PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS, EXPRESS AND

STATION EMPLOYES




STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6879) that:





EMPLOYES' STATEMENT OF FACTS: 1. By agreement between the parties here involved and pursant to Rule 7 (c) of the Clerks' Agreement, there are two (2) regularly assigned clerical positions in Carrier's Office of Superintendent. Both positions are-









The occupants of the two (2) positions at the time of the instant dispute, were -





2. The instant dispute arose, when beginning Wednesday, March 11, 1970, Mrs. Browan, as work of her regular assignment, was required to take and transcribe a HB&T - MP joint investigation. The investigation commenced at 9:00 A. M. Wednesday, March 11, 1970, and was concluded at 6:48 P. M., Friday,


Jobs under this category cannot be merely filled by using seniority as a strict method and the organization certainly recognized this when Rule 7 was written and the exceptions put forth to provide for competent employes to perform these duties. Under the current agreement and practices on 7-C assignments, when a clerk is called for such a vacancy, they remain on this job until such time as they have completed the assignment or are released due to regular employe again assuming his duties in line with accepted practices on the railroad. Clerk L. C. Chronister pay records would indicate that on these dates in question, he worked an assignment known as 999. This procedure comes about by the simple method of due to IBIJ programming on Payroll records, all clerical assignments have a number and any assignment for payroll records that dogs not carry a given number is programmed 999, which indicates that this is an additional compensation going to souse employee that was not in the numbered of the clerical assignments. Therefore, the indication of 999 comes in, in which the organization assumes extra job in their claim. Clerk Chronistcr worked the 7-C assignment in the Superintendent's office as provided under the agre~ment on March 11, 12, and 13, 1970, and for these three days he was allowed eight hours each day at the punitive rate.


All correspondence in connection with this claim has been properly handled and is listed as Exhibits A, B, C, D, and E.


(Exhibits rot reproduced.)

OPINION OF BOARD: On March 11, 12 and 13 Carrier and the MP were engaged in a joint investigation. The secretary to the Superintendent was assigned to record the investigation for Carrier. Consequently it was necessary to assign another employe to assist in her absence.


The poition of secretary to the superintendent is covered by Rule 7 which reads as follows:




(a) Employes covered by these rules shall be in line for promotion. Promotions, assignments, and displacements under these rules shall be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail, except, however, that seniority shall not apply to the positions named in Paragraph (c) of this rule. (In filling positions listed in Paragraph (c) of this rule, preference shall be given to employes coming under the provisions of this Agreement).








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Carrier selected an available employe who performed the tasks required of him in the Superintendent's office during the three days required to take and transcribe the record of the investigation. The employe assigned to work at overtime in the Superintendent's office was junior to the claimant. Claimant thzrefore alleges a violation of the Agreement. Carrier recognizes that unless the employe assigned to assist in the Superintendent's office may be said to have performed Rule 7(c) duties the claim is valid.


Thus Carrier's principal defense is that since the duties were those of a Rule 7(c) position, Claimant may not lay claim to them. In addition since clearly Claimant was not available on March 11, the first day of the assignment, Carrier alleges that under established practice (on Rule 7(c) assignments) the person originally assigned remains on the assignment.


The clahu hinges, of course, on whether the employe assigned to assist in the Superintendent's office was on a job covered by Rule 7. The Organization asserts that (he incumbent was performing the duties of her position while recording the investigation. This is evidenced, it says, by the description of the duties of the position, which read (in part):




Carrier concedes that taking the record of investigations is a part of the duties of the position of secretary to the Superintendent. It argues however that taking the record of this particular investigation was not a part of her duties because she was, Carrier alleges, substituting for the MP recorder. Even if the Board were disposed to agree with this contention it has a serious flaw. Carrier has asserted that the substitution was necessary and was made, but it failed to offer evidence with probative value to establish the asserted facts. While Claimant has the burden of proving the facts on which his claim rests, Carrier also has the burden of proving the facts offered to defend the Claim. Instead Carrier has relied on assertions. This Board has held that assertions cannot take the place of proof. (See for example Awards Nos. 8065, 8486, 9788, 12685, 16313, among others.) The Board finds that while the Secretary to the Superintendent was engaged in reporting the joint investigation she was engaged in duties that are a part of her job.


Since, as we have found, the position of Secretary to the Superintendent was being occupied by the incumbent the employe assigned to his office on March 11, 12 and 13 was not performing work covered by Rule 7. Therefore the normal seniority rules must be applied to the overtime work.


In view of our decision, only one of Carrier's other defenses to the claim need be considered. It is conceded that Claimant was not available for the assignment on March 11. The record shows that he was available on March 12 and 13. Carrier has alleged a practice of continuing employes "on Rule 7(c) assignment" until the assignment is completed. Since, as we have found, this was not a Rule 7(c) assignment the practice referred to would not apply.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all tire evidence, finds and holds:




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That the Carrier and the Employes involved in this dispute are respeetively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jmindicLion oc r the dispute involved herein; and









Dated at Chicago, Illinois, this 14th day of January 1972.

Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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