD N0. 85 (CASE 83)
It appears to me that with one exception this Award and Interpretation
correctly disposes of the dispute involved.
The exception lies in the third and fourth paragraphs on page 3 of the
Award in that portion of the "findings" dealing with the penalty for violation
of the Agreement.
By allowing only 100 days' pay for the two and one-half year period
April 24, 1976 through October 23, 1978, I believe the Referee primarily
assessed a form of punishment against the
Claimant because "Proceedings under
the Railway Labor Act are slow and tedious." Needless to say, the Claimant
filed-his grievance within the specified time limits set forth in his Working
Agreement and from that point on the system was the culprit in the slow and
tedious process.
In all other respects, I consider the Award and Interpretation to be
well reasoned and correct.
The dissent of the Carrier Member registers his disappointment in the
fact that the Referee did not agree with his contentions. In consolation, I can
point out that out of the same substances one mind will extract nourishment,
another dismay, and so the same disappointments in life will chasten and refine
one man's spirit and antagonize another's. The dissent consists primarily of
a restatement of the arguments presented by the dissenter to the Referee and
not accepted. The dissent changes nothing and does not detract from the Award
which is based upon sound logic and the application of the Agreement (Scope
Rule), and history, tradition, custom and practice.
Respectfully submitted,
i~E~ a~
s~
5. G. Bishop
Employee Member
Public Law Board No. 1790
Rockville,
Md.
July 19, 1979