NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-19833
Benjamin Rubenstein, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Bangor and Aroostook Railroad Company
STATE?IGNT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7104)
(1) Carrier violated and continues to violate Rules L, 2, and 3
among others of the current clerks agreement, effective September 1, 949 when
as a result of its Bulletin #8 dated October 21, 1970 it abolished one of its
two (2),third trick positions in its yard at Northern Maine Junction, Maine and
transferred the work to employees of another craft and class not covered by the
Clerical Agreement.
(2) Until corrected Carrier shall pay Yard Clerk C, A. Hatt, a days
pay at punitive rates beginning November 1, 1970.
OPINION OF BOARD; The Petitioner contends that the Carrier violated Rules 1,
2, and 3 of the clerk's agreement, when it abolished one of
its two third trick positions and transferred the work to employees of another
craft, outside of the Clerical Agreement, thus depriving claimant of his work.
It asks for payment at punitive rates to Clerk C, A. Hatt,
Rule 1. - Scope of Employees Affected - lists the groups and classifications covered by the Agre
Section (b) of said Rule provides:
"Positions and work within the scope of this agreement belongs
to the employees covered thereby, and nothing in this agreement
shall be construed to permit the removal of positions or work
from the applications of these rules, except in the manner provided in Rule 49,"
Rule 2 (a) defines clerks as employees devoting four or more hours of
their time to clerical work. Rule 2 (b) reads:
"It shall not be permissible under Paragraph (a) of this rule
to assign clerical work occurring within the spread of the hours
of assignment to more than one position not classified as a clerk
for the purposes of keeping the time devoted to such work by one
employee below four hours per day,"
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Docket Number CL-19833
Rule 3 covers seniority within the districts and provides that
"seniority districts as now in effect, shall remain in effect unless or until
changed by mutual agreement _ .,"
On October 21, 1970, the Carrier posted an announcement that it will
have to reduce its work force on the third shift and abolish two clerks' positions, The third trick
claimant union, while the third was a member of the Transportation-Communication Division.
On November 1, 1970 one of the two 3rd trick employees was let Ko,
and part of his work was turned over to the member of the Transportatio:--Communications Division.
The Organization claims that the work now done by the member of the
Transportation-Communications Division belongs to the member of this Organization, exclusively, and
punitive back pay to November 1, 1970,
The Carrier, in its denial of the claim, cites its agreement with the
Transportation-Communication Division, which includes in its scope clerical functiuns. It further cl
communication work, and in view of the fact that clerical work was reduced to
such an extent, that there was not four hours work for the second clerk, his position had to be abol
rover to the Agent-Operator who, by agreement, was permitted to do some clerical
work.
The Carrier in its statement of position cites a joint study made by
it and Maine Central, (with which Carrier had arrangements for sharing expenses,)
of work between the hours of 11:00 p.m. and 6:00 a.m. (3rd trick), which study
showed that during a period of 147 hours, the employees worked a total of 61
hours and 36 minutes and were idle a total of 85 hours and 24 minutes.
"The productive time of the two clerks of the Organization herein constituted
but 43 hours and 37 minutes, while they were idle 54 hours and 23 minutes ,.,
The time study made by the two railroads revealed that one clerk worked an average of 4 hours and 12
The Carrier further cited Article 1 of its Agreement with the Transportation-Communication Divis
and claims that under the provisions of its agreement with the TransportationCommunication Division,
functions.
The issue to be determined by this Board is, whether the agreement between the Organization here
that all clerical work,regardless of its nature, belongs solely and exclusively
to members of the Organization.
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Docket Number CL-19833
The claimant seeks to answer this question in the affirmative. The
Carrier contends the opposite. It claims that the nucleus of a station work
force is the Agent and Operator-Clerk, whose principle function is to expedite
the movement of-trains and handle record keeping. Clerical employees are added
only when record keeping increases beyond the capacity of the basic work force,
and conversely when the record keeping decreases, the clerical force may be
decreased and the remainder of the clerical work turned over to the Agent and
Operator-Clerk.
The issues in the instant case are somewhat similar to those in Award
No, 13249 (Hamilton) between the same parties. In that case, we held, that
"where the work at a particular location decreases, and there is telegraphic
work remaining, it is proper to retain the telegrapher, and assign to hip clerical work to fill out
or communication duties."
We said there:
"There is no question that, if the volume of work for the
regular days of the position would have so diminished, the
Carrier could have properly acted in the same manner, and
assign the remaining duties of the clerk to the telegrapher,"
This is exactly what happened in the instant case. The Board sees no
reason to reverse its well established position.
Rule 2, definition of clerk, defines clerks as those "who devote four
(4) hours or more of their time on any day to
..."
their duties.
The Rule is clear and unambiguous. For an employee to be designated
as clerk, he must devote four or more hours per day to his duties. Conversely,
an employee, who devotes less than four hours. per day to clerk duties, is not
designated as clerk or clerical worker. Had the parties intended an employee
doing less than four hours per day, to be designated as clerk, they would have
provided so in the Rule. if an employee has no work of four hours or more per
day, he cannot be designated as clerk or clerical worker and his job is not
protected under the provision of the agreement.
The study referred to in the Record and cited hereinabove shows that
one of the two clerks on the 3rd trick worked only two hours and two minutes per
day, almost half of the tine required to designate him as clerk.
The Organization does not contest, nor present any evidence to controvert the above mentioned st
to refute the Carriers claim that the work involved has not been historically,
istomarily, and exclusively that of the petitioner herein.
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Docket Number CL-19833
The Board law has been clearly established 1n numerous decisions
that the burden is on the petitioner to prove its claim in such cases,
We are of the opinion that claimant failed to establish its burden
of proof.
Claim is to 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 is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Ell W ~ ~~1 ,
Executive Secretary
Dated at Chicago, Illinois, this 25th day of May, 1973.