NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVTSION
Frederick R. Blackwell, Referee
PARTIES TO DISPUTE:
Award Number 19517
Docket Number CL-18598
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
(
(Southern Pacific Transportation Company (Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6687)
that:
(a) The Southern Pacific Company violated the current Clerks' Agreement when at Guadalupe. Calif
effective March 13, 1961, and required or permitted employes not covered by the
Clerks' Agreement to perform certain of the duties previously assigned to Position No. 7;
(b) The Southern Pacific Company shall now b,: required to a11nw Clerk
E. E. Estes eight (8) hours compensation at the applicable straight time rate of
Position No. 7, in addition to all other earnings, for March 13, 1961, and continuing until April 20
involved restored under the Scope and operation of the Clerks' Agreement.
uPINION OF BOARD: This is a scope claim arising under an Agreement between the
parties bearing effective date October 1, 1940, reprinted
May 2, 1955, including subsequent revisions.
Employees Union.
Third party notice has been given to the Transportation-Communication
FACTS
Immediately prior to March 13, 1961, the station force at Guadalupe,
California, consisted of the following positions.
No. of days in
week service
Position Assigned Hours performed
No. 1 Agent 8:00 AM-5:00 PM 6
No. 2 1st Telegrapher-Clerk-PMO 8:00 AM-4:00 PM 7
No. 3 2nd Telegrapher-Clerk-PMO 4:00 PM-12:00 MN 7
No. 4 3rd Telegrapher-Clerk-PMO 12:00 MN-8:00 AM 7
Relief Telegrapher
Award Number 19517 Page
Docket `lumber CL-18598
':Io. 6 Cashier 8:00 AM-5:00 PM 5
Nn. 7 Waybill Clerk 1:00 PM-10:00 PM 6
No. 14 Freight Clerk 7:00 AM-4:00 PM 7
No. 22 Ticket Clerk 3:00 PM-11:00 PM 7
Rrlief Clerk"
Employees covered by the Clerks' Agreement filled Positions No.
6, 7, 14, and 22, and the Position of Relief Clerk. Employees covered by the
Telegraphers' Agreement filled Positions No. 1, 2, 3, and 4, and the Position
of Relief Telegrapher. Prior to March 13, 1961, Telegrapher Position No. 3
performed about six hours of wire work and two hours of clerical work; Position No. 4 performed abou
work.
Effective close of work day on March 13, 1961, Clerical Position No.
7 was abolished by Carrier. The position was reestablished on April 20, 1961.
During the period of abolishment of the position, the preponderance
of the work of the abolished position was required to be absorbed by Clerk Position No. 22. The part
Telegraphers Positions No. 2 and 3. Petitioner asserts some of the remainder
also went to the Agent Position No. 1, as evidenced by written statement of
claimant dated January 7, 1964. However, Carrier asserts that all duties of the
abolished position "were absorbed by clerical position No. 22 (Ticket Clerk) and
1st and 2nd trick telegrapher-clerks (Telegrapher Positions No. 2 and 3)".
Claimant, Clerk E. E. Estes, occupied Clerk Position No. 22 prior to
and during the period of abolishment of Clerk Position No. 7, as well as after
its reestablishment on April 20, 1961.
The pertinent Scope Rule reads as follows:
"SCOPE
Rule 1.
(a) These rules shall govern the hours of service and
working conditions of the following employes, subject to the
exceptions noted below:
(1) Clerks--
(a) Clerical Workers
(b) Machine Operators
(2) Other office, station and store employees-such as office boys, messengers, chore boys,
train announcers, gatemen, baggage and parcel
room employes, train and engine crew callers,
Award Number 19517 Page 3
Docket Number CL-18598
"operators of certain office or station appliances and devices, telephone switch board
operators, elevator operators, office, station
and warehouse watchmen and janitors.
(3) Laborers employed in the around station, storehouses and warehouses."
CONTENTIONS OF PARTIES
Petitioner contends the Agreement was violated when a clerical position with eight hours of work
duties parceled out to a surviving clerical position and to telegraphers working
around the clock. Petitioner also asserts that the subject work was "work ordinarily and customarily
clerical forces at that particular point and every other location on the system
.. " and that "To the best of our knowledge, all such work has historically been
performed, system-wide, by employees covered under the scope of the Agreement".
Carrier contends that the performance of clerical duties as alleged by
Petitioner has not and has never been the exclusive right of clerical employees,
either at Guadalupe or at any other point on Carrier's property. Carrier further
asserts that the abolishment of the position, due to a decline in perishable
freight, and the rearrangement of its work was in conformity with a long standing
practice at Guadalupe station when seasonal business declined. Carrier also contends that claimant w
cannot be shown to have sustained any loss by reason of Carrier's action.
RESOLUTION
On the record before us we find the facts to be that after and during
the period of the abolishment of Clerical Position No. 7, the preponderance of
the remaining work of such position was absorbed by Clerical position No. 22 with
the remainder being assigned to Telegrapher-Clerk Positions No. 2 and 3. The
record fails to establish that the abolished position had eight hours of clerical
work to perform or that any of the remainder went to Agent position No. 1.
In urging a violation of the Scope Rule of the Agreement in this case,
Petitioner submitted an exhaustive survey and analysis of the fifty (50) plus
scope disputes which have come to the Board from the property of this Carrier.
Starting with early Awards 615 and 636 (both Swacker), the survey discusses all
of the subsequent Awards interpreting the clerks' scope rule on this property.
The conclusion reached in the survey is that, with the exception of the "ebb and
flow" and "incidental work" rules, the case law clearly established by these
Awards is that "all work normally and customarily assigned to employees comprising
the craft encompassed in the classification of the Scope Rule belongs exclusively
to members of that craft.". The survey further states that the better-reasoned
Awards, including Awards 19317 and 19318, clearly show the error of the exclusivity
rule.
Award Number 19517 Page 4
Docket Number CL-18598
We 'nave carefully and thoroughly studied the survey, the Awards
discussed therein, as well as the great number of Awards cited by Carrier.
But we cannot agree with the survey's conclusions.
In order to reach its conclusions, the survey made a great number
of special interpretations of prior Awards, including the designation of various
Awards as erroneous or as lacking in value as a precedent. After appraisal of
this part of the survey, we fail to see that these special interpretations provide
any enlightenment in respect to the case at hand.
In regard to Award 615 (Swacker), which Petitioner apparently views
as acceptable authority, the survey points out that this Award did not deal with
anything but clerical work assigned to Telegraphers. Since clerical work assigned
to telegraphers is the subject of the instant claim, Award 615 supports the action
taken by Carrier in this case, for, in that Award this Board stated:
"...For obvious reasons in diminution of force, a clerk
cannot undertake or be accorded telegrapher's duties but the
converse is not true; on the contrary, where two positions
are involved, one, that of a clerk, and the other, that of a
telegrapher, and one is to be abolished, the telegrapher-if any telegraph duties remain--has
the position including the assumption of the remaining clerical duties:- As previously stated, this
the time, long before, and ever since clerks agreements were
executed and they were made in the light of these conditions
which are a clear limitation or exception to the exclusive
right of clerks to the performance of clerical duties."
Petitioner also points to Awards 19317 and 19318 (both O'Brien) as
examples of recent Awards on this property which ignore arguments on "systemwide .practice" and "tes
Award on this property, Award 19233 (also O'Brien), shows no inclination to
ignore the system-wide rule, but, to the contrary, expressly recognized the rule
as controlling in the case. In Award 19233, involving these same parties and
Agreement, this Board ruled:
"We next turn our attention to the situation as it
existed commencing July 30, 1962, or the period subsequent
to the abolishment of Position No. 344. To prove a violation of the Agreement following the abolishm
No. 344, the Petitioner must necessarily rest its case on the
Scope Rule of the existing Agreement. In 1953 the instant
Scope Rule was before this Board in Award 6269; therein we
stated:
Award Number 19517 Page 5
Docket Number CL-18598
"'The Scope Rule in the Agreement before us
is general in character, and in no way
defines the work to be performed, nor does
it allow the Organization the exclusive
right to all clerical work to be performed.'
The matter again came before this Board in Award 15752
where it was written:
'* * *In a multitude of Awards, which are
too numerous to require citation, this Division has held that a past practice must be
system-wide in order for it to be controlling in cases where, as in this case, the
Agreement is system-wide.'
Petitioner submitted no evidence to overcome either of
these Awards. Accordingly, we will deny Items (b) and (d)
of the Claim,"
In accord with Award 19233 we find that the Scope Rule herein has
already been held by the Board to be what is called a general scope rule and
that the exclusivity rule is applicable thereto. The majority of recent Board
Awards establish that in such a case, in order for emplovees to prevail on
claim that work within the scope of their agreement has been improperly assigned
to and performed by persons outside the agreement, it must be established by a
preponderance of the evidence that the disputed work has historically been performed exclusively by
The record shows that the Petitioner has not carried this burden
in
the instant situation and, indeed, has submitted no evidence whatever on the
question of exclusive performance of the disputed work on a system-wide basis.
We shall therefore deny the claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
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
Award Number 19517 Page 6
Docket Number CL-18598
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJITST`BW~ BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 20th day of December 1972.