(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Norfolk and Western Railway Company (Lake Region)

 STATEMENT OF CLAIM: Claim of the System Board of Adjustment No. 218 (GL-7382)
 on the Lake Region (Former NKP), Norfolk and Western
 Railway Company, that:

 1. Carrier violated the Agreement between the parties when on January 11, 1972, Carrier official, Trainmaster B. Kilgore, was used to transport Yard Crew No. 211 from the West End of the Main Track to the West Yards shanty in violation of Rule 1 of the Clerks Agreement,

 2. Carrier shall compensate Clerk R. E. Nay for a holiday call of five hours and twenty minutes at punitive rate in accordance with Rule 28 (a) and 28(d).

 OPINION OF BOARD: Claimant held the position of Third Trick Consist Clerk
 at Carrier's Bellevue, Ohio Terminal, with hours of 11:45
 P.M. to 7:45 A.M. Monday through Friday, rest days Saturday and Sunday. On
 Sunday, January 2, 1972, the Terminal Trainmaster transported a yard crew
 from the west end of the main track to the west yard shanty in the terminal.
 These facts are not in dispute.

 During the handling of this Claim on the property, the Organization argued that Carrier, in assigning the transporting of the crew to a nonagreement supervisor, violate Rules 27(f) and 28(a). The latter Rules provide as follows:



l




For the first time, with its submission, Petitioner submitted a series of bulletins, notices and advertisements all purporting to show that the work of driving train crews was included within the Scope Rule of the Agreement. Based on our rules, Carrier properly objects to the presentation of new material not subm material is clearly inadmissible (Awards 20132, 20336 and many others).

 In its submission and rebuttal statements, Petitioner bases its position entirely on the contention that the work in question is covered by the Scope Rule by the bulletining and assigning of Clerks as Crew Drivers. From this point it is argued that Carrier had no right to assign the work to a supervisor not included within the Agreement. In its arguments before this Board, Peti reverts to the argument that the provisions of the "work on unassigned days" Rule 27(f) are applicable.

 Carrier, in its arguments on the property, in its submission and rebuttal and additionally in its arguments before this Board, relies exclusively on the position tha well documentmd)and that the work in question has been performed by many non-agreement personnel and hence does not belong exclusively to the covered employees. In support of its position Carrier cites Award 13195 which deals with an almost identical circumstance and rule as that herein, in which the Board held that (on another Carrier) job bulletins, notices and wage agreements covering the transpo rise to an exclusive contractual right.

 The issue of work on unassigned days has been before this Board on many occasions and the Awards have clearly established the regular incumbent's right to the work (e.g.: Awards 19439, 19267 and 20187). In view of the state of the record and the fact that exclusivity is not the determinative factor in this dispute, we shall make no find Claim must be sustained based on the provisions of Rule 27(f) and the consistent interpretation of <






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






        /~ By Order of Third Division


        ATTEST: ~·~I Executive Secretary


Dated at Chicago, Illinois, this 13th day of December 1974.

DISSENT OF CARRIER MEMBERS TO AWARD N0. 20556 -

DOCKET N0. CL-20448 - (REFEREE LIEBERMAN)


The claim before this Board stated specifically that Rule 1 (Scope) of the Clerks' Agreement was violated. In the organization's submission, and in its rebuttal brief, no mention is made of the unassigned day rule. As a matter of fact, the last statement made by the organization in its rebuttal brief reads:

 "Since such positions were established and are maintained at Bellevue under the clerks agreement carrier is not permitted to now remove that work from the Scope Rule of that Agreement, and we ask, your Honorable Board to so rule."

 The issue of the work on unassigned days has no bearing on this dispute. The so-called 40-Hour W 19, 1949, contains this Rule in Article II, Section 3(i). It is not a reservation of work rule and has no effect on the Scope Rule.

 The work here involved has never been performed exclusively by clerical employes. D".any other c privately-owned automobiles or in company-owned vehicles, not oav at BeJlevue but at other terminals as well. Also, at some terminals, crews are and, for many years, have been transported in taxi-cabs.

 This Award is based on an erroneous premise and for that reason we must dissent thereto.

 H. F. M. Braidwood

 F. C. Carter

    i.

    . Euker


Go Lo Naylor

 G. M. Youhn