NATIONAL RAILROAD ADJUSTMM BOARD
THIRD DIVISION Docket Number CL-22595
Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers,
Express and Station Employes
PARTIES TO DISPUTE:
Norfolk and Western Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8584), that:
1. Carrier violated the Agreement between the parties when
on January 27, 1977, they abolished the position of second trick Clerk's
position at Kinney Yard on the Norfolk Division and since then has used
Extra Board Clerks to fill the position and/or used the regular trick
clerks to work overtime instead of reestablishing the position as called
for under the April 1, 1973 Agreement.
2: As a consequence of the above stated violation Carrier
shall now be required to compensate the senior available furloughed
employee for each date this position was worked and is filled by Extra
Board clerks and/or worked overtime by the regular assigned
clerks.
This pay to be based on the applicable pro rata rate of the position.
This claim shall commence Monday, March 20, 1977 and continue until this
violation is discontinued or the position is reestablished. The senior
available furloughed clerk to be determined by a joint check of the
Carrier's records and also the days this position is filled or worked
overtime will be determined by a joint check of the Carrier's records.
(HRAC Exhibit 1)
OPINION OF
BOARD: /Prior to turning to the merits of this dispute, we
must deal with the Carrier's arguments that the claim
before the Board has not been timely presented and is therefore barred
from our consideration. The Carrier argues that a position was abolished
on Jams 27, 1977 and that a claim was not filed until May 17, 1977
claiming compensation retroactive to March 20, 1977. This, they argue,
is not in accord with Rule 38(a) in that the claim was not filed within
aixtv (60) days from the date of the occurrance on which the claim is
based. The organization argues that the claim is proper in that it is
a continuing claim filed under Rule 38(d) and as such it may be filed at
any time except that no money can be claimed retroactively for more than
sixty (60) days prior to the filing date. We are persuaded that the
Organization's contentions are correct, that the claim before us is one
of a continuing nature and fits within the Parameters of the National,
Award Number 22508 Page 2
Docket Number CL-22595
r
j~(Disputes Committee DECISION N0. 21. See also Awards 13651 (Eng7.estein)
and 21782 (Eischen). We will consider the claim on its merits.,
on January 27,
1977
the Second Trick Yard Clerk Position at
Kenney Yard was abolished. The remaining work on the position was in
the main assigned to either the First Trick Yard Clerk Position or to
the Third Trick Yard Clerk's Position. However, on occasion, the
First Trick Yard Clerk worked overtime into the hours within the time
assignment of the abolished Second Trick Yard Clerk. Also, the Carrier,
on occasion, utilized an Extra Hoard employe to perform extra work
within the hours of the assignment of the abolished Second Trick Yard
Clerk Position. The organization argues that this occurred with
sufficient regularity to require the bulletining of a regular assignment.
The organization argues that Carrier's actions violated Hole
12 of their agreement, particularly paragraph (g), reading:
"(g) New positions or vacancies of thirty
calendar days or less duration shall be
considered short vacancies and may be filled
without bulletining. However, when there
is reasonable evidence that such new positions
or vacancies will extend beyond the thirtyday limit, they shall be immediately bulletined
showing, if practicable, probable or expected
duration."
The Carrier disputes this. There is some evidence in the
record that indicates during one time span the "position" was filled
in one fashion or another on what would have been fifty per cent of its
assigned work days. There is other evidence covering a longer time
period that shows that the "position" was "worked" only seventeen
per cent of the time. The record also discloses that for two separate
three month periods no work was performed at all during the hours of
the abolished assignment. From this and other evidence on the
frequency of work we must conclude that the Organization has failed
to establish that Rule 12(g) of their agreement was violated.
We will deny the claim.
Award Number 22508 Page 3
Docket Number CL-22595
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 denied.
NATICKAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
ATTEST:
614,
Executive Secretary
Dated at Chicago, Illinois, this 17th day of September 1979.