NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22684
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers., Express and Station Employee
PARTIES TO DISPUTE :
(The Baltimore and Ohio Railroad Company
37AT
WNT ()P' CLAM:
Claim of the System Committee of the Brotherhood
GL-8646, that:
(1) The Carrier violates the Clerk-Telegrapher Agreement, when
commencing August 2, 1976 and continuing, it requires and permits non-covered
persons to perform Claim Clerk clerical work covered by Clarks' Agreement at
Dayton, Ohio ctrl such work includes visual inspection of damaged freight,
photographing ages preparing., maintaining and forwarding records, reports
and statements incident therewithf and
(2) As a result thereof, terrier shall compensate Claim Clark
R. H. Horsley,, Dayton, Ohio, eight (8) hours' pay at overtime rate beginning
August 2, 1976 said continuing, five-days each week, until the Agreement
violation is corrected.
OPINION CF HOARD: Carrier maintains an Agency station in its General Office
Building at Dayton, Ohio. Among the station force at the
freight
office,
Dayton, Ohio, at the time of the case before us was Claim Clerk
position (r270. In August, 1975 Position C-270 became vacant and was advertised
for bide on Superintendent'& Bulletin No. 27 dated August 18, 1975 at Cincinnati,
Ohio. Claimant assumed the assignment is August of 1975, including performance
of Class "A' inspections (shipments inspected in car before unloading).
One of Carrier's customers at Dayton, Ohio is the Dayton Preen.. Inc.
which receives nmaerous rolls of paper originating on the (then) Seaboard
Coastline and Southern Railway. For same time a high number of damage claims
had been submitted to (terrier by Dayton Press, and (terrier had been paying
nearly $150.,000 per year in damage claims. With a vied to reducing the amount
of damage claims, by agreement with Dayton Press, Inc.., the Eastern Weighing
and Inspection Bureau (E.W.LB.) was retained.
TWO
E.W.LB. earployea were
stationed as the unloading dock at Dayton Press. These employee inspected
each car placed fan' unloading before it was unloaded. They also observed the
actual unloading of every car. In those instances where damage occurred by
fault of the Carrier a damage claim was presented to the Dayton agent.
The E.W.LB. employee commenced work on or about Tune 1, 1976. At
the same time,
Claimant
was informed by Carrier that he would no longer be
required to make any inspections or Exceptions Reports incident to Dayton Press
shipments. On July 26, 1976, Claimant submitted a claim for eight (8 hour's
Axard Member 23535 Page 2
Docket Number
CL-22684
pay for various dates in June and Jn7y,
1976.
The claim was denied and not
progressed further by the Organization. On September
23, 1976
Claimant submitted a new claim for eight
(8)
hours fair August
2, 1976
arid each subsequent
date, which claim van also denied. It was appealed by BRAG General Chairman
E. J. Reynolds in his letter of December 10,
1976
to Director of Iwbor Relations,
B. C. Massie* The claim was discussed in conference and denied by Mr. Massie
is his letter of May
9, 1977.
The Organization maintains that Carrier has violated the Agreement
between the parties by assigning to outside employee recognised Claim Clerk
work allegedly reserved to employee covered by the B8e0/BRAC Agreement. In
support of this argument it cites Rule 1-the Scope Rule-sad traditions custom
and practice on the property "pained from years of performing freight claim
work by Employes.," as instructed through Carrier guidance manuals.
Rule 1 of the Agreement reads as follows:
"RULE 1
Positions and Employees Affected.
(e) These rules shall constitute an agreement between
The Baltimore sad Ohio Railroad Company,, The Baltimore sad
Ohio Chicago Terminal Railroad Company,, and The Staten
Island Railroad Corporation and the Brotherhood of Railway,
Airline and Steamship Clerks, Freight Handers, Express
and Station Employees and shall govern the hours of service,
rocking conditions., and rates of pay of all employees ea®sged in the work of the craft or clans
station and storehouse employees, which shall include all
employees formerly covered by clerical agreement effective
July 1,
1921
(as revised December
15, 1969)
as
amended,
and all employees engaged in the cork of the craft or class
of Transportation-Oommuniaetion
Employees,
which shall in.
elude all employees formerly covered by the TrsnaportationOaamuaiaatioa Agreementsi The Baltimore sa
Oampeay effective July 1, 1928, as revised June
16, 1960,
as amended; The Baltimore and Ohio Chicago Terminal Railroad Company effective June
3, 1963,
as amended; sad The
Staten Islam Railroad Corporation effective August 1,
1959
se amended.
Clerical
Workers.
Employees who regularly devote not less than four (4)
hours per day to the writing sad calculating incident to
keeping records and accouutsp writing and transcribing
letters bills, reports, statements and similar rock, sad
to the operation of office mechanical equipment and devices is connection with such duties end cork
Award Number
23535
Page
3
Docket NUIber CL-22684
"The following employees and/or positions are also
covered by this Agreement:
Office Boys Chauffeurs
Messengers Tractor Operators
Train Announcers Motor (fir Operators
Gatemen Red Caps
Baggage & Parcel Roam Telephone Switchboard
Employes Operators
Station Helpers Telephone-Operators
Warehousemen Tower Directors
Operators of Office & Station Towermen
Equipment, Appliances Levermea
& Machines Bridge Operators
Elevator Operators Assistant Agents
Office, Station & Warehouse Operators
Watchmen Block Operators
Janitors Sidewire Operators
Porters Wire Chiefs & Assistant
laborers employees in & Wire Chiefs
around stations, were- Macagers & Wire Chiefs
houses, freight houses of Relay Offices
aril store houses Relief Agents
Callers Exclusive Agents
Stow:mn Operators handling switches
Truckers Ticket Agent-Operators
Sealers se711ng tickets
Coopers Exclusive Ticket Agents
Storehelpere Coal Billing Agents
Lumbermen Target Men
Scrap Assorters Train Directors
and any other positions of the crafts and classes not listed
above.
Assignment of Work.
(b) When the assignment of clerical work in an
office, station, warehouse, freight house, stare house, ar
yard, occurring within a spread of ten (10) hours from
the time such clerical work begins, is made to more than
one (1) employee not classified as a clerk, the total time
devoted to such work by all such employees at a facility
specified herein shall not exceed four
(4)
hours per
nay.
Award Number 23535 Page 4
Docket Number
Q-22684
"Interpretation of Rule 1(b).
The word 'employee' in Rule 1(b) mesas one in
the employ of this Company., whether cueing under the
Scope of this Agreement, another agreement, or outside the Scope of any agreement.
(c) When a position covered by this Agreement is
abolished, the work assigned to same which remains to
be performed will be reassigned is accordance with the
following:
(1) To position or positions covered by
thin Agreement when such position or
positions remain in existence at the
location where the work of the abolished position is to be performed.
(2) In the event no position under this
Agreement exists at the location where
the work of the abolished position or
positions is to be
performed,
then it
may be performed by a Yardmaster,, Foreman, or other supervisory a loyee, provided that less than fo
work per day of the abolished position
or positions remains to be performed;
and further provided that such work is
incident to the duties of a Yardmaster.,
Foreman, or other supervisory emplsyea.
(3)
Where the remaining work of an abolished
position is reassigned to positions coming within this Agreement, an effort will
be made, where practicable, to reassign
the work to a position or positions assigned similar work, higher rated work to
higher rated positions end lover rated work
to lower rated positions.
(4) Work incident to and directly attached to
the primary dative of another class or croft
sash as preparation of time oardej, rendering
statements or reports in connection
wick
performance of duty, tickets collected,, oars carried in trains, and care Inspected ear duties
of a similar character, may be performed by
employees of such other craft oar class.
Award Number 23535 Page 5
Docket Number CL-22684
"Exceptions.
(d) These rules shall not apply to laborers on coal
and ore docks or to laborers on piers, wharves and other
canter (rant facilities not a part of the regular height
station forces, nor to individuals where amounts of less
than Forty-Eight Dollars ($48.00) per month are paid for
special services which take only a portion of their time
from outside employment or business, and not more than
one (1) such individual shall be employed at any one point.
The term 'special services' is not intended to
apply to clerical work, except by mutual agreement between
the parties signatory hereto."
Carrier counters that neither Rule 1 nor W other part of the agreement supports the Organization
scope and does not describe work to be performed. Further, Carrier asserts,
no work vas takes from air clerical position at Dayton and gives to E.W.LB.
employee. Rather, (terrier states, the work being performed by &.W.LH. saployes never existed pr
At issue is the instant dispute are three questions. The first, and
threshold issue, is whether Rule 1(b) specifically reserves the work is question
to the Clerks. It the answer to this first question is to be
affirmative,
then
it must be demonstrated flat such work therein defined was performed for more
than four (4) hours per day by other than Clerks per Section (b) of Rule 1 (supra)
If., the evidence does not establish reservation by the express language of
Rule 1(b) then it must be determined whether the organization has demonstrated by
system-wide past custom, practice and tradition that such work has been assigned
by Carrier exclusively to Clerks.
According to Rule 1 work designated as belonging to Clerks includes:
"(b) When the assignment of clerical work in an office,*
station, warehouse, freight house, store house, or yard,
occurring within a spread of ten (10) hours from the time
such clerical work begins, is made to more than one (1)
employee not classified as a clerk, the total time devoted to such work by all such employees at a f
specified herein shall not exceed four (4) hours per day."
Clerical workers are those employee who regularly spend not less thus four (4)
hours per day performing such work. It is not disputed that Position C-270
was a clerical position. What is disputed is whether part ar all of the work
performed by E.W.LB. workers is clerical work which under Rule 1 of the Agreement by rights belonged
evidence to be unclear with respect to the work at issue. While filling cut
of forms such as those used subsequent to making n "Class 4" inspection may
be viewed as the "writing and transcribing ... reports, statements and sinslar work" described in Ru
to Clerks by that Rule.
Award Humber
23535
Page
6
Docket Number
CL-225,8f
It is therefore incumbent upon the Organization if it la to
prevail in this claim to show either exclusive system-wide peat practice
customs and tradition of reservation of such work to Clerks or that that
work clea rly reserved to Clerks by Rule 1. viz. "writing and transcribing
. reports, statements and similar work" wsaperformed far more than four
(4)
hours per day by (in this case) E.W.LB. employee.
Based upon the record before as the Organization has failed successfully to demonstrate a system-wid
reserving exclusively to Clerks the work of "Class A" inspections. Neither
has the Organization shown that move than four
(4)
hours of the E.W,hB,
employe's work day was devoted to work reserved to Clerks under the Scope
Rule.
Accordingly., based upon the foregoing the claim mist be denied.
FIHI)IliGB: The Third Division of the Adjustment Boards upon the whole retard
and all the evidence,, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved 1n this dispute are
respectively Carrier and Employee within the meaning of the Railway Labor
Acts an approved June 21,
1934;
That this Division of the Adjustment Hoard has ,jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
RATIONAL RAILROAD ADJUSSONT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago Illinois this 26th day of February 192.
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LABOR MEb1BER'S DISSENT
TO
AWARD 23535, DOCKET CL-22684
(Referee Eischen)
Award 23535 is in palpable error and requires dissent.
The facts as set forth in the record and correctly recited
in the Award demonstrate that the Carrier, rather than
authorizing overtime or directly increasing the number of
clerical positions, chose instead to contract out a substantial portion of work involving OS&D f
Ohio. Simultaneously, with such sub-contracting, and the
stationing of two Eastern Weighing and Inspection Bureau
employes at the facility, functions of work previously assigned
to a clerical position under the agreement were removed and
thereafter performed by outsiders, ETdIB employes.
The facts were not disputed. The arguments advanced by
both sides in support of their contentions were relatively
basic. The Organization argued that the permitted exceptions
to the scope rule did not allow EWIB employes to perform work
heretofore assigned to employes under the agreement. The
Carrier's basic argument was that "No work was taken from any
clerical position at Dayton and given to employees of the
Eastern Weighing and Inspection Bureau." The Carrier did not
argue the definition of clerk clause, Rule 1(b), i.e., the
four (4) hour prophylactic that classifies clerks and others
working under the agreement for pay purposes, as a basis for
defeating the claim. Nor did the Carrier see fit to argue
the archaic and imperfect systemwide exclusivity concept as
a basis for defeating the claim. For the Carrier knew, and
the Referee had ought to have known, that neither argument
would be valid. Rule 1(b) (quoted in the opinion) deals with
Carrier's employes specifically, (e.g., the references to
"...all such employes at a facility...") and not to outsiders
and non-employes as was the case here. More importantly it
applies only to clerks and others working under the agreement.
The Carrier also knew and the Referee had ought to have known
that the "exclusivity argument" was not in issue. Careful
review of everything written by the Carrier in their Ex Parte
and Rebuttal Briefs fail to disclose even a hint of an "exclusivity
argument" on their part.
The docket was presented to the Referee on February-28,
1980. Referee Eischen had the claim in his possession for
two years and released a proposed Award on February 23, 1982.
Referee Eischen did not see fit to decide the claim on the
basis of arguments and authorities contained in the record.
Instead, he chose to manufacture new and additional reasons
to support a denial. Such conduct in and of itself makes the
Award a ludicrous nullity. While the Award disposes of the
instant claim it cannot and will not be considered as an authoritative decision.
It is tragic that the parties, after patiently waiting for
a decision on a dispute they sincerely wished resolved on the
basis of the record and arguments they had developed on the
- 2 - Labor Member's Dissent
to Award 23535, Docket
CL-22684
property and honestly presented to the Referee now have the
case disposed of on grounds neither saw fit to deal with -
grounds manufactured by the Referee.
' J. C. Fletcher, La or Member
Date:
3
- 3 - Labor Member's Dissent
to Award 23535, Docket
CL-22684