NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Arthur w. Devine, Referee

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS, EXPRESS AND

STATION EMPLOYES

MISSOURI PACIFIC RAILROAD COMPANY

1. The Carrier violated and continues to violate the Clerks' Agreement when beginning on or about May 10, 1968, it removed the work of checking all trailers parked on the grounds at Settegast, maintaining seal records and checking piggyback ramps during the day, from the employes covered by the Clerks' Agreement at Houston, Texas, and assigned it to persons not covered thereby.

2. That the Carrier be required to restore the work that was formerly performed by employes at Houston, Texas, under the Scope of the Clerks' Agreement from which it was removed.

3. The Carrier sb.all be required to compensate G, S. McKay for eight (8) hours at pro rata rate each work day Monday through Friday from May 10, 1968 through July 1, 1968, and J. `V. Mercado for eight (8) hours each work day Monday through Friday, beginning July 7, 1968 and continuing each day thereafter until violation is corrected.

sometimes made a check which listed trailer numbers on hand. When the latter check no longer served any useful purpose, it was discontinued. The check historically made by the Truck Company employes was a necessary and integral part of their duties and responsibilities.

18. Carrier representatives had given this dispute special attention in an effort to resolve the facts and/or grievances; however, after exhausting all efforts to dispose of the matter the dispute concerning the facts of the matter still existed. The Carrier concluded its handling of the dispute on the property by writing Ceneral Chairman Brown as follows under date of October 2, 1970:

"Please refer to your File G-3386 claim of G. C. McKay for eight (8) hours at the straight time rate 'Monday through Friday, May 10 to July 1, 1968, and claim of J. W. Mercado for eight (8) hours at the straight time rate jjonday ~hrongh Friday starting July 7, 1968, when it is alleged truck company employes checked piggyback ramps and secured seal records on p;ggyback trailers at Houston, Texas. Particular reference is made to the on-ground meeting held at Houston, Texas, Wednesday, September 2:1, :970 in a further effort to. determine the facts it, this matter.

A representative of this office togeth_,r with other CETr13r officers made an on-ground check of this matter at Settegast facility at Houston en Monday, July 20, 1970, r;.dch resulted in the facts set forth in our letter of July 21, 1970, addressed to you. These facts were developed by Carrier officers who hale been completely farnilia r with all phases of the operation art that point over a pericd of many years and we believe oar statements in that respect are entirely co.rect.

In a further effort to reconcile our diffe-i ences with respect to tbn facts in this matter we met with you and other members of your committee on Wednesday, September 23, 1970 to again discuss the matter, at which time we furnished you signed statements of Assistant Terminal Manager D. B. Smith, General Warehouse Foreman J. I.. Moore, Assistant Terminal Manager R. B. Bailey and Assisbunt Terminal Manager B. N. Swarthout.

It is regrettable that we are no closer to agreement concerning the facts than when we started. W e believe we have exhausted our efforts in the matter and there. , ists no basis for changing the docision given you in the first ii :ante -,which denied the claims as presented."

(Exhibits not reproduced.)

OPINION OF BOARD: The basic contention of tire Petitioner is that work reserved to clerical employes at Settoogast Freinht Station, Houston, Texas, has been transferred to and is performed by supervisors and employes of the Missouri Pacific Truck Lines, who are not covered by the Agreement.

The Carrier contends that some of the work complained of is being performed by clerical employes covered by the Agreement, and that some has been eliminated as not necessary to the operation of tire Carrier. It denies, however, that work reserved to clerical employes has been transferred to employes of the Truck Lines not covered by the Agreement. The Carrier also contends that the claim was enlarged upon in appeal on the property and is

thus procedurally defective as to some of the items of work complained of. The record shows extensive handling of the dispute on the property; however, at no time in the handling on the property did the Carrier take any exception as to the manner in which the dispute was progressed. Its objection before the Board comes too late and is rejected.

The docket is voluminous and, as indicated the handling on the property was extensive. However, in the handling on the property the parties were unable to agree on how the work was handled prior to May 10, 1968, the date mentioned in the claim, or how it has been handled since that date. Each party has submitted statements which it contends supports its position, but were unable o2 the property to resolve the conflicts in the statements and evidence. The conflict continues throughout the docket. In fact, the evidence is so conflicting that it defies resolution of the issues presented on the merits. On the record as it exists, we have no alternative but to dismiss the claim. See Awards 17500, 17211, 17197, 16036.

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 be dismissed.

AWARD

Claim dismissed.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: E. A. Killeen

Executive Secretary

LABOR MEMBER'S DISSENT TO AWARD 18806 (CL-19182)

(Referee Devine)

The Majority in Award 18806 has exercised an abdication of its responsibility in dismissing this Claim. Simply put, the Award acknowledges that the Majority is unable to understand the "big case."

In the Award the voluminous "record" and conflict is discussed. The Award recognized that in the handling given the dispute on the property the parties were unable to settle the conflict or agree. This seems to be the basis of the dismissal Award. It is obvious to individuals with only sophomoric

ability that conflict on the property is equal to advocacy of position and failure to settle does not debar - why else would the case be adjudicated?

Fortunately, however, for the Petitioners the Award does not deny the Claim, instead, under questionable license, the Claim is dismissed. Inasmuch as the Claim involves a continuing violation there is nothing to prevent the Petitioner from reinst1tating the Claim, at its normal beginning level, with the purpose in mind of having the matter properly adjudicated - Petitioner's right under the Railway Labor Act and existing rules.

Award 18806 in no way whatsoever addresses itself to the issue presented to tine Board for adjudication. The Majority exercised questionable license in authoring a dismissal Award.

Therefore, I dissent.

/s/ J. C. Fletcher