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.
On, and prior to, the date of the institution of this claim, Claimant F. A. Peters held a position on the Group 1 Extra List under the jurisdiction of the Master Mechanic, Columbus, Ohio, Buckeye Region. He has a seniority date on the seniority roster of the Buckeye Region in Group 1.
not the Claimant is entitled to eight (8) hours' pay a day as a penalty. However, in the event that, contrary to the facts, it is decided that the Agreement has been violated in this case, the Carrier has shown that the Claimant would only be entitled to actual loss of earnings, if any, or, to say it in another way, to be made whole.
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 Freight Car Repairman performs no clerical work whatsoever; that no provision of the Agreement has been violated in this case; and that the Claimant is not entitled to the compensation which he claims.
Therefore, the Carrier respectfully submits that your Honorable Board should deny the claims of the Employes in this matter.
OPINION OF BOARD: Petitioner here alleges a violation of the Clerks' Agreement by the Carrier when it used an employe not covered by the Agreement and occupying a position of Freight Car Repairman to perform certain clerical work in the Car Shop Office at Columbus, Ohio.
In accordance with the requirements of Section 3, First (j) of the Railway Labor Act, formal notice of the pendency of the dispute was served by the Division on the Transport Workers Union of America, which Organization declined to participate herein. Accordingly, the Board may properly proceed to a consideration of the merits of the claim.
The Agreement in evidence contains a Scope Rule which, in pertinent part, says:
Rule 3-C-2 is entitled "Assignment of Work" and provides a procedure to be followed in assigning the work of abolished positions. It is not applicable here.
Where, as here, the Scope Rule of an Agreement is general in character and does not purport to describe or define the particular work in dispute, the party asserting a claim thereto has the burden of showing by a preponderance of the evidence of record, that traditional custom and practices on the property establish its exclusive right to perform that work. (See Award 8331 involving these same parties).
The duties performed by the Car Repairman in this dispute are described by the Carrier as follows:
Petitioner asserts that the primary duty of a Car Repairman is, as the title indicates, to repair cars; that Mr. Goldsberry does not repair cars, but spends 8 hours each day in performing clerical duties usually and customarily carried out by clerical employes covered by the Agreement. It points to the definition of a "Clerk" under Group 1 of the Scope Rule as supporting this contention.
It is true, as Petitioner avers, that the Car Repairman here did perform the described clerical duties during his daily tour of duty and did not repair cars. The record is also clear that beyond mere assertions by Petitioner, there 12462-26 611
is no evidence of probative value showing the particular work had once been performed by Clerks and had then been removed from Agreement coverage to be assigned to the Car Repairman or anyone else. Here, the Petitioner must establish, in the face of Carrier's showing that the duties performed were a necessary incident to the car repair work and Clerks also performed some of that work-typing, distribution and filing-that it was work usually and customarily performed by employes of the clerical craft on this property. Failure to do so is fatal to the success of the claim. (Cf. Award 7031; also see Awards 9639, 9746, 9822 involving these same parties, and directly in point).
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and