(Brotherhood of Railxay, Airline and Steamship Clerks, PARTIES TO DISPUTE : ~ Freight Handlers., Express and Station Employes

                The Chesapeake and Ohio Railxay Company


                STATEMENT (&' CLA>ri: Claim of the System Committee of the Brotherhood (GL-8880) that:


(s) The Carrier violated Rule 12 and others of the Clerks' Agreement November 7, lo, 11, 12, 13, sad 14, 1975, when they required Chief Clerk Vernon Cecil to suspend duties on his regular assignment and perform duties assigned position of Demurrage Clerk, C-82, on each date.

 (b) Carrier shall now allow Claimant Versos Cecil eight (8) hours pay at the pro rata rate for each date as a result of this violation.

 OPINION OF BOARD: Claimant Vernon Cecil was regularly assigned to the
 position of Chief Clerk. C-26, Prom Monday through
 Friday, at Plymouth, Michigan. Grady Noel was assigned to the position
 of Demurrage Clerk, C-82, firm Monday through Friday at Plymouth,
 Michigan. The only other position regularly assigned at Plymouth,
 Michigan during the time relevant here was the position of Agent, TE-3,
 held by a prior rights Telegrapher, a position not coordinated, at
 this time, with the clerical positions.

 Demurrage Clerk Noel was absent from his assignment, because of illness, on November 7, 10, 11, 12, 13 and 14, 1975· On those dates the Carrier utilized Claimant to do the work of Noel as well as his own. The claim here is issue is that the Carrier in making this assignment violated Article 12 and others of the Clerks' Agreement; the relief requested is that Carrier allow rata rate far each date Claimant was so utilized.

 The parties are in accord that the Carrier is normally entitled, under Rule 12(a) (1) of the Agr force xhere practicable to perform the work of employee off sick, within the limitations noted in th 12(a) (1) and (2) specifically and unambiguously provides that in applying to provisions, "it is und inside work rill not be assigned to move to outside work."
                  Award Number 23324 page 2

                  Docket Number CL-2311


The crux of Claimant's complaint here is that as Chief Clerk, all his duties are of as inside nature, or performed within the oPPice;,that the duties of a Demurrage Clerk, which Claimant was utilized to perform, partakes of outside duties; and that Claimant's utilization to perform those duties violates the Agreement.

 Throughout the handling of the claim on the property, Carrier took the position that Claimant, in the capacity of Chief Q.erk, is responsible for the supervision of employee who are assigned to work "inside" as well as "outside," and, therefore, by the very mature of these supervisory duties, the Chief Clerk is considered as assigned to both "inside" and "outside" duties.

 On July 23, 1979, her wrote to the Organization reiterating its position that, as Chief Clerk, Claim supervisory duties is considered as being assigned to both inside and outside duties. The July 23, 1 regular duties of Chief Clerk, apart from any supervisory responsibilities, call far outside work is calling personally on railway customers relative to billing and/or car usage problems and handling waybills and other interoffice correspondence between Plymouth Depot
Claimant asks the Board to disregard the defense that the regular duties of a Chief Clerk call for performance of outside work because that defense was never advanced in the instant dispute while it was being handled on the property. Claimant notes that the Carrier's July 23, 1979 letter setting forth this defense was written four days after filing of the notice of intent. Prior thereto, (terrier had relied virtually exclusively on the proposition that Claimant was open to outside assignments because of hi record satisfies us that issue was never joined on the property as to whether the Chief Clerk, as such, had outside duties.

 In these circumstances settled and controlling authority precludes us from considering this belated contention. See Third Division Award No. 20025 (Sickles); 3950 ('); 5107 (Parker); 5469 (Carter); 8324 (McCoy). Accordingly,, we make no finding on the merits of this contention.

 Remaining for consideration is the defense that, by virtue of his supervisory status aver a Demurrage Clerk who has outside duties to perform, Claimant as Chief Clerk must be regarded as having outside duties also, for purposes of Section 12. Claimant's basic position in this regard is that supervision of an "outside" position does not assign the particular duties, ar functions, of that position to that of the supervising position. In addition, Claimant notes that the office farce at Plymouth, Michigan, was entrusted to the Agent -4ho was given an allowance of 137 hours a moth for that purpose, the bulk
      -- Award Number 23324 Page 3

      Docket Number CL-23141


of his assigned time. By contrast the statement shoaling disposition of the Chief Clerk's duties at Plymouth reveals that he is designated, among other tasks, to "assist" supervision of the office farce and is given a total. of five hours per month far that purpose.

 The 'parties cite no precedents on the broad issue whether a supervisor,, by virtue of his supervision, takes on the attributes of the position supervised, more particularly, its character as outside or inside work. gas does the Board think it necessary to reach that issue in the present case. Suffice it to indicate that where, as here, the fief Clerk is designated only to assist in the supervision of the office force, being given a total of five hours per month for the performance of that function, and the total office force is the circumstances consists of one demurrage clerk, same of whose duties involved outside work, the suggestion that the Chief Clerk thereby becomes as "outside" worker strains credulity and reason. The Board rejects that conclusion.

 By parity of reasoning the Board also rejects Carrier's defense that under Rule 24(c) of the Agreement, Claimant is not entitled to a penalty payment. Carri ground that Rule 2 (c) precludes such payment where employee are rearranged under Rule 12(a) (1). Ho Rule 72(a) (1) did not permit Carrier to rearrange Claimant is the instant case because Claimant was as inside worker and could not be assigned to an outside fob. The defense is rejected and payment will be directed.

        FLINGS: 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 Employer involved is this dispute are respectively Carrier sad 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 violated.

      Award Number 23324 Page 4

      -' Docket Number CL-23141


                    A W A R D


Claim sustained; Claimant shall be allowed eight (8) hours pay at the pro rata rate for November 7, 10,, 11.9 12, 13 sad 14~ 195.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago., Illinois this 19th day of June 1981.