(Brotherhood o' Railway, airline and Steamship PARTIES TO DISPUTE: (Clerks, Freight Handlers, Express and Station Employes



1. Carrier violated and continues to violate rules of the Current Clerks' agreement, particularly Rule 1 and others when it allowed an employe not in any way covered by the rules of the current agreement to perform work assigned to the General Clerk.

 2. Carrier shall new he required to compensate Mr. V. R. Tinsley at the punitive rate of the position of .-eneral Clerk beginning October 10, 1970 and continuing until tnis violation is corrected.

 OPINION OF BOARD: The basic issue in this dispute is whether the Carrier
 violated the "greement when it required a Roundhouse
 Foreman, not covered by the Agreement, to perform certain of the duties of
 claimant on claimant's rest days. The specific work involved is "working
 up lists for enginemen who are to be called for work. keeping recoras of
 trains and men laying off,*** " The record shows that prior to September 19,
 1970, when the then incumbent Division Clerk retired, the work in question
 was periormed by the Mechanical Foreman when the incumbent was not un duty
 as well as on his rest days. Upon the retirement mentioned above the remaining
 clerical duties of the position were absorbed by the general clerk, the
 position of Division Clerk having then_been abolished. The work in question
 in this dispute continued to be performed by the Mechanical Foreman on the
 claimant's rest days.

 The Petitioner, in handling this claim on the property, cited "particularly Rule 1 and others" in support of its position. Rule 1 is the Scope Rule of the Agreement. A review of the record shows that Rule 1, of the Agreement, is general in natu;e, in that it lists the positions covered by the Agreement but does not define the duties of such positions. We do not find thatl~&4tiener has shown exclusivity to the performance of the work herein involved under the circumstances described in the claim. On the contrary, it is clear that fo the work complained of performed by the Mechanical Foreman on the rest days of the Division Clerk was well established.





            Also see Award 14604, wherein it was stated:


            "Rule 1 - scope lists only the job classifications for the covered employees. :t neither defines nor describes the work of such employees. The numerous Awards of this Division have held that in this type of Scope Rule, the Petitioner must show that the disputed work has been historically, traditionally and customarily performed by the affected employees."


    Ln its submission to this 2oard, Petitioner relied on the language of Rule 42(f), re Work on Unassigned Days, as also supportive of their position. However, a thorough during the handling on the property.


            In Award 1.9964, it was Ftated, in pertinent part:


            `4 find that the organization, during the handling on the property, did not assert that a specif been violated by carrier, ·'~***. This Board, in a long continuous line of awards, has repeatedly held that it is too late to supply the specifics for the :first time in the submission to this Board because (1) it in effect raises new issues not the subject of conference on the property; and (2) = is the intent of the Railway Labor Act that iss»es in a have been framed by the parties in conference or, the property *****" Also see Awards 18442, 18122, 18006, 16733 and numerous others.


    We concur in the rationale expressed in these prior Awards and find that Petitioner's introduction of Rule 42 (f) in its submission to this Board was an effort "to mend its hold" and is, therefore, not properly before us.


            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


    For the reasons stated herein we find that Petitioner failed to satisfy the burden of proof that the work claimed was, under the circumstances involved, exclusiv


h
              Award Number 19831 page 3

              Docket Number CL-19781

              A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: ~~. i
 Executive Secretary

 Dated at Chicago, Illinois, this 29th day of June 1973.