(Brotherhcpd of pailway, Airline and
 ( Steamship Clerks, Freight
 ( Head" sp
 Express and Station Employee
 PARTIES TO DISPM:
 (Missouri Pacific Railroad Company

1. Carrier violated and continues to violate the Clerks' Rules Agreement which became effective March 1, 1973, and in particular Rule 31 (c), beginning October 15, 1973, when it required General Clerk Ho. 056, James B. Cummings, to assist Switching Clerk Ho. 053 in the performance of duties assigned to the switching Clerk position, and failed and refuses to compensate Clerk Cumiags accordi 205-4852)

 2. Carrier shall nor be required to compensate Clerk James B. Ghmmiags, for the difference in the rate of pay ($1.36 per day), between that of General Clerk Ho. 056 and Switching Clerk Bo. 053, beginning Monday; October 15, 1973, and continuing each work day Monday through Friday, until the violation is corrected. Claim is to include any successors) to Clerk James B. Cummings and is to further include any overtime work performed and all subsequent wage increases.

 OPI<lIOlf OF BOARD: This claim is for the difference between the rate of
 the Claimant's position of General Clerk and th- _3.-her
 rated position of Switching Clerk. The basis of the claim is that when lie
 performed the duty of tracing cars, the Claimant was assisting anoth-r em
 ploye in a higher rated position within the meaning of Rule 31 (a) which
 provides that:

The above text is clear and unambiguous and thus the claim hinges on whether the facts establish that the Claimant was covered by the text during the claim period.

 The record reflects that the Claimant was given some of the duties to "work car tracers" on October 15, 1973. The Employee say that this duty was assigned to the Switching Clerk position and that the Claimant's duty constituted assisting the employe in that position. The Carrier ears that it assigned some of the car tracing work to the Claimant's General Clerk position~on October 15, 1973 and that on and after that date, the subject work was assigned to both the Switching Clerk position end the General Clerk


position. Consequently, says the Carrier, the Claimant was performing his own work when he performed the work of tracing cars on and after October 15, 1973.

 The record shows that the iuty to "work car tracers" is specifically listed in the bulletined duties that it is not listed in the bulletined duties of the Claimant's position of General Clerk. However, the Employes neither contend that these bulletins are the controlling evidence on the fact issue of whether the duty to "work car tracers" was assigned to the Claimant nor that the Carrier did not effectively assign such duty 1973. Moreover, the record reflects that such duty was in fact orally assigned to the Claimant on October 15, and nothing in the record indicates that such an oral assignment was ineffective. In there is no evidentiary basis for finding that the Claimant's work of tracing cars was in the nature of assisting another employe in a higher rated position. Indeed, the record e to the Claimant on October 15, 1973 and that, consequently, the performance of such duty by the Claimant on and after that date was done in the course of performing the assigned duties of his own position. Although the Ebiployes suggest that the Carri that the Carrier contended on the property that the subject work was assigned to the Claimant on October 15. Since this contention constituted a denial of the fact basis of the claim, no admission by the Carrier is apparent of record and the claim must be denied on the ground previously indicated. Final note is made of the Carrier's contention that the subject work was not higher rated work. Whether such work was or was not higher rated work has no materiality in the disposition of this dispute and this decision should not be taken as a ruling on that question.



That the Carrier and the Employes involved in this dispute are respectively Carrier and &nployes 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

                    Docket fitmber CL-21182

                    A W A R D


        Claim denied.


                            XATIMAL RAILROAD ADJUSTKi1T HOARD

                            By Order of Third Division


ATTEST: Iv,

        Executive Secretary


Dated at Chicago, Illinois, this 12th day of November 1976.
      LABOR MS'S DISSENT TO AWARD 21279 (DOCKET CL-21182)

      (Referee Blackwell)


The award herein is in palpable error for many reasons and in view thereof it requires dissent. The first paragraph of the Opinion correctly sets forth the issue. After correctly and precisely setting out the issue, one would think the issue would then be decided. Instead, however, the award avoids the issue and sets out a litany of gratuitous statements of such profound findings as:

 "The record shows that the duty to 'work car tracers' is
 specifically listed in the bulletined duties of the
 Switching Clerk position, and that it is not listed in
 the bulletined duties of the Claimant's position of
 General Clerk. However, the Elrployes neither contend
 that these bulletins are the controlling evidence on the
 fact issue of whether the duty to 'work car tracers' was
 assigned to the Claimant nor that the Carrier did not
 effectively assign such duty to the Claimant on October 15,
 1973. Moreover, the record reflects that such duty was
 in fact orally assigned to the Claimant on October 15, and
 nothing in the record indicates that such an oral assign
 ment was ineffective . . ."
 The author of the award then goes on in an effort to justify his denial
 decisior,which is indeed most absurd and ridiculous, as it is evident
 whether or not said duties were assigned by bulletin or orally, claimant
 did assist another employe on a position paying a higher rate and,
 therefore, under the quoted Rule 31(a), was entitled to receive the
 higher rate of pay for the full day.

      In addition, the author concludes by stating:


          "Although the Fmployes suggest that the Carrier admitted the fact of the Claimant's assisting another employe by not denying same on the property, the record shows that the Carrier contended on the property that the subject work was assigned to the Claimant on October 15 . . ."

                                Dissent to Award 21279


and then through sore stretch of the imagination concludes because he was assigned the work, not by bulletin but orally, it was work of his position and he, therefore, was not assisting another employe on a position paying a higher rate which would have entitled him to the higher rate for the full day under the provisions of Rule 31(a). This, again, is most absurd and ridiculous, and how the Majority can so conclude is beyond one's comprehen that it is in palpable error and requires dissent which is hereby vigorously registered.

 Labor Member

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