(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Western Pacific Railroad Company

1. The Western Pacific Railroad Company violated Rules 1 and 64 of the Clerks' Agreement when it arbitrarily and capriciously removed the performance of janitorial work in the Main Office of the Western Pacific Building in San Francisco, California on January 13, 1978.

 2. The Western Pacific Railroad shall now be required to compensate Ms. N. K. Shankel eight (8) hours pay at the pro rata rate from January 13, 1978, on a continuous basis until the violation ceases.

 OPINION OF BOARD: The Carrier raises a defense that the Organization failed
 to file the claim in compliance with the time limits Rule
 (Article V) of the applicable Agreement. The record indicates that the issue
 was engaged by the organization even prior to its implementation and supports
 the Organization's contention that the claim was submitted as it was on
 advice of Carrier officials. After submission of the claim, some two (2)
 months passed before the organization was apprised that the claim was directed
 to the wrong official. We need not dwell on this point; we conclude that the
 Organisation met its responsibility under the terms of the Agreement by the
 manner in which it filed this claim. Noting that the Carrier does not
 dispute the Organization's contention that it relied upon advice from the
 Carrier in filing the initial claim, we find that the carrier may not disavow
 its qbara o8,tessibility in the technical violation committed by the
 Organization.

 AgAid the sterits of this claim, it is beyond dispute that the pqsition of janitor existed, was filled by an employe represented under this :,A'Jt%pment.,c The-record makes it equally clear that numerous other jobs of a lidmixyr`or identical nature were held by individuals beyond the scope of the Agreement, doing such work in the same area as that of the past incumbent employe. The carrier asserts, without refhtationi, that the past incumbent employe occupied that job as a disabled employe unable to perform otter work and was permitted to hold such position until retirement; per the Carrierp it did so in an effort to meet the intent and spirit of Rule 56:


        "INCAPACITATED EMPLOYES


        Rule 56. The Railroad will endeavor to furnish employment (suited to their capacity) to employes who have become physically unable to continue in service in positions held by them."


While we find that the Carrier technically violated the Agreement at Rule 40 (F) by the abolishment of the position involved without consultation with the Organization beforehand, we likewise conclude that a compelling showing has been made that the job in dispute was reserved exclusively for the past incumbent as an alternative to his termination of employment prior to retirement. It is noted that the disputed job was the only one represented under the Agreement in the midst of a much larger custodial operation, performed by an outside contractor.

 We are compelled to conclude that the circumstances of this case separates it from those which involve the much-travelled and disputed question of exclusivity; and, while the Carrier obviously abolished the job in question, a sufficient showing has been made that it was established to meet the intent of Rule 56.

        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 violated.


                      A W A R D JA N a 5'982

                                        c

        Claim denied in accordance with the Opinion.

        °9° ppice - 8

        .s r_


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        Executive Secretary


Dated at Chicago, Illinois, this 8th day of January 1982.

LABOR MEMBER'S DISSENT

TO

AWARD 23493, DOCKET CL-23029.

 (Referee Scearce)

 Award 23493 is. in palpable error. The Award found that an agreement violation occurred. Having found. an agreement violation the claim should have.been sustained. Instead the Award excuses the violation on the basis~that the job improperly abolished had been established to meet the intent of Rule 56. Rule 40 (f) does not exclude from its coverage any jobs - it specifically does not exclude jobs that may have been established to meet the intent of Rule 56. Rule 40 (f) requires that work of abolished jobs be distributed to other jobs working under the agreement. The "intent and spirit" as well as its literal application were violated when work of an abolished job was removed from the agreement.
      Award 23493 requires vigorous dissent.


                              J. C. Fletcher, Labor Member