,.
C AWARD N0. 2¢
O NRAB DOCKET NO. CL-80535
P CASE NO. 24
SS(1 FILE R-51-1057
BRC FILE 21-10
SPECIAL BOARD OF ADJUSTMENT NO. 169
PART L'S) The Brotherhood of Railway and Steamship Clerks
TO
DISPUTE St. Louis Southwestern Railway Company
STATMENT OF CLAIM
: Claim of the System Committee of the Brotherhood:
(1) That Carrier violated the Clerks' current Agreement when, on April 15,
1952, it abolished the position of Freight Claim Adjuster, Office of General
Freight Claim Agent, Tyler, Texas, occupied by J. F. McDonough, and distributed
the work among other positions, one official position, other Freight Claim Adjuster positions and one position with lesser pay than that of Freight Claim Adjuster.
(2) That Mr. J. F. McDonough be reimbursed for the difference between the
salary paid him after April 15, 1952, and the salary he would have been paid had
the position not been improperly abolished April 15, 1952, until the violation is
corrected.
(3) That the position of Freight Claim Adjuster be reestablished and the
road work now being performed by the Assistant General Freight Claim Agent, formerly performed by the Freight Claim Adjusters, and the office work now being done by
lower daily rated employees be returned thereto.
FINDINGS
: Claimant J. F. McDonough was a Freight Claim Adjuster in the office of
the General Freight Claim Agent and had been a freight claim adjuster
for more than thirty years prior to the institution of this claim. On April 15,
1952, his job was abolished and a great'part of the work previously performed by
claimant was transfe-_red to other employees in the Freight Claim office. The
Carrier has stated that there were three other freight claim adjusters in the
office and that the work required of the freight claim adjusters had decreased to
the point to where three men could do the work that had required four previously.
If that were all that were involved we would have little difficulty with this
claim, because it is recognized that where the work in an office decreases where
less men are needed, Carrier has the right to abolish jobs and assign the work to
other employees in the same office in accordance with the agreement.
This case is burdened with the fact that on April 1, 1952, just fifteen
days prior to the date claimants job was abolished, a position of Assistant
General Freight Claim Ajent was established, which was an official position, a
part of the duties of which required the newly created Assistant General Freight
Claim Agent to travel, investigate and settle claims out on the property, which
claimant avers was work that had been performed by him for over thirty years, and
claim is made that a part of the duties of the freight claim adjuster, whose position was abolished, were taken over by this official not under the scope of the
Agreement and that it was violative of the Clerks? Agreement to assign that part
of the freight claim adjuster's duties to an official.
Award No. 24
The facts develop that the majority of the work of the freight claim
adjusters is office work in handling and settling claims by correspondence, but
that upon occasions through the years freight claim adjusters have been required
to travel out over the property and contact shippers and consignees, particularly
to dispose of claims that they have been unable to dispose of by correspondence.
Other duties are required of them also on the road, such as attending fires and
vrrecks and assisting in the disposition of damaged freight and the settlement of
claims growing out of such fires and wrecks. Freight claim adjusters are recognized on the property as being employees who are regularly required to travel.
There is considerable dispute about the question of how much travel work was being
required of freight claim adjusters at the time the job was abolished; also hots
much time was devoted by officials in the department to traveling, investigating
and settling claims out on the property, although it is clear that as far back as
we have any record of the situation the General Freight Claim Agent, the Freight
Claim Agent, the Assistant Freight Claim Agent and Chief Clerk in the department
on occasions went out and did traveling, investigated and adjusted claims that
could not be disposed of by correspondence in the office. So the picture we have
here is that everybody in the office from General Freight Claim Agent down to the
Freight Claim Adjusters were on occasions required to do this work.
Effective April 1, 1952, when the newly created position of Assistant
General Freight Claim Agent was created and Mr. Garrett appointed to that position,
his position consisted of many duties which required travel in connection with
adjusting claims, such as contacting shippers and arranging for methods for disposing of future claims by correspondence in the office, claim prevention work, contacts with railroad committees set up to constantly study the claims problem, and
to attempt to reduce the origin of claims to a minimum. He was also required to
and did investigate and settle individual claims. The type of work required of the
newly created position of Assistant General Freight Claim Agent was work that had
always been required of officials throughout the past years. The difference here
is more in degree of the work performed than in the act of performing the type of
work that had always been performed by officials in the Freight Claim. office. It
may be that the newly created of.cialdid more traveling in the settlement of
individual claims than any other official in the office had performed, but that
goes only to the degree rather than to the factual situation. It seems that the
work Garrett did was work that had always been performed by officials in the
office. It is significant to note that freight claim adjusters? work is largely
office work and consists of handling claims and disposing of same by correspondence, but that when it became necessary they were subject to being assigned out
on individual assignments by the General Freight Claim Agent to investigate Individual claims on the property. Therefore, taking the whole picture as a whole,
we are* driven to the conclusion that road work, investigating and disposing of
claims, was work that was recognized as not being exclusive work of the freight
claim adjusters but only on occasions when assigned out by the General Freight
Claim Agent and that officials were assigned out in the same manner to perform
this same work. It is not violative of the agreement for an official to make
such investigations.
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Award No. 24
We believe that under all the facts and circumstances in this case that
requiring the Assistant General Freight Claim A.vent to take over more of this work
than probably
had previously been performed by officials in the office was not an
invasion of the rights of the Clerks? Agreement and that we would be in error to
hold that it was the exclusive work of the freight claim adjusters.
AM:
Claim denied.
s Frank P. Dou.glass
Frank P. Douglass, Chairman
/s/ W. E. Straubineer
Isl
L. C. Albert
M. E. Straubinger, Employee Member L. C. Albert, Carrier Hember
(Dissent attached)
Tyler, Texas
April 9, 1957.
f
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EP,IPLOYEF PEbQERQS DISSENT TO AWARD N0.
24
The Award states:
"0n April
15, 1952,
his job was abolished and a great part of the work
previously performed by claimant was transferred to other employees in
the Freight Claim offioe.lt
The Employees showed that ten days after the abolishment of Claimant's position,
Assistant General Freight Claim Agent B. B. Garrett took over working of wrecks
and investigation and adjustment of claims, which work had previously been performed
by Claimantl on July
16, 1952,
three months after the abolishment and redistribution
of the work, Freight Claim Adjusters Pierce and Curry were given instructions to
work Saturday, July
19, 1952,
on accumulated claims; on November 14, 1952, Carrier
approached the Organization with a proposal to establish an Exception B position
in the Freight Claim Department; and on January 1,
1953,
Carrier established a new
position of Ola.m Clerk. All of these facts indicated that the duties of the
abolished position still remained, and that Carrier violated the Agreement in
abolishing Claimant's position, which is evidenced by the following from Award
607:
oqThere is no authority whatever under the Agreement itself for the
discontinuance of a position having full eight hours of duties and
reassignment of such duties to others. Such a practice mould completely nullify the Wage Agreements.;?
The Third paragraph of the Award states:
ROther duties are required of them (Freight Claim Adjusters) also
on the road, such as attending fires and wrecks and assisting in
the disposition of damaged freight and the settlement of claims
growing out of such fires and wrecks.
*-k
although it is clear
that as far back as we have any record of the situation the General Freight Claim Agent, the Freight Claim Agent, the Assistant
Freight Claim Agent and Chief Clerk in the department on occasions
went out and did traveling, investigated and adjusted claims that
could not be disposed of by correspondence in the office.vP
The above statement regarding officials performing work of the Freight Claim
Adjusters prior to the abolishment of Claixnantps position on April
15, 1952,
was
never clearly substantiated by Carrier. During the course of the hearing Freight
Claim Adjuster J. R. Pierce testified he and Claimant J. F. McDonough had traveled
and performed the duties of Freight Claim Adjusters for more than thirty years, and
that it was a rare occasion when an official or the Chief Clerk of the Freight
Claim Department performed the work assigned by bulletin to the Freight Claim
Adjusters. General Freight Claim Agent J. T. Gallaspy and Freight Claim Agent
R. H. Lewis testified they had adjusted some claims out of the office, but were
vague and indefinite concerning how often such trips were made. Carrier made reference to trips made by officials, but did not specify how many of the trips pertained to adjustment of claims, and how many of the trips pertained to meetings
which the officials found necessary to attend.
Employe ifemberls Dissent to Award
2
The fourth paragraph of the Award states:
i?He was also required to and did investigate and settle individual
claims.
~W`
it may be that the newly created official did more
traveling in the settlement of individual claims than any other
official in the office had performed, but that goes only to the
degree rather than to the factual situation.'?
The Employees showed on pages
6, 7
and 8 of their Submission that from April
25,
1952,
through December,
1952,
Mr. B. B.'Garrett went to various wrecks and fires
and made adjustments on numerous claims, which work had previously been performed
by the Freight Claim Adjusters. The dates shown were not all-inclusive, but
merely illustrative. During the course of the hearing the Board was shown evidence
that Mr. Garrett traveled all over the property adjusting claims as small as
010.00. In anat:er to a direct question during the course of the hearing, Mr.
Garrett did not deny that some of the work he was doing would have besn performed
by the Freight Claim Adjusters if his position (Mr. Garrettrs) had never been
created.
The fourth paragraph of the Award further states:
~QIt is significant to note that freight claim adjusters? work is
largely.. office work and consists of handling claims and disposing
of same by correepondence, but that when it became necessary they
were subject to being assigned out on individual assignments by the
General Freight Claim Agent to investigate individual claims on the
property.
Carrierps Exhibit No. 8 reproduced Mr. J. T. Gallaspy9s Advertisement No. 11 of
October
14., 1947,
outlining the duties of a Freight Claim Adjuster as follows:
"Duties: Investigate and make adjustment of claims for loss and
damage and handle all correspondence in connection therewith, contacting Claimants and others when necessary. Handle Prevention
matters and work requiring traveling on assignment of General
Freight Claim Agent.'H
Dir. J. R. Pierce testified that he and Claimant J. F. McDonough performed the above
described duties for more than thirty years until the position of Assistant General
Freight Claim Agent was created on April 1,
1952,
shortly after which the necessary
traveling of their positions was taken over by Mr. B. B. Garrett.
The Employees pointed out to the Board that no Clerical Employee travels unless
instructed by his superior to do so, and, for that reason, the words on the
Advertisement reading: "traveling on assignment of General Freight Claim Agent'·7
did not create a, different situation than in other departments where clerical
employees were required to travel.
The Employees made reference to Memorandum of Agreement dated January
5, 1950$
ection
2
of which provides that the occupants of three Freight Claim Adjuster
positions at Tyler were regularly assigned to travel. Carrier thus agreed that
the Freight Claim Adjusters traveled with regularity.
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Ennlove Memberps Dissent to Award 24.
Carrier substantiated our position that the Freight Claim Adjusters traveled with
regularity by stating on page
6
of its Submission:
tzThe records indicate that during the 12 month period immediately
prior to the time the position was abolished Mr. McDonough made
only 22 trips, or an average of less than two trips a month. The
other freight claim adjuster (Pierce) who performed most of the
other traveling, made only
19
trips during the same period.
Carrier failed to detail the number of days each trip consumed, but during the
hearin3 1Ir. J. R. Pierce testified a trip lasted from one day to an entire week.
The fourth paragraph of the Award further states:
?Thorefore, taking the picture as a whole, we are driven to the
conclusion that road work, investigating and disposing of claims,
was work that was recognized as not being exclusive work of the
freight claim adjusters but only on occasions s-rhen assigned out
by the General Freight Claim Agent and that officials were assigned out in the same manner to perform this same work.;P
In its Submission and Briefs and th3 testimony of officials of the Freight Claim
Department, Carrier did not detail one specific instance where an official performed work of the Freight Claim Adjusters, e::oept Mr. B. B. Garrett, whose activities resulted in our claim.
We substantiated our claim by reference to National Railroad Adjustment Board,
Third Division, Award
6670,
which held:
OWe have frequently held in our awards under like Scope Rules
that the work reserved to employees covered thereby is that
which has been traditionally performed by the classifications
of employes listed therein."
"It is contended on behalf of this Carrier that in order to prevail in this instance that the employes must show that all loading
and unloading of grain doors had been exclusively handled by the
employes in Group
3
of the Clerksp'Agreement: We cannot agree
with that contention. The commodity handled, so long as it is
company freight or handled for the Carriergs account, is of no
material significance. It is the work of loading and unloading
which is involved and of importance.,f
From Award
5579:
"The fact that the services involved are not reserved exclusively
to clerks under the Scope Rule does not justify the assignment of
such duties on rest days to employes of another craft or class in
violation of those specific rules.·t
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Ennlovee ifemberts Dissent to Award 24
From Award
7427:
;?Carrier would distinguish Awards
5622, 5623
and
5772
from this
case on the basis that the conclusions on those cases were reached
by reason of the EXCLUSIVE assignment of the work involved to
clerks for five days per week. In this case, the Carrier argues,
the assignment was not exclusive because of the occasions on which,
for the sake of convenience, the agent-telegrapher did this kind of
work durinz Claimantqs regular assignment. However, we do not
think that the use of the phrase ?exclusively assigned? in those
cases has the restricted meaning which Carrier would give to it;
namely, that the clerk did every bit of the work. Rather, we
think the meaning intended was that the work was regularly, ordinarily and customarily accomplished by the clerks as part of the
regular duties of their assignments - a stabs of facts which is
admitted to be so in this case. We think that the work in question was pexclusivelyp assigned to Claimant within the meaning
of that phrase as used in Awards No s.
5622, 5623
and
5772
and
that the principles and findings of those awards, involving the
same parties as here, require that the claim be sustained in
this case. We thin_ it is not inconsistent to hold that an
agent-telegrapher may perform certain occasional clerical work
as a matter of convenience during the clerkta regular assignment, but that such work may not be assigned entirely to the
telegrapher in lieu of calling a clerk on the rest day of the
Clerkps position.0
From Award
1673:
itThis Board has consistently held that it is a violation of the
Clerkat collective Agreement to assijn work within the scope of
the agreement to employee hoidinTexcepted positions. See Awards
637,
521, 523, 631, 731, 751, 753, 754, 1209, 1254, 1300,
and
1404.
Nor
may the Carrier arbitrarily take work which is under the current
agreement and assign it to an excepted position. Such a prerogative
would be destructive of the agreement. See Awards
631, 637, 736,
and
751.
·7
For all of the reasons stated above, I vigorously dissent from a seriously erroneous conclusion by the Board in this Award.
s ?I. E. Straubin-er
II. E. Straubinger, Employee Nember.
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