THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: This dispute is between the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes as the representative of the class or craft of employes in which the Claimant in this case held a position and the Pennsylvania Railroad Company-hereinafter referred to as the Brotherhood and the Carrier, respectively.
There is in effect a Rules Agreement, effective May 1, 1942, except as amended, covering Clerical, Other Office, Station and Storehouse Employes between the Carrier and this Brotherhood which the Carrier has filed with the National Mediation Board in accordance with Section 5, Third (e), of the Railway Labor Act, and also with the National Railroad Adjustment Board. This Rules Agreement will be considered a part of this Statement of Facts. Various Rules thereof may be referred to herein from time to time without quoting in full.
See also Third Division Awards 6241, 6217, 6216, 6212, 6095, 6019, 6016, 5638, 5620, 5579, 5558, 5240, 5195, 5117, 4815, 3587 and 3467.
The Carrier submits, therefore, that even assuming a violation of the applicable Agreement in the instant case, which the Carrier denies, the Claimant would only be entitled to the compensation claimed at the straight time rate of pay.
It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required by the Railway Labor Act to give effect to the said Agreement and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, First Subsection (i), confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreement between the parties to it. To grant the claim of the Employes in this case would require the Board to disregard the Agreement between the parties thereto and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take such action.
The Carrier has shown that the practice of M. of E. Department employes obtaining material from the Storeroom at times when the Claimant is not on duty represents no violation whatsoever of the applicable Rules Agreement and that the Employes have produced no valid evidence to the contrary.
Therefore, the Carrier respectfully submits that your Honorable Board should deny the claim of the Employes in this matter.
The Carrier demands strict proof by competent evidence of all facts relied upon by the Employes, with the right to test the same by cross-examination, the right to produce competent evidence in its own behalf at a proper trial of this matter and the establishment of a record of all of the same.
OPINION OF BOARD: The Carrier asserts that this Board should decline to consider this matter since the "Company has not received due and proper notice of the claim . . . A chronological summary of the relevant facts shows: 10749-15 404
February 20, 1956. Claim filed by BRC's Division Chairman at Toledo on behalf of Store Attendant H. 0. Lessentin on the basis that employes not covered by the Clerical Rules Agreement were permitted to obtain material from the Storehouse at times when the Claimant was not on duty. This claim was denied.
Subsequently, BBC's Division Chairman submitted a written claim to Carrier's Lake Region Superintendent of Personnel. This claim later formed the basis of a Stipulation.
June 26, 1956. In a Stipulation entered into by Superintendent of Personnel P. N. Mansfield and Division Chairman L. E. Bowman, the "Subject" of the dispute was set forth as follows:
The Stipulation contained a "Joint Statement of Agreed Upon Facts," including (1) Claimant Lessentin was first trick Store Attendant at Toledo Engine house with Saturday and Sunday rest days; (2) On Sunday no assigned employe performed Store Attendant duties; (3) On Sunday M. of E. Department employes obtained needed materials from the store room; (4) The claim was presented because no Store Attendant was "on duty when bI. of E. Department employes enter the store room and obtain needed material."
The "Position of Employes", as expressed in the Stipulation, was essentially this:
The "Position of Company", as expressed in the Stipulation included these contentions:
Subsequently, the Brotherhood's claim was denied by Carrier's Superintendent of Personnel.
August 14, 1956. At a system conference, final dispute step on the property, BRC's General Chairman presented the claim to Carrier's ManagerLabor Relations, contending that the Scope Rule had been violated when M. of E. employes obtained materials from the store room on Sundays when Lessentin was not on duty.
August 31, 1956. Manager of Labor Relations C. E. Alexander, in a letter to General Chairman S. V. W. Loehr, denied the claim which, as he understood it, was based "on an alleged violation of the Scope Rule because Mechanics enter the Storehouse on Sunday, when Claimant is not on duty, and procure material for their own use." Alexander maintained that when a Mechanic procured his own material, in the absence of Claimant Lessentin, he was not violating the Clerk's Scope Rule since this task did not constitute "work which belongs exclusively to Group 2 employes." In support of this position the Manager of Labor Relations noted:
August 26, 1957. The Brotherhood notified this Board and the Carrier of its intention to file an ex parte submission covering the following claim: 10749-17 406
September 26, 1957. The Brotherhood submitted the claim set forth immediately above. It is this claim which is presently before us.
Among the allegations in the BRC's Ex Parte Brief, the following are worthy of note:
Was the Brotherhood's September 26, 1957 claim a new one? Had it been considered on the property?
Comparing it with the June 26, 1956 claim (as set forth in the mutually agreed-on Stipulation) it is clear that the relief requested is the same: punitive pay for Store Attendant Lessentin for all Sundays commencing February 19, 1956. (While the 1957 claim failed to request retroactivity, we do not consider this an important discrepancy.)
But, when we compare the two Brotherhood claims with respect to substantive matters, significant differences appear. Discussions on the property centered about the Brotherhood's charge that it was improper for M. of E. employes to obtain material from the Enginehouse Store Room. The basis for this charge was that Store Attendant Lessentin was not assigned Saturdays or Sundays, thus leaving duties of his position to be performed by someone else. The Brotherhood's principal contention was this: since under its Scope Rule (as well as Rule 5-E-1) a Store Attendant should have been assigned, managament had violated the Agreement by permitting M. of E. employes to do the specified work. 10749-18 :407
The Carrier defended its position by pointing out that no Store Attendant had been assigned to Sunday or Saturday work at the Enginehouse for many years, and therefore the practice of permitting Mechanics to obtain materials on these days was accepted and should be regarded as evidence of the fact that this task did not accrue exclusively to clerks.
In sum, all discussions on the property, up to and including the final denial, (insofar as the record reveals) were concerned with (1) Lessentin, (2) The Enginehouse Store Room, (3) The propriety of permitting Mechanics to obtain materials when Lessentin was off duty.
In its submission to this Board, however, the Brotherhood added a completely new dimension. It charged that Management had violated the Scope Rule and Rule 5-E-1 by assigning duties performed by a Relief Store Attendant (J. Guerin) to M. of E. employes. To justify this claim it offered information cerning work performed not only by Lessentin, but by Store Attendants Wandtke and Pairs, as well as Relief Store Attendant Guerin. It also proffered information regarding Store Attendant work at the Car Shop and the Oil House, in addition to the Enginehouse.
The Carrier was not presented with these allegations prior to September 1957; it did not respond to them on the course of proceedings on the property. Presumably, therefore, it had no real opportunity to fully investigate the claims against it or evaluate these claims in light of known facts or circumstances. More importantly, it had no opportunity to adjust or settle the dispute on the property (had it so desired) or, for that matter, to convince the Brotherhood its charge was without merit and should be withdrawn.
Also illustrative of the fact that significant new allegations were presented in support of the 1957 claim is this: the crucial part of Petitioner's 1957 claim concerns "duties formerly performed by Relief Store Attendant" Guerin. General statements appear in Petitioner's Ex Parte Submission concerning Guerin's relief work on Saturdays and Sundays. These are denied, also in general terms, by the Carrier in its submission. Not until its SurRebuttal Brief (submitted April 2, 1958) does Petitioner specifically affirm that "Guerin spent the greater portion of his tour of duty in the Storeroom on Sundays, where he dispensed materials and supplies to M. of E. employes and others".
In its own Rebuttal Brief (dated April 11, 1958) the Carrier reiterates its general statement that for fifteen years no Store Attendant was on duty Sundays at the Enginehouse Storeroom. But it also specifically denies that Guerin could have covered this location while on duty at the Oil House (his pre-1956 Sunday relief assignment), situated some 300 feet away.
Had this direct conflict arisen on the property, there might well have been a real attempt made to resolve it through interviewing those persons directly concerned. But the issue never really appeared until after the case left the property. We are thus faced with opposing assertions and no way to resolve them.
We conclude, then, that this claim must be dismissed since (1) it departs, to a significant degree, from the claim submitted and processed on the property and (2) the Carrier was deprived of its reasonable right to investigate and adjust the claim which is the subject of the case at hand. 10749-19 408