NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
G. Dan Rambo, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
NORFOLK & WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-4964) that:
(a) The Carrier violated the provisions of the Clerks' Agreement on April 1, 1958 and again on June 1, 1958 when, in the office
of Superintendent Car Service at Roanoke, Virginia, it failed to
classify, rate, bulletin and assign two new positions in accordance
with the Agreement rules; and,
(b) Clerk Donald P. Bishop shall be additionally paid the pro
rata rate of the new position entitled Supervisor of Tabulators and
Collators, and Clerk Noel C. Keen shall be additionally paid the pro
rata rate of the new position entitled Supervisor of Key Punch; both
claims for compensation retroactive sixty days prior to August 28,
1958, and to continue until the positions are bulletined and assigned
to claimants or otherwise filled under the Agreement rules.
EMPLOYES' STATEMENT OF FACTS: 1.
Prior to April 1, 1958,
clerical employes in the Carrier's Office of Superintendent Car Service were
under the direct supervision of a Chief Clerk and an Assistant Chief Clerk,
both positions being under the Clerks' Agreement but "excepted" from some
of the rules thereof as will be hereinafter shown.
2. The Carrier began to install and use IBDI Machines to perform the
clerical work previously done manually and, on April 1, 1958, it assigned
Clerk Herman S. Thomasson to a newly created position called Supervisor
of Tabulators. The position was not bulletined and filled under Agreement
rules. The duties required of Clerk Thomasson are to plan the work, wire
machine plugboards, and supervise the Clerks who operate tabulating, collating and printing machines.
CARRIER'S STATEMENT OF FACTS: In connection with changing
the Carrier's car record work in its Car Record Office at Roanoke, Virginia
from manual to machine operation, the Carrier established a new position of
Supervisor Machne Department, effective April 1, 1958, and a new position
of Supervisor Key Punch Department, effective June 1, 1958.
On April 1 1958, Herman S. Thomasson was appointed to the position
of Supervisor Machine Department, and Thomasson's former position as
Utility Clerk, a position under the Clerks' Agreement, was bulletined and
assigned in accordance with the applicable rules of such Agreement.
On June 1, 1958, William S. Menefee was appointed to the position of
Supervisor Key Punch Department, and Menefee's former position as Stenographer-Clerk, a position under the Clerks' Agreement, was bulletined and
assigned in accordance with the applicable rules of such Agreement.
The duties assigned to the position of Supervisor Machine Department
consist entirely of supervising the work in the Machine Room and the duties
assigned to the position of Supervisor Key Punch Department consist entirely
of supervising the work in the Key Punch Room. No clerical work whatever
is performed by the incumbent of either of these two supervisory positions.
The Employes filed the following claim (See Carrier's Attachment "A")
"1. Carrier violated the terms of the Clerks' Agreement, effective July 1, 1944, when on April 1, 1958 it assigned Utility Clerk
Herman S. Thomasson, who has a seniority date of February 15,
1940, in the Car Service Department of the Norfolk & Western
Railway Company, Roanoke, Va., to a misnomer and created position in that department, classified, (by Carrier) as Supervision of
Tabulators and Collators, rate of pay $500.00 per month.
"2. That Carrier violated the terms of ,the Clerks' Agreement,
effective July 1, 1944 when on June 1, 1958 it assigned StenoClerk William S. Menefee, who has a seniority date of May 1, 1939,
in the Car Service Department of the Norfolk & Western Railway
Company, Roanoke, Va., to a misnomer and created position in said
department, classified, (by Carrier) as Supervisor of Key Punch, rate
of pay $490.00 per month.
"3. That Clerk Donald P. Bishop, seniority date of December
1, 1926, and Clerk Noel C. Keen, seniority date of April 1, 1929,
in the Car Service Dept., now be assigned to above-mentioned created
positions and compensated at the created positions' rates of pay,
additional eight hours per day, retroactive 60 days from date of this
claim and compensation to continue in effect each day until correction is made."
The Carrier declined the claim.
(Exhibits not reproduced.)
OPINION OF BOARD: It is the contention of Carrier that there is a
substantial variance between the claim presented to this Board and the claim
handled on the property.
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As handled on the property, the claim was:
" `Claim of the Local Committee of the Brotherhood, that:
" `l. Carrier violated the terms of the Clerks' Agreement, effective July 1, 1944, when on April 1, 1958 it assigned Utility Clerk
Herman S. Thomasson, who has a seniority date of February 15,
1940, in the Car Service Department of the Norfolk & Western Railway Company, Roanoke, Va., to a misnomer and created position
.in that department, classified, (by carrier) as Supervision of Tabulators and Collators, rate of pay $500.00 per month.
"'2. That Carrier violated the terms of the Clerks' Agreement, effective July 1, 1944 when on June 1, 1958 it assigned
Steno-Clerk William S. Menefee, who has a seniority date of May
1, 1939, in the Car Service Department of the Norfolk & Western
Railway Company, Roanoke, Va., to a misnomer and created position in said department, classified, (by carrier) as Supervisor of
Key Punch, rate of pay $490.00 per month.
"'3. That Clerk Donald P. Bishop, seniority date of December 1, 1926, and Clerk Noel C. Keen, seniority date of April 1, 1929,
in the Car Service Dept., now be assigned to above-mentioned created
positions and compensated at the created positions' rate of pay, additional eight hours per day, retroactive 60 days from date of this
claim and compensation to continue do effect each day until correction is made."'
The claim submitted to this Board in President Harrison's letter of May
10, 1961, read:
"Claim of the System Committee of the Brotherhood that:
"(a) The Carrier violated the provisions of the Clerks' Agreement on April 1, 1958 and again on June 1, 1958 when, in the
office of Superintendent Car Service at Roanoke, Virginia, it failed
to classify, rate, bulletin and assign two new positions in accordance
with the Agreement rules; and,
"(b) Clerk Donald P. Bishop shall be additionally paid the
pro rata rate of the new position
entitled Supervisor
of Tabulators
and Collators, and Clerk Noel C. Keen shall be additionally paid the
pro rata rate of the new position entitled Supervisor of Key Punch,
both claims for compensation retroactive sixty days prior to August
18, 1958, and to continue until the positions are bulletined and assigned to claimants or otherwise filled under the Agreement rules."
It is true as set out in Award 6115 (Messmore) et sequiter that the
relief demanded is ordinarily treated as no part of the claim and may be
amended without bringing about a variance per se, but has the subject matter
of the claim changed? 'This criteria for variance was set out in Award 3256
(Carter) and may be appled here.
The claim dealt with on the property was in essence that the Agreement
was violated by the appointment of employes Thomasson and Menefee to
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created positions; that Bishop and Keen, employes of greater seniority, should
be assigned to the said positions and compensated for the pay lost by the
alleged erroneous appointments.
As presented to this Board, the claimed violation was Carrier's failure
to "classify, rate, bulletin and assign two new positions in accordance with
the Agreement rules; . " It is the opinion of this Board that such represents a material change in the subject matter of the Claim.
This Board has consistently held that where a substantial variance exists
between the claim handled on the property and that presented to the Board,
the Board may not accept jurisdiction and resolve the dispute. See Awards
10078, 10193 (Begley) ; 10420 (Dolnick) ; 10537 (Sheridan); 10749 (Stark) ;
10873 (Hall); 11367 (Dorsey); 14258 (Lynch); 14298 (Rambo).
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;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Claim shall be dismissed.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 4th day of August 1966.
LABOR MEMBER'S DISSENT TO AWARD 14747, DOCKET CL-12754
Award 14747, Docket CIr12754, is in error for the simple reason that
the question posed by the Referee, i.e., "* * * has the subject matter of the
claim changed?", was erroneously answered in the affirmative whereas the
record clearly required a negative answer thereto.
On the property the Carrier was charged with violation of
Rule 1 - Scope
Rule 4 - Seniority
Rule 5 - Promotion, Assignment and Displacement
Rule 8 - Qualifying
Rule 10 - Bulletining New Positions or Vacancies
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Rule 20 -Excepted Positions
Rule 36 - Change in Rates
Rule 40 -EstablishedPositions
Rule 41 -RatingPositions
Rule 42 - Preservation of Rates
Rule 44 (a) -New Positions
Rule 58 - Effective Dates and Changes
and such rules were argued throughout the handling. On February 24, 1959,
Carrier's highest officer stated that (R p. 20)
"Rules 1, 4, 5, 8, 10, 20, 36, 40, 41, 42, 44 and 58, Clerks'
Agreement, are cited in support of the claim."
This dispute was brought about because, as stated by Carrier (R p. 43)
"* * * Carrier determined that two additional supervisory positions would be needed to supervise the performance of the work by
machines. These positions were established and filled by appointment * * *. "
This was done in the face of Section 6 of the parties Agreement which
reads:
"Section 6: Additional excepted positions may be added to
those covered by Sections 4 and 5 of this Supplemental Agreement
only by Agreement in writing between the Management and the General Chairman." (Emphasis supplied)
The Supplemental Agreement "A", a part of the parties "Master Agreement", lists numerous supervisory positions and was arrived at for the purpose of "providing for exceptions from the application of some or all of the
provisions of this Agreement." (Rule 1(.b).)
To hold that the subject matter of .the claim had been changed in the
face of such a record simply indicates an unwillingness ,to face the issues
involved. The parties are required to negotiate on the issues, state their
positions, give adequate reasons in writing, etc., so that the claim may be
matured and the issues in dispute joined. In the statement of claim, upon
submision, the petitioner is to:
"* * * clearly state the particular question upon which an awari
is desired."
and that, precisely, is what was here done.
The claim of variance, when the entire record is so clear as to the issues
should have been dismissed on the basis of Award 7923, Smith, reading:
"On the basis of the record as a whole we cannot agree with
the Respondent that this Claim was not timely handled on the property. Nor can we agree that this claim should be dismissed for the
reason that the form in which it is presented here is substantially
different than that in which it was presented on the property. While
admittedly there is a variance we do not think that such variance is
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fatal to its (claim) consideration. We have held that all that is required of a claim is that it be presented in a manner and form that
will enable a Carrier to identify the Scope thereof and be in a
position to prepare an adequate defense thereto. * " '."
(See also Awards 6115, 6656, 10639, 10918, and others.)
Had that properly been considered and answered then the merits, weighed
against the language of the Agreement, would have had to have been sustained.
1 therefore dissent to this erroneous Award.
/e/ D. E. Watkins
D. E. Watkins, Labor Member 8-1066
Keenan Printing Co., Chicago, 111. Printed in U. S. A.
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