ORG. FILE 8-1 AWARD NO. 19
CARMH FILE D-2706 CASE N0. 19
NRAB FILE CL-9364
SPECIAL BOARD OF ADJUSTMENT N0.
194
PARTIES The Brotherhood of Railway and Steamship Clerks,
Freight Handlers, Express and Station Employes
TO
DISPUTE St, Louis-San Francisco :Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the terms of the currently effective
agreement between the parties when on or about February
7,
1956, Group 1 Yard
Clerks at the Ewing Avenue Yard Office Building were instructed and required
to perform all the janitor duties which are usually and customarily assigned
to Group 2 Janitors at a time when Group 2 employes were available to perform
the work,
extra
(2) Joseph Allen, the senior available/Group 2 employe, and/or
his successors now be paid for a call on February 8, 1956, and each succeeding
day on which Group 1 employes performed Janitor work at Ewing Avenue, until
corrected,
FINDINGS: Special Board of Adjustment No, 194, upon the whole record and
all the evidence, finds and holds:
The Carrier and Employes involved in this dispute are respectively
Carrier and Employes within the meaning of the Railway Labor Act as amended.
This Special Board of Adjustment has jurisdiction over this dispute.
This claim presents the question whether the Agreement prevents
the Carrier from assigning janitor work to Group 1 Yard Clerk positions.
Rule 5 creates Seniority Districts and Rule
4
creates three
Seniority Groups as follows:
Group 1: Employes who regularly devote not less than four hours per day to
clerical work (defining such work as keeping records and accounts
and so on).
Group 2: "All Telephone switchboard operators (System Roster),
"B" Porters and Janitors, General Office Buildings, St. Louis
and Springfield.
' "C" Other specifically described office and station employes
such as ticket and waybill assorters, janitors and so on.
Grow: Employes performing manual work not requiring clerical ability.
AWARD N0. 19
Rule
6
requires the posting of seniority rosters in each seniority
district, separaTe
as
provided in Rule !y into groups.
Under Rule 3(e) 1 employes, promoted from one seniority group
to another, retain and accumulate seniority on the roster from which promoted.
Under Rule 3(e) 2 employes in Group 1 "shall be permitted to use
their Group 1 seniority'? on Group 2 'Roster
°C11
and Group 3 positions; and employes
in Group 2 Roster "C" and Group 3 "shall be permitted to exercise their seniority
on either roster in the other." This subsection of the Rule goes on to provide:
"In any case of exercise of seniority not acquired by actual
performance of work on position covered by roster, such
seniority shall not be exercised until employe has exhausted
seniority rights on regular assigned positions in the group in
which employed."
The Superintendent of Terminals has general supervision over all
station and yard clerical forces in the St. Louis Terminals including:
Mile Post
Seventh Street Freight Station
Ewing Avenue 'Yard 0.8
Chouteau Avenue Yard 3.1
Tower Grove Station 3.3
Cheltenham Station
5.1
Lindenwood Yard 7.1
On the date under claim there were five Yard Clerks employed in
Group 1 around the clock seven days a week, at Ewing Avenue. Their principal
duties consisted of checking, carding and interchanging cars and preparing
related reports. There were also janitor positions in Group 2 as follows: A sevenday janitor position at Lindenwood and another at Tower Grove; and a regularly
assigned relief position which protected the four rest days on each of the two
seven day positions, This regular relief position was also assigned janitorial
duties at Ewing Avenue one day each week which filled out the five-day relief
assignment. There were also two janitor positions at Seventh Street Station.
Finding the janitorial service thus provided at Ewing Avenue to be
insufficient, the Carrier instructed the Yard Clerks at Eying Avenue Itto see that
this office is swept and kept clean" (offices of Car Inspectors on first floor; and
yard office and offices Yardmaster and Special Officers on second floor). The
regular relief Group 2 position continued to perform janitor work one day each
week at Ewing Avenue as before.
First. While it is true that the work comprised in each of these three groups is
defined in considerable detail, the Agreement does not make the work falling
into any given group the exclusive work of that group.
On the contrary, the entire scheme of classification into groups
turns upon the preponderance of group duties assigned to a position and this presupposes the assignment of work across group lines.
-2-
AWARD 19
Thus, a position may be assigned a considerable amount of work
defined as Group 1 work, but the position is nonetheless classified in Group
2
if
the preponderance of work assigned to the position falls within the definition of
Group
2
work. Conversely) if a position is assigned four hours of work defined
as Group 1 work, the position is classified in Group 1 and this presupposes the
additional,6ssignment of other than Group 1 work to that position. Likewisep in
practice positions are classified in Group
2
or Group
3
upon the basis of the
preponderance of Group
2
or Group
3
work assigned to the position.
It follows that, under this Agreement, the establishment of these
three groups does not have the effect of limiting positions to the performance of
the defined. work of one particular group, nor does it have the effect of making
the defined work of one particular group the exclusive work of positions in that
group, Positions are divided into three distinct groups but the work is not so
divided.
Second. The establishment of these three groups does have the effect of identifying
three different types of skills for pay purposes; and although a position may
combine the work of all three groups, the preponderance of work assigned, not
merely the performance of any higher rated group work, determines the classification of the position and hence the rate of pay.
The establishment of these three groups and the maintenance of
separate group seniority rosters also identifies the three groups for purposes of
reduction cf force,, promotions and displacements.
Although seniority rights attach to positions., Third Division
Adjustment Board awards have nevertheless found a violation of seniority rights
when work is removed and assigned to strangers even when there is no express rule
forbidding such a transfer.
Third. There are numerous Third Division awards holding that in the absence of
a rule to the contrary, seniority rights are violated when work is transferred from
one seniority district to another (Award
4076
and others); and this principle has
been applied when work is transferred from one seniority group to another in cases
where the work is defined and divided into exclusive groups or where there is a
mutually agreed upon interpretation as in Awards
6021
and
1306
or where there has
been an established practice (Awards
6021, 5895 5413-39 5388
4543)
4490 3656,
2585
and
1306).
But the holdings have been otherwise where, as here, the Agreement does not altogether prohibit the assignment of work across group lines (Awards
6140
and
2011;
and see Award
7167).
Award
2011
denied a claim such as this and distinguished Award
1459
which sustained such a claim in reliance on Award
1306
saying that the
questions involved in Awards
1459
and
1306
were "almost identical." Hut the
rule in sustaining Award
1306
carried a mutually agreed upon interpretation which
read:
"It is mutually agreed that the purpose and intent of the
Clerks' contract is to segregate the various classes (see Classes
11
2
and
3,
Rule
27)
of duties as far as conditions will permit,
and that in case where the work of a given class on an abolished
position is distributed to another position it willb assigned to
other employes holding positions of the same class when such
employes are available and qualified,"
-3-
A4dA:u7 N0. 19
and there is no such interpretation here.
There is evidence of practice before us dating back to
1924,
but
it will not support the conclusion urged by the Organization
which is
along the
lines of the above quoted interpretation. In practice, work has been reassigned
across group lines and claims have ensued and have been dropped, By the same
token$ the Carrier has, upon protest, receded from extreme exercises of the
power of assignment. Thus$ the practice evidences mutual give-and-take rather
than the rigid application of the Agreement which marks the limits of the function
of this Board,
A W A R D
Claim denied,
/s/ Hubert Wyckoff
Chairman
I dissent.
Is/
T, P< Deaton /s/
;tp-l
H, bdright
Carrier Member oye Member
(Reserving the right to file a written
dissent)
-4-
DISSENTING OPINION OF Ed1PLOYE M1UriBEit TO AWARD NO.
19
OF
SPECIAL BOARD OF ADJUSTMENT N0,
194
The decision of the majority in this Award No. 19 and Awards
No,
21
and
22
of Special Board of Adjustment No,
194
which follow, are so
clearly and obviously in error and so far exceed the authority of this
Board as to render these awards without value as precedents for the following reasons:
1, Under item "First" in the second paragraph on Page
4
it is stated, "and this presupposes the assignment of work across group
lines"; and in the third paragraph it is stated, "and this presupposes
the additional assignment of other than Group 1 work to that position",
These statements are based upon the first paragraph of Rule
2
(Definition
of Clerks), which provides that "employes who regularly devote not less
than four hours per day" to the performance of certain work "shall be
designated as clerks", completely ignoring the remainder of Rule
2,
which
provides that such definition shall not apply to employes engaged in certain other work concomitant to positions described in paragraphs
2
and
3
of Rule 1 of the Agreement. This rule is strictly a definitive rule which
describes the employes who will be designated as clerks and does not, and
was never intended to, authorize or permit the assignment of work across
group lines, and has never previously been so construed either by practice
or by other awards. In similar cases involved in awards of the Third Division, N. R. A, B. where the rules were similar to those involved in these
cases, no such interpretation was ever made, and claims were sustained,
I refer particularly to Awards
3656, 4543
and others referred to therein,
as well as Awards
2565, 5388, 5413,
and
5895,
Such interpretation of Rule
2
of the Agreement is clearly erroneous,
2,
If correct, this award, as well as Awards
21
and
22
which follow, would have the effect of completely nullifying and eliminating the seniority rights of employes in Groups
2
and/or
3
to any work and
would completely abrogate Rule
4
(Seniority Groups) in the Agreement, which
this Board is not authorized to do; and these awards clearly exceed the
authority of this Board in that respect. In other words, these awards
would have the effect of reserving all work, regardless of its nature, to
Group 1 employes to the complete exclusion of employes in other groups.
3.
In paragraph "Thirds? at the bottom of page
4
it is stated,
"There is evidence of practice before us dating back to
1924,
but it will
not support the conclusion urged by the Organization which is along the
lines of the above-quoted interpretation."
In the submissions and other handling of this case no evidence
was ever produced to indicate that there had ever been a practice authorizing
or permitting the Carrier to unilaterally cross group lines in the assignment of work particularly where, as here, there were positions and employes
available in each group at the various points on the Carrier or sufficient
work to justify full time positions in the various groups. The only evidence
produced showing the crossing of group lines was at points where there was
not sufficient work of a particular group at the particular point to justify
a position in that particular group and there were no employes available in
-2- EMPLOYE P:..MrIBER'S DISSENT TO
AWARD N0. 19
that group to perform the work, Never before in instances such as here
where there were five Group 2 Janitor positions has it been permissible,
authorized or condoned, to assign the work of Group
2
employes to Group 1
employes. The only instances shown as a practice have been at points where
there were established Group 1 positions and insufficient work in Group 2
and/or Group
3
to justify a position in Group 2 and/or Group
3.
Also, in item "Third" attention is called to there having
been a mutually agreed-upon interpretation in the cases involved in Awards
6021
and
1306,
but we do not find where there was ever any such mutually
agreed-upon interpretation in the cases involved in Awards
2585, 3656, 4543,
5388, 5413, 5895,
which were also sustaining awards based upon rules
similar to those involved in this dispute. Neither was there any such mutually
agreed-upon interpretation in the case involved in Award
1459,
which was held
to be an almost identical case to that of Award
1306;
and the reliance upon the
mutually agreed-upon interpretation in Awards
6021
and
1306,
to the exclusion
of the preponderance of awards where there was no such agreed-upon interpretation,
further indicates the error of this award and Awards
21
and 22 which follow.
4.
If correct, the effect of this Award No, 19 and Awards
21 and 22 which follow, would be to "Eliminate existing rules, regulations,
interpretations or practices however established, which restrict or prohibit a Carrier from consolidating positions or extending the jurisdiction
of a position." This is exactly the Carriers' Proposal No, 2, which was
heard by Presidential Emergency Board No.
106
in N,M,B, Case
A-4336;
and
in its report and recommendation on May
15, 1954,
the Emergency Board
recommended against the Carriers' above proposal in the following language:
"The Carriers describe the purpose and intent of this
proposal to be to secure relief from any rules in the non-operating agreements or interpretations thereof by the National Railroad Adjustment Board or otherwise which have resulted in practices
that restrict the Carriers from consolidating positions or extending the
jurisdiction of positions even though no craft or seniority district
lines are involved, whenever they deem it advisable to do so;
and to authorize Carriers to make consolidations wihin a craft or class
of employees and to extend the jurisdiction of positions only where
the work involved is all in a single seniority district.
'The Carriers go on to say this proposal is not to be
construed as seeking a rule to authorize the consolidation
of positions involving more than one craft or class of employees,
or to extend the jurisdiction of a position to absorb work from
two or more seniority districts even though in the same craft.
They say, as a basis for desiring the change, that while there
are few specific rules in the agreements limiting the rights
of Carriers to consolidate assignments or extend the jurisdiction of positions, that the divisions of the Adjustment Board
having jurisdiction thereof have sustained Organizations' contentions that after an assignment or position is once established,
and work assigned thereto, the position can not be consolidated
with another position nor its jurisdiction extended to include
work of another assignment.
EL,ZPLOYE MEMBERS DISSENT
-3-
TO AWARD N0. 19
11We think the present rules, and the interpretation
thereof by the National Railroad Adjustment Board, provide a
reasonable basis for consolidation of positions along class or
craft lines, having due regard for the seniority rights of the
employees involved, and that the staggering of the work week
of these employees, as permitted by the forty-hour week agree-- -
ment, gives Carriers ample opportunity to have the work of any
class or craft performed on any day of the week by regularly
assigned employees,
"The proposal would give Carriers the right to unilaterally cross group seniority rosters and disregard point seniority when consolidating positions and when extending the jurisdiction thereof, This would, to a certain extent, have the effect
of permitting Carriers to destroy the seniority of employees
affected thereby, We think the seniority rights of such employees should be protected. That can best be done by requiring, as
is now necessary, a negotiation thereof by the parties involved
when an individual Carrier desires to make such change, Certainly
such employees' interests would not'always be protected if Carriers
were granted the absolute authority they here request."
This recommendation was followed and the proposal denied.
In other words, by this Award and others referred to, this
Board has assumed the authority to place into effect the above-quoted Carriers'
Proposal No. 2, without proper negotiations as required by the Railway Labor
Act, which it is not authorized to do. Such proposal was the subject of
negotiations, and the Carriers' request was denied; and the only manner in
which the Carrier can establish such proposal is by proper negotiations and not
through Boards of this nature,
Further$ had the Carrier had the authority which this award preseumes
to confer upon it, there would have been no reason or necessity for the Carrier
to have made its Proposal
Noe
2.
5.
These Awards cannot be accepted as controlling or as precedents,
Lsl
F. He right
Employe Member