NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-18101
William M. Edgett, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employee
PARTIES TO DISPUTE:
(The Western Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6543)
that:
1. The Carrier violated the rules of the Agreement extant between
the parties when it removed the work of unlocking the entry door to the Sugar
Shed at Oakland, California from employee covered by the Agreement and permitted and/or required thi
scope and operation of the Clerks' Agreement.
2. Floyd D. Hillyer be allowed a minimum call for September 9, 1967
account Yardmaster Hamlin performing Clerk's work in unlocking Sugar Warehouse
at Oakland Mole for switching between 4:30pm and 6:OOpm that date.
3. Mr. M. R.Whittaker and/or his successors on the position of
Bill-Interchange-Yard Clerk be compensated for a minimum call for the violation on Tuesday, October
Saturday, October 7, 1967 and on each day thereafter when this work was
required and is performed by the Yardmaster.
OPINION OF BOARD: Carrier issued the following memorandum on August 26, 1967:
All Chief Yard Clerks
All Yardmasters
Effective immediately, there is a key available on the Chief
Clerks desk to unlock the entry door at the sugar dock. If
and when it becomes necessary for this key to be used, it
will be the responsibility of the Chief Clerk on duty at the
time to unlock the door and see that unauthorized persons do
not have access to the key.
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Award Number 19551 Page 2
Docket
Number CL-18101
It amended these instructions on August 29, 1967, as follows:
"Oakland, California
August 29, 1967
File A-515 (Amendment to
my instructions of August
26, 1967)
All Chief Yard Clerks
All Yardmasters
Effective immediately, this amendment is made to my prior
instructions of August 26, 1967, regarding the key to the
Sugar Dock: the Bill Interchange Yard Clerk will be used
to unlock the sugar dock entry door for the switch crew
when instructed to do so by the Chief Clerk or the Yardmaster. It will still be the responsibility o
Clerk. on duty to see that unauthorized persona do not have
access to the key.
/a/ R. Smalley
Agent"
On the claim dates a Yardmaster unlocked the sugar dock. The
Organization asserts that once work has been assigned to a position covered
by the Agreement it may not be performed by employees not covered by the
Agreement. It cites the Scope Rule and Rule 40 (f). Rule 40 (f) makes provision for handling
not relevant to the factual situtation involved in this claim.
The Scope Rule of this Agreement has not been viewed by the Board
as one which gives the employees the exclusive right to perform work (Awards
10506, 10853, 18416). When this is the case, under well establish principle,
it is necessary to look to practice and custom. The Organization makes no
claim that it can rely on practice and custom. Its claim to exclusive right
is not supported by the language of the Agreement, or prior interpretation
. of that language by this Board.
The Organization buttresses its argument by reliance on Award No. 91
of Special Board of Adjustment No. 192. That Award dealt with the failure
of Carrier to re-establish several Assistant Shop Clerk positions when it
reopened a shop which had been closed. The reports which had been prepared
by the Clerks were prepared by a Foreman after the re-opening. Special
Board of Adjustment No. 192 outlined the employee's argument as follows:
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Award Number 19551 Page 3
Docket Number CL-18101
"The employee, in effect, argue that once work is
placed under the Clerks' Agreement it cannot be removed
therefrom and given to other employee except as provided
in Rule 1(c), that Rule 1(c)4 does not stand alone but is
interdependent with 1(c) 1, 2 and 3."
Rule 1(c) referred to by the Special Board is similar to Rule 40 (f)
of the Agreement between these parties. In Award No. 91, Special Board of
Adjustment No. 192 limited the application of Rule 1(c) to those factual
situations which involved the abolishment of jobs. It said:
"We indicated in our Award in Docket 69 that Rule 1(c)
is a limitation on the so-called 'ebb and flow' doctrine.
It applies only in situations where a position covered by
the Clerks' Agreement is abolished. Under that rule when
work is assigned to a given position under the Clerks' Agreement and that position is abolished the
in the first instance to a position or positions covered by
the Agreement, if one existed at the location. This is true
even if the work on the abolished position is incident to
and directly attached to the primary duties of another craft
or class. This is not to say that work incident to and
directly attached to the primary duties of another craft as
set forth in Paragraph 4 of Rule 1(c) may not be performed
by employee other than clerks but simply that once such work
has been assigned to a position covered by the Agreement at
a given location it cannot 'flow back' to the class or craft
to which the work is incident, if the clerical position is
abolished and another position or positions covered by the
Agreement exist at the location where the work of the abolished
position is to be performed." (Emphasis supplied.)
The claim that the task of unlocking the sugar dock is reserved
exclusively to clerical employees must be denied for lack of Rule support.
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 Employee involved in this dispute are
respectively Carrier and Employee within the meaning of the Railway Labor
Act, as approved June 21, 1934;
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Award Number 19551 Page 4
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A WAR D
Claim denied.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ko~o
-'e
Executive Secretary
Dated at Chicago, Illinois, this 10th day of January 1973.
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