NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-16892
William M. Edgett, Referee
(Brotherhood of Railway and Steamship Clerks,
(Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Erie Lackawanna Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6123)
that:
1. Carrier violated and continues to violate the Clerks' Agreement
at Niagara Falls, N. Y., when it requires and permits Operator-Clerks who are
not covered by the scope of the Clerks' Agreement, to perform clerical duties
at Niagara Falls, N. Y., which are covered by the scope rule and other rules
of the Clerks' Agreement and properly belonging to clerical forces covered by
said agreement.
2. Carrier shall now be required to compensate C. A. Vassuer, Yard
Clerk-Typist, Niagara Falls, N. Y. and/or his successors retroactive sixty (60)
days from date of this claim (July 23, 1964), an average of five (5) hours per
week at time and one-half his regular rate of pay. Claim to continue for subsequent days until such
the duties of maintaining demurrage records are returned to clerical forces
at Niagara Falls, N. Y. who are covered by the Clerks' Agreement. (Claim 1557)
OPINION OF BOARD: The Organization alleges that Carrier has violated its
Agreement by assigning Operator-Clerks, not covered by the
Agreement, to maintain demurrage records and accounts at Niagara Falls, N. Y.
Numerous awards of this Board hold that under a general scope rule
the claimant has the burden of proving that the work in question has been
performed exclusively by employees of the class, on a system-wide basis by
practice, custom and tradition. To avoid the effect of this strong decisional
trend the organization has asserted that the Rule here removes the necessity
of such a showing. The Rule has been given an interpretation by this Board
in Award No. 16832. There the Board said:
"We find the Scope Rule of the Agreement to be of
the general type in that it does not define or
delineate work. We have consistently held that
with scope rules of this type it is necessary for
petitioners to show an exclusive reservation of
the work through custom, practice and tradition.
We have further held that such proof must be on a
system-Wide basis where the agreement is systemwide such as it is here."
Award Number 19464 Page 2
Docket Number CL-16892
The record does not show the necessary system-wide, exclusive
practice. There is evidence, strongly urged by the organization, that settlement of a claim which wa
claim. The record is in conflict concerning the resolution of that dispute
and the conclusions to be drawn from it. In any event it is clear that it
cannot furnish the proof required by the Board's decisions. Under the most
favorable possible reading of the settlement it does not show the necessary
exclusivity and makes no reference to system-wide practice. Settlement of a
claim which clearly disposes of an issue may provide a precedent which the
Board should follow. Where, as here, the settlement lacks clarity, and facts
which are necessary to make a determination of its import are absent, its
value as precedent is diminished. Here, it is not possible to conclude that
settlement of the 1949 claim mandates a sustaining award.
Since the record does not contain the proof of exclusive systemwide practice, required by the Board'
construction of this Rule, the claim must be denied.
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 Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:~J~.
Executive Secretary
Dated at Chicago, this 30th day of October 1972.