NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Preston J. Moore, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
NEW YORK CENTRAL RAILROAD
(EASTERN DISTRICT, BOSTON & ALBANY DIVISION)
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood:
(1) That the Carrier violated the rules of the current Clerks'
Agreement when effective with the close of business March 6, 1958,
it abolished the position of Demurrage Clerk, Adams, Mass., held by
Mrs. M. J. Glazebrook, with assigned hours 8:00 A. M. - 5:00 P. M.,
Mon. through Fri., days of rest Sat. and Sun., rate of pay of $16.807
per day and reassigned the work of the abolished position in part to
the two remaining Clerks and in part to the Agent, an employe not
covered by the scope of the Clerks' Agreement, and
(2) That effective March 7, 1958, the senior qualified clerk (Mr.
R. Boynton) shall be additionally compensated 4 hrs. pay at the pro
rata rate of $16.807 per day (plus subsequent adjustments of a general character) and this claim to continue in effect until such time as
the rules of the agreement have been complied with, and that
(3) Carrier shall be required to immediately return this work to
the scope of the Clerks' Agreement, and further
(4) That should Mr. Boynton be succeeded, said successor shall
then become claimant under item (2) above.
EMPLOYES' STATEMENT OF FACTS: Under date of March 3, 1958,
Agent H. B. Foley, Adams, Mass., issued notice to Mrs. M. J. Glazebrook that
effective with the close of business, Thursday, March 6, 1958, her position of
Demurrage Clerk was abolished. (See Employes' Exhibit "A" attached.)
Prior to the abolishment of the Demurrage Clerk position, there were 3
clerical positions in effect at Adams, Mass. Freight House, 5 days per week
Mon. through Fri., 8:00 A. M. - 5:00 P. M., Sat. and Sun. as days of rest
held by Mr. R. B. Boynton, Mrs. M. J. Glazebrook and Mr. L. P. Macksey.
1315]
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Carrier requests that if the claim is not dismissed or remanded for lack
of jurisdiction, it be denied in its entirety for lack of merit or agreement sup
port.
All data and arguments contained herein have been presented to the
Clerks' Organization in conference and/or in correspondence.
(Exhibits not reproduced.)
OPINION OF BOARD:
On March 3, 1958, the position of Demurrage
Clerk was abolished. The duties of the position were reassigned to the two
remaining Clerks and the Agent. The Petitioner contends that the portion
of work assigned to the Agent violated the Scope Rule.
"RULE 1-SCOPE
"(a) These rules shall constitute an agreement between the
NEW YORK CENTRAL RAILROAD (Eastern District, Boston &
Albany Division) and its employes as represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express
and Station Employees and shall govern the hours of service, working conditions and rates of pay of all employes engaged in the work
of the craft or class of clerical, office, station and storehouse employes.
"For the purpose of this agreement, the craft or class of clerical, office, station and storehouse employes is divided into the following groups:
t W t , c
"Positions or work within the scope of this agreement belong
to the employes covered thereby and shall not be removed therefrom
without negotiation and agreement between the parties signatory
thereto."
It is well settled by this Board that, when the Scope Rule is defined in
positions and not work, its coverage is determined by custom and practice.
Therefore, the burden of proof of establishing the past practice is upon the
Petitioner. There is insufficient evidence in the record to establish the fact that
the work performed by the Agent belonged to the Organization by practice
and custom. At the time of the abolishment of the position it was performed
by Clerks, but it appears that it had previously been performed by others.
The Petitioner has failed to offer any proof that by practice and custom
the work belonged to them.
For the foregoing reasons, we find the Agreement was not violated.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
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331
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 11th day of June 1963.
LABOR MEMBER'S DISSENT TO AWARD 11495
(Docket
CL-11071)
The "Opinion of Board" reads in part as follows:
"It is well settled by this Board that, when the Scope Rule is defined in positions and not work, its coverage is determined by custom
and practice. Therefore the burden of proof of establishing the past
practice is upon the Petitioner. There is insufficient evidence in the
record to establish the fact that the work performed by the Agent
belonged to the Organization by practice and custom. At the time of
the abolishment of the position it was performed by Clerks, but it
appears that it had previously been performed by others.
The Petitioner has failed to offer any proof that by practice and
custom the work belonged to them."
In the oral panel discussion the Carrier Member contended that the work
in question was keeping demurrage records, and that the Employes had failed
to prove that Clerks performed this work at Adams, Massachusetts.
The Referee's particular attention was directed to conclusive evidence in
Employes' Exhibit "A" appearing on record page 9, which reads as follows:
"NEW YORK CENTRAL SYSTEM
ADAMS, MASS.
MARCH 3, 1958
MRS. M. J. GLAZEBROOK
147 BELLEVUE AVENUE
ADAMS, MASS.
THIS TO NOTIFY YOU THAT THE POSITION OF "DEMURRAGE CLERK" AT ADAMS, MASS. IS ABOLISHED EFFECTIVE THURSDAY, MARCH 6, 1958, AT CLOSE OF BUSINESS.
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UNDER RULE 42 OF YOUR AGREEMENT (RETURNING
FROM LEAVE OF ABSENCE) YOU HAVE SEVEN CALENDAR
DAYS IN WHICH TO EXERCISE SENIORITY RIGHTS.
H. B. FOLEY, AGENT
CC MR. LTG
MR. WMP"
The preponderating duties of a position have always been the basis for
its title. For example, Yard Clerks spend the majority of time performing
duties pertaining to yard work and records, a Rate Clerk's duties mainly consist of rate matters, and the duties of a Cashier mainly consist of maintaining
financial records, etc. Thus, the title in the instant dispute has significance and,
as heretofore pointed out, during oral panel discussion the Carrier Member
contended that the work involved was that of keeping demurrage records.
The Referee failed to acknowledge all the evidence of record in support
of the Employes' contention that the demurrage work at Adams, Massachusetts has always been performed by employes within the Scope of the Clerks'
Agreement.
It is quite evident the Referee erred; and for the above reasons, I dissent.
C. E. %ief
Labor Member
June 28,1963