(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employee PARTIES TO DISPUTE: (Burlington Northern Inc.

(1) Carrier violated and continues to violate the terms of Appendix "H" - Union Shop Agreement - of the Clarks' Working Agreement, effective March 3, 1970, when it failed and refused to notify Mr. Jerome H. Larson that he was charged with noncompliance of the Union Shop Agreement.

 (2) Carrier shall now be required and ordered to comply with the terms of Appendix "H" - Union Shop Agreement.

 OPINION OF HOARD: This dispute involves Carrier's refusal to notify the
 named employe that he was in non-compliance with the
 Union Shop Agreement. That Agreement provides, inter elia, that an employe
 who disagrees with an allegation of non-compliance may request a hearing
 and the hearing may be followed by appeal and ultimate resolution through
 the arbitral process.

 In this dispute, the employe involved occupies the position of Chief Clerk (office manager) to the Sales Manager at Bend, Oregon. Prior to the merger of the SP8B Railway, in 1968 the position in question had been titled Steno-Clerk. On March 18, 1968 Carrier requested that the position be reclassified to Assistant to the General Agent, an excepted position. This was agreed to by the Organization on April 9, 1968 with the stipulation that the position would remain under the provisions of the Union Shop Agreement. Elwood Smith was se held the position until his death on April 24, 1973. He maintained his membership in the Organization during this period. Carrier states that the position was reclassified to Chief Clerk on March 3, 1970, the effective date of the merger of the SP8B with the Burlington Northern, on which date Carrier assigned a Sales Manager to Bend instead of a General Agent to handle the anticipated increase in activity.

 At the heart of this dispute in Appendix L of the Agreement, and in particular Sections 1 (a) and 4:



1. (a) There shall be no changes in the rules and agreements heretofore negotiated respectively Railway, the Northern Pacific Railway, the Chicago, Burlington & Quincy Railroad and the Spokane, Portland and Seattle Railway providing for the exception or exemption from the application of certain rules f employees, positions and departments, except as specifically provided herein.

 4. All positions individually listed in Rule 3(a)2 and 3 of the Great Northern clerks' Agreement, Rule 1(c) of the Northern Pacific clerks' Agreement, Rule 2(a) of the CB&Q clerks' Agreement and Rule 1(c) of the SP&S clerks' Agreement and all clerical positions in off-line and on-
 line Traffic or Marketing Departments and successor positions to such positions, and the employees incumbent thereto, shall be subject only to Rules 1, 3, 8, 9, 63, 64 and 71 of the Burlington Northern clerks' Agreement as provided by Section 3 of this Appendix, and, except for the positions listed below and the incumbents thereto, shall in addition be subject to the Union Shop and Dues Deduction Agreements (Appendices H and I):

 Chief Clerks (Office Managers) to System Officers not

Chief Clerks (Office Managers):




District or Division Storekeepers (Assistant Regional
 Material Managers and Material Managers)

 Supervisors *ultigraph Department (3)

 Shop Accountant (Department Head) Omaha

 Traffic Department Solicitors

 Tax Agents"


It is noted that 4 above specifically excludes from the Union Shop Agreement Chief Clerks to the dispute in perspective, were two other letter Agreements. An Agreement dated October 21, 1969 provided:

                              "October 21, 1969


                                  File: 604-D


        Mr. Kenneth F. Lassell, General Chairman Brotherhood of Railway, Airline and Steamship Clerks 738 Northeast 198th Avenue Portland, Oregon 97230


        Dear Mr. Lassell:


        This letter will confirm our understanding in conference yesterday that when the Management desires to establish excepted positions under Rule 1 (c) of the current Clerks Schedule, it may do so, provided the appointees are selected from one of the clerical and with the understanding the appointees will continue to be subject to the Union Shop Agreement while filling such excepted positions.


        This understanding will remain in effect until July 1, 1971 and thereafter until changed in accordance with the amended Railway Labor Act.


                            Very truly yours,


        Chief of Personnel AGREED T0:


        General Chairman, BRAG"


That understanding was effectively terminated by the letter dated March 29, 1971.

 Carrier's argument is based primarily on the clear exclusion of the position by Section 4 of Appendix L, supra. It is argued that the entire agreement must be viewed, not merely the Union Shop provisions and thus Appendix L modifies the Union Shop Agreement. Also, Carrier asserts that the cancellation of the October 21, 1969 Agreement supports its right to make the position excepted from the Union Shop provisions. By analogy, Carrier suggests that it would be just as appropriate for a notice to be served on the President of the Company as on the incumbent of the position
                    Award Number 21117 Page 4

                    Docket Number CL-21099


herein. As an additional point, the Carrier observes that the Organization was silent on the question of the Union Shop provisions applicable to the position in question from 1970 until the notice served on March 14, 1974. At the very least, Carrier observes that a fourteen month period passed after the incumbent was placed on the job until the March 1974 notice was served. Carrier argues that the doctrine of equitable estoppel should be applied.

 Petitioner first observes that it was unaware of the change in the title of the position until the Carrier's letter of March 22, 1974. Further, Petitioner presented evidence to indicate that on the Seniority Rosters dated January 1, 1970 and January 1, 1971 the position was listed as Assistant to the General Agent. The Organization also challenges the assertion that the incumbent indeed performs the functions of Chief Clerk, claiming that he supervises no clerks. The Organization argues that from the time the position was reclassified to Assistant to the General Agent in 1968, it was understood that the position would remain under the provisions of the Union Shop Agreement. It also contended that since the former SP&S Agreement did not list a Chief Clerks' position at Rend, such position could not be created following the merger, except by written agreement, which does not exist. The Organization concludes that the dispute should have been resolved by the hearing and appeals procedures provided by the Union Shop Agreement.

 We note that there is no evidence to indicate the Organization's knowledge of the change in title prior to the March 1974 letter. Carrier, in its argument, relating to earlier Awards on similar issues, states that those cases may be distinguished in that there was genuine doubt in those situations as to whether or not the jobs in question were covered by the union shop agreements. That is precisely where the problem exists in this dispute. The only evidence submitted by Carrier with respect to the change in job title of the position herein, was a Recommendation for Transfer dated March 3, 1970. On the other hand, the Organization has submitted seniority rosters after that date indicating the old title and also has challenged the right of Carrier to make the change unilaterally and further questions the substantive content of the new position. It is quite clear that based on the language of Appendix L the title in dispute is exempt from the Union Shop provisions. However, significant doubt has been cast on the facts surrounding the change in title which we are unable to resolve; the record simply is devoid of sufficient information to make a determination and in addition, this is not the proper forum. This Board has had similar disputes in the past and we have held consistently that Carriers could not arbitrarily refuse to give notice to individual employes, to inaugurate the special procedures specified in Union Shop Agreements, simply on the basis of Carrier's claim that the employes were not subject to that Agreement (see Awards 6744, 7085, 16590 and 18810 among others). The appropriate solution to this dispute, under the circumstances, is remand to the property for handling under the terms of the Union Shop Agreement; accordingly, the Claim moat be sustained.
                    Award Number 21117 Page 5

                    Docket Number CL-21099


        FINDINGS: The Third Division of the Adjustment Hoard, 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 Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT HOARD

                          By Order of Third Division


ATTEST: 12* 09A"Zmaw-o

        Executive Secretary


Dated at Chicago, Illinois, this 16th day of July 1976.