Award No. 14285
Docket No. CL-15142
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Don Harr, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE PENNSYLVANIA RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-5622) that:
(a) The Carrier violated the Rules Agreement, effective May
1, 1942, except as amended, particularly the Scope Rule, when it
required the second trick Yard Master, West Brownsville Junction,
Pennsylvania, Pittsburgh Region, to perform the assigned duties of
clerical position, Symbol G92, each Sunday and Monday, the rest
days of position G-92.
(b) Clerks C. E. Vesley and G. P. Cindric should be allowed
eight hours' pay a day, for Sunday and Monday, December 10 and
11, 1961, and all subsequent Sundays and Mondays until the violation
is corrected. (Docket 1411)
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 Claimants in this case held positions 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.
Va,tous Rules thereof may be referred to herein from time to time without
quoting in full.
Following discussion, the Superintendent denied the claim by letter dated
May 21, 1962. The Division Chairman then requested preparation of a
Joint Submission, a copy of which is attached as Exhibit "A".
At a meeting on October 16, 1963, .the General Chairman presented a
claim, reading essentially the same as that listed here before the Board,
to the Manager, Labor Relations, the highest officer of the Carrier designated
to handle such disputes .on the property. The Manager, Labor Relations
denied the claim by letter of December 16, 1963, a copy of which is attached
as Exhibit "B".
The claim was re-listed for discussion at a special meeting on April 21,
22, and 23, 1964. By letter dated May 8, 1964, the Manager, Labor Relations reaffiirmed his previous denial.
Therefore, so far as the 'Carrier is able to anticipate the basis for this
claim, the questions to be decided by your Board are whether Yardmaster&
were used at West Brownsville Junction to perform work on Sundays and
Mondays in violation of the Clerical Scope Rule and whether .the, Claimants
are entitled to the compensation claimed.
(Exhibits not reproduced.)
OPINION OF BOARD: Claimant C. E. Vesley held regular assignment
as Clerk-Relief, Relief No. 7, under the Assistant Train Master at Shire
Oaks from January 28, 1961 to December 12, 1961. After December 12,
1961, the Claimant held position as Clerk-Extra, Symbol %Y-5, under the
Assistant Train Master at Shire Oaks.
Claimant G. P. Cindric held position as Clerk-Extra, Symbol %Y-3, under
the Assistant Train Master at Shire Oaks.
Sunday and Monday are the rest days of the second trick yard clerk at
West Brownsville Yard Office. There is no relief position assigned to relieve the second trick yard clerk at West Brownsville Yard Office on Sunday
and Monday. On Sundays and Mondays there are no regularly assigned
clerks on duty on the second trick at West Brownsville Junction Yard Office.
A Yard Master is assigned at West Brownsville Junction on second trick,.
Sunday and Monday.
The Employes contend that the Agreement was violated when Carrier
allowed the second trick yard master to perform work on Sundays and Mondays that was done Monday through Friday by Clerks.
Carrier asserts that the present dispute is not properly before the Board
and further alleges the claim was not presented on the property. There
are variances in the form of the claim but we do not feel these variances are
fatal. The Carrier can recognize the existence of the claim now before the
Board.
Award 3256 (Carter) states:
"The Carrier urges that the claim originally made is not .the
same claim that is now before this Board. It is a fact established by
the record that variances in the form of the claim occurred from
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time to time until .the claim reached this Board. In this respect, it
was not intended by the Railway Labor Act that its administration
should become super-technical and that the disposition of claims
should become involved in intricate procedures having the effect of
delaying rather than expediting the settlement of disputes. The subject matter of the claim,-the claimed violation of the Agreement,
has been the same throughout its handling. The fact that the
reparations asked for because of the alleged violation may have been
amended from time to time, does not result in a change in the
identity, of the subject of the claim. The relief demanded is ordinarily treated as no part of the claim and consequently may be
amended from time to time without bringing about a variance that
would deprive this Board of authority to hear and determine it.
No prejudice to the Carrier appears to have resulted in the present
case and the claim of variance is without merit."
See also 6656 (Wyckoff) 109118 (Boyd) and 10921 (Boyd).
It is .important that this Board not become "super-technical" and that
we attempt to avoid a multiplicity of claims. We will dispose of this dispute
on the issues.
The issue here is whether Carrier can assign work to a yard master, on
the clerical employes rest days, when clerical employes perform this work
the other five days of the week.
In Award 12137 (Kane) we held:
"The Scope Rule does not describe the work reserved to the
class of employes covered by it. Thus it is incumbent upon the
Claimant to establish that the work so claimed has traditionally and
customarily been performed on the property by employes of the class
or craft to which he belongs. Under the circumstances here the
Claimants had performed the work from Monday to Friday inclusive
for some time and it must be presumed that they did so under the
provisions of the Scope Rule . . . . .
x ~ * s
"We are further of the opinion that if the Scope Rule and
Rule 4-A-1 (i) of the Clerks Agreement protected the positions
five days per week and on the sixth and seventh days no significant
circumstances existed other than convenience it appears that the
assignment under the rules cited belonged to the Claimants."
Award 12137 involves the same parties as the instant case.
We believe that the record clearly indicates that the work involved was
done Tuesday through Saturday by clerical employes. We concur in the
findings of Award 12137, we will sustain the claim.
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;
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That the Carrier and the Employes involved in this dispute are respeetively 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
That the Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSIDMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 31st day of March 1966.
Keenan Printing Go., Chicago, III. Printed in U. S. A.
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