NATIONAL RAILROAD ADJUSTMENT BOARD CHICAGO, ILLINOIS AWARDS 851 TO 925 INTERPRETATION (Serial No. 21) VOLUME VII SUBURBAN PRINTERS & PUBLISHERS, INC. 415 Docket No. TE-833 NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION PARTIES TO DISPUTE: THE ORDER OF RAILROAD TELEGRAPHERS PERE MARQUETTE RAILWAY COMPANY STATEMENT OF CLAIM: "Claim of the General Committee of The Order of Railroad Telegraphers on the Pere Marquette Railway Company that; the position of agent-operator at Beaverton, Michigan, was arbitrarily reclassified as a non-telegraph agency on February 16, 1932, and the rate reduced from 60¢ per hour to 50¢ per hour without negotiations or agreement and later increased to 52¢ per hour by agreement but contingent upon the position being made a non-telegraph agency in fact, and, that; after the non-telegraph agency rate 52¢ had been agreed upon for the position, communication service was not discontinued, and because of which the scheduled rate of 60¢, per hour plus the 5¢ per hour increase established on August 1, 1937, shall be restored and F. D. Barbaree the regularly assigned incumbent and any others who worked this position since date of reclassification to non-telegraph agent be retroactively reimbursed the difference between the rate established for the position if made non-telegraph agent in fact and the schedule agent-operator rate." COMMITTEE'S STATEMENT OF FACTS: "A contract of agreement bearing date May 16, 1927, as to rules and rates of pay is in effect between the parties to this dispute. The position of agent-operator, Beaverton, Michigan, is listed in the wage scale with a rate of 60¢ per hour applying thereto. "On February 16, 1932, the management without negotiations, notice or agreement reclassified the scheduled agent-operator position Beaverton, Michigan, to non-telegraph agency and established a rate of 50¢ per hour in lieu of the 60¢ per hour rate listed in the wage scale of the schedule agree ment.. "The committee protested this unilateral action of the carrier as to reclassification and reduction in the rate of pay. Negotiations followed and on July 23, 1932 a rate of 52¢ per hour was agreed upon with the understanding the agent-operator position would be made a non-telegraph agency in fact, and that thereafter communication service would be discontinued. "The incumbent of the non-telegraph agency since the change in classification and rate of pay was made effective is required to transmit and receive by telephone, messages and reports of record in practically the same manner and to the same extent as was done prior to the change in classification and rate of pay, notwithstanding the fact that non-telegraph agents when classified as such must not be required or permitted to by either telegraph or telephone transmit or receive messages and/or reports of record. POSITION OF EMPLOYES: "The Telegraphers' Agreement effective May 16, 1927 is still in effect and constitutes an agreement between the parties governing working conditions and also established the rates of pay of all positions included in the agreement, which also includes the position of agent-operator at Beaverton, Michigan. The rate of pay thus fixed through negotiations and agreement between the parties and incorporated in the agreement was 60¢ per hour. "On February 16, 1932, the management without negotiations or agreement with the committee, arbitrarily reclassified this position as a nontelegraph agency and reduced the rate of pay to 50¢ per hour. "At the time the carrier made this change in classification and rate the General Chairman nor the committee was notified by the carrier that such a change was to be made. This information was secured later from other sources. However, as soon as this arbitrary action of the carrier became known a protest was registered and the committee's objections were presented to the management. As a result of such conferences as were held upon the subject an agreement was reached as to the rate of pay of a number of agent-telegraph positions which had been reclassified and the rates of pay reduced, including Beaverton. A Memorandum of Agreement, dated July 23, 1932, was entered into. And the rates of pay of a number of agentoperator positions which had been reclassified in like manner and the rates reduced were adjusted and in some instances slightly increased. The position at Beaverton was among those treated at that time and the rate increased from 50¢ per hour arbitrarily fixed by the carrier for this reclassified position was increased to 52¢ per hour. We are submitting this Memorandum of Agreement as Employes' Exhibit A. "At the time the carrier arbitrarily reclassified the positions included in the Memorandum of Agreement (See Employes' Exhibit A) in the year 1932, the National Railroad Adjustment Board was not in existence, nor was there a System Adjustment Board on the Pere Marquette Railway between The Order of Railroad Telegraphers and the carrier. A System Adjustment Board could not be agreed upon for the reason the Carrier declined to agree to the handling of discipline cases. This left the employes with no tribunal to which cases could be submitted for adjudication. Under these conditions the Memorandum of Agreement was signed. "It was understood, however, that under these reclassifications of agentoperator positions to non-telegraph agencies at the reduced rate, the incumbents of these non-telegraph agencies would not be required or permitted to transmit or receive messages or reports of record by telegraph or telephone. This is also unquestionably implied by the very title 'Non-telegraph agency,' meaning an agent not required to telegraph. The terms telegraph and telephone are synonymous, and so interpreted by tribunals vested with authority to issue orders, decisions, rulings, and interpretations thereon. We cite Interpretation No. 4 to Supplement No. 13 to General Order No. 27, rendered by the United States Railroad Administration. The answer to Question 5-(j) was: 'Decision.-Yes; where the position requires a knowledge of the duties of a telegrapher or telephone operator (synonymous terms) etc.' Whether messages and reports of record are transmitted by telegraph or telephone makes no difference for the reason the United States Railroad Administration and the United States Railroad Labor Board declared the telegraph and telephone synonymous terms insofar as communication service is concerned. In either event they are used as a transmission and reception agency; therefore a telegraph operator and telephone operator are one and the same thing under the application of the rules in the schedule agreement, "As previously stated the committee under the terms of the Memorandum of Agreement dated July 23, 1932 understood and expected that the position at Beaverton, which was included therein, reclassified as non-telegraph agency, and a non-telegraph agency rate applied, would be made a nontelegraph agency in fact. However, the management did not keep faith with that agreement. Before this reclassification and reduced rate was put into effect the agent-operator who had a 60¢ per hour rate was transmitting and receiving messages and reports of record by telephone. After this position was reclassified as a non-telegraph agency this communication service should have been discontinued but it was not discontinued, and again the management did not notify the committee that the Memorandum of Agreement was not being complied with. Some time elapsed before the General Chairman learned that the non-telegraph agent was required to transmit and receive messages and reports of record by telephone. He eventually found it out from other sources whereupon a protest was made, the carrier was asked to discontinue the practice but declined to do so. We maintain that inasmuch as the carrier did not comply with the Memorandum of Agreement account not discontinuing the transmission and reception of messages and reports of record, that the position at Beaverton was not made a nontelegraph agency in fact, and since that agreement was violated the schedule rate 60¢ per hour should have been continued and that the incumbent of this job should have continued to receive the 60¢ per hour scheduled rate during this entire time this communication work was required by the management, which incidentally covers all the time, because at no time has it been entirely discontinued, therefore, the 60 per hour rate was legally in effect ever since it was arbitrarily reduced by the carrier. On August 1, 1937, all rates were increased 5¢ per hour by the National Wage Increase Agreement. Since that date the rate should have been 65¢ per hour. "During the handling of this matter for the re-establishment of the schedule rate the management gave as its reason for not doing so that the nontelegraph agent was doing very little of this communication work, and the volume done was handled over the commercial telephone. We do not agree that the volume is small but even though it were, which we do not concede, it would make no difference. We contend so long as it is being done Beaverton is not a non-telegraph agency in fact, and since it was not so made the agent is entitled to the schedule rate until such time as it is made a nontelegraph agency in fact. The management entered into an agreement which provided that Beaverton was to be made a non-telegraph agency. That agreement should have been complied with, but since it was not complied with the incumbent of the job should be properly compensated and retroactively reimbursed the difference between the non-telegraph agency rate agreed upon and the schedule rate. "With respect to the carrier's claim that messages and reports of record are handled over the commercial telephone instead of over company owned telephone lines, we maintain this has no bearing whatever on this case. This phase has been handled by the National Railroad Adjustment Board, Third Division. See Docket TE-175, Award No. 251, The Order of Railroad Telegraphers vs. Missouri Pacific Railroad Company. In the case hereinabove referred to at Van Buren, Arkansas, the carrier removed the company owned telegraph and telephone lines but installed a commercial telephone for the use of levermen in the tower. In the Van Buren case cited Lloyd K. Garrison, Referee, in his findings said: 'After the removal of the railroad telegraph and telephone lines and the installation of the commercial telephone, the employes continued to perform the same service as before except that they were not required to handle (save in one exceptional instance noted in the record) train orders or clearances. Etc.' "You will therefore see that in the case to which Award 251 applied, communication work was being handled over a commercial telephone. That carrier used this argument as justifying its action in reducing the rate just as this carrier did when the committee handled this case with it. However, in the Missouri Pacific case cited, the Referee was not influenced by this line of argument presented by the carrier. As proof of this statement we cite the Referee's Award: 'Claim Sustained.' "The carrier also contends that_the_handling of train orders were discontinued. We desire to point out that Beaverton is located at the terminus of a branch line and train orders never were handled there except on rare |