NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

David DoInick, Referee

(a) The St. Louis-San Francisco Railway Company (hereinafter "the Carrier") violated the effective Agreement between the parties. Article 1 thereof in particular, when on June 24, 1969, it required and/or permitted other than those covered thereby, to perform -work covered by said Agreement.

(b) Carrier shall now compensate Train Dispatcher F. DeBerry one day's compensation at time and.one-half the daily rate applicable to Assistant Chief Dispatcher .for said violation on the res.t.day of Claimant.

"ARTICLE 1

(a) SCOPE

This agreement shall govern the hours of service and working conditions of train dispatchers. The term `train dispatcher' as hereinafter use3, shall include night chief, assistant chief, trick, relief and extra train dispatchers. It is agr&ad that one chief dispatcher in each dispatching office shall be excepted from the scope and provisions of this agreement.

Note (1; : Positions of elcepted chi%z~i disp ateber will be filled by employes holding seniority under this agreement.

(b) DEFINITIONS:

1. Chief, night chief and assistant chief dispatcher positions:

These classes shall include positions in which the duties of incumbents are to be responsible for the movement of trains on a division or other assigned temritory, involving the supervisibn of train dispatchers and other similar amployes.; to supervise the handling of trains and the distribution of power and equipment incident thereto; and to perform related work.

2. Trick train dispatchers:

This class includes positions in which the duties of the incumbents are to be primarily responsible for the movement of trains by train orders, or otherwise; to supervise forces employed in handling train orders; to koep necessary records incident thereto; and to perform related work.

(c) Section (b) of this Article shall not operate to restrict the performance of work as between the respectb.>e classes herein defined, but the duties of these classes may not be performed by other officers or employes for the purpose of avoiding the employment of additional train dispatchers."

The instant dispute had its inception when, on dune 24, 1969 Mr. Bob Rust, an employe not within the Scope of the Agreement, instructed Clinton, Oklahoma to distribute empty .covered hopper cars on hand at Clinton to Cordell, Oklahoma. Said instructions were complied with by force at Clinton.

Timely claim was filed under the date of August 2, 1969 and the Superintendent Transportation denied the claim by letter dated September 5; 1969 stating in, part:

"The carrier has no record to establish that the instructions were issued as alleged. Furthermore, records do not indicate that any train picked up empties at Clinton, Oklahoma on the date in question. Even if the incident transpired, as alleged, it is not work reserved ex.clusively to train dispatchers by specific agreement rules, history, tradition or practice."

On October 18, 1969 the General Chairman advised the Superintendent Transportation that his decision was not acceptable and that it would be appealed to the Director of Labor Relations.

On the same date General Chairman C. E. Gray addressed an appeal to Director Relations T. P. Deaton and under date of November 18, 1969 the Director of Labor Relations denied the claim and scheduled conference in his office 10:00 A. M., Thursday, December 11, 1969.

Conference was held at the time and place designated wherein the Director of Labor Relations reaffirmed his decision of November 18, 1969 as follows in pertinent part:

"There is no confirmation in the Carrier's records of the alleged incident, and I am unwilling to accept unsubstantiated mid undocumented representations as competent evidence of the alleged viclation.

The various reasons given for the declination of this claim are set forth in the Carrier's letter November 19, 1969, copy attached as Carrier's Exhibit No. 38. The .trainmastex who is alleged to have committed the violations in Claims 37 and 38 is one of the division officers who, as such, has responsible control over the operation of a division, or a terminal, or of a major activity within an operating division, and when acting in the discharge a£ his duties and responsibilities, it is not mandatory that a division trainmaster exercise such responsible control only through employes of the train dispatchers' class, nor do the Rules of the Train Dispatchers' Agreement place such a hindrance or limitation upon him.

OPINION OF BOARD: Employes presented the claim as follows:

The record does not identify Bob Rust, his occupation, his craft, ox his position with the Carrier. Nor does the record show to whom the alleged message was addressed. Since the Carrier has no record of the alleged message, Employes have not established by a preponderance of evidence, that the message was sent ox that the alleged instructions were acted upon. Employes have not met the burden of proof.

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 allegations in Employer submissions are not sufficient to support a consideration and a determination of the merits of the claim.

AWARD

Glaim dismissed.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: E. A. Killeen

Executive Secretary