Brotherhood of Ra31vaY, Airline and Steamship Clerks,

                Freight Handlers, Express and Station Employee

PARTIES TO DISPUTE:
                Bessemer and Lake Erie ftsilroad Company`


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
                (GL-8927) that:


1. Carrier violated the effective Clerks' Agreement when it failed to use the regular employes tax work on a day which vas not a part of sap assignment to work overtime, using instead, an employs not covered by the scope at the Agreement;

 2. Carrier shall now compensate Chief Clerks W. D. Painter, D. L. Biley and A. E. Grinnell for three hours' pay each at the time and one-pelf rate of their respective positions for September 30, 1978.
              OPINION OF BOARD: The facts which are critical to the resolution of this otter are generally nad3sputed.


Cia3maats, three (3) Chief Clerks is Carrier's Main Street Office Building in Greenville,, Pennsylvania.. contend that Carrier violated Rule 1(a) and (d) and Rule 4(b) of the Parties' Agreement by tailing to assign said employee to perform overtime work on Saturday, September 30, 1978, but instead assigned such work (*prepare and mail out time sheets")1· to be performed by There is no dispute that the weak which is contested vas clerical is nature and thus, under normal conditions, would have been performed by Claimants.

 N 7 the w k a a fully-
 or is there any dispute that the employe who performed or we
 exempted employs sad that he did in fact, perform same.

 1. Carrier describes this activity thusly: "... s management employee came to the office on Saturday.. September 30, and spent less than one hour mailing the preprinted time returns to the foremen of the various outside nark forces at outlying locations on the railroad. This was necessary so the foremen would have the time returns in their possession on Monday,, October 2, 1978, the first nark day of their work week, so there would be no interruption in the orderly flat of information for payroll purposes, thus eliminating a possible delay in the preparation of paychecks for these employees" (Carrier's Ex Parts Submissions, pp. 3-4).
              Award Number 23540 Page 2

              _ Docket Number CL-23254


The record further shows that on September 26, 27, 28 and 29, 1978s the parties were engaged is a work stoppage in connection with a major dispute involving Organization and the Norfolk ate. Western Railway which, among other things, ceased Carrier's Greenville., Pennsylvania offices to be picketed by various of Organization's members. On Thursday., September 28,
 1978, the U. S. District Court for the Western District of Pennsylvania,
 is Civil Action No. 78-1089A, issued a Temporary Restraining order enjoining Organization's actions regarding the work stoppage and said Order wan made effective "... from sad after 10:45 PM" of that same day. According to Organization, however, "(O)n this particular Carrier, all picketing sad strike activity ceased on September 29, 1978, prior to 8:45 PM" (Organi.zation Submission.. p.3)&mid however. Claimants were not recalled to perform clerical duties as an overtime assignment on Saturday. September 30, 1978 but instead were recalled to perform their regul 1978.

 Organization's basic position in this dispute is that Claimants were Improperly denied the opportunity to work overtime on Saturday, September 30, 1978, bemuse, according to Organization, prior Board rulings regarding the interpretation of Agreement Rule 1(a) and (b) sad Rule 4(b) have determined that "... when work is requlred on the rest day of a five day position the Carrier is obligated to offer such work to the employs who performs it five days par week" (Third Division Awards 6689, 14.379, 14703 and 16672). Organization farther contends that, contrary to Carrier's assertion, Claimants are not required to advise Carrier of their availability to perform an overtime asaigomeat, sad that "... Carrier may not assume 'unavailability'" (Third Division Awards 22178 and 22446).

 In addition to the faregoiag, Organization also contends that furrier, by its action in this dispute, is attempting to punish Claimants for what Carrier believes was a violation of the Court's Temporary Restraining Order. According to O properly be left to the Court itself to decide; ate, moreover, any such consideration is irrelevant the "status quo" which existed prior to the work stoppage vas to be maintained. Still yet further an this same point Organization also maintains that an agreement dated February 9, 1979s between Mr. Wired 7. Kroll., Organization's International President, and Mr. Charles I. Hopkins, Jr., Chairman of the Nationa Railway Conference Board, was to have dismissed "... without prejudice ... all claims and counter claims alleged in such litigation".

 In response to Carrier's assertions, which will be discussed hereinafter, Organization, is refs. agreement does not now prevent Organization from having this matter heard cad decided by this Board because: (1) said Kroll/Hopkins agreement cannot supersede the Rules contained
                      Award Nuotber 23540 . Page 3

                      Docket Number CT.-23254


(2) the intent of said agreement was to have employee return to work immediately after th thereafter., and the data of October 2s 1978 was specified therein so as to establish nn outside time limit on this action; (3) the agreement itself was signed on October 6a 1978, and surely could not have been meant to apply to any situation which Carrier seriously believed that said agreement was to have served as a waiver to any prior agreement then (terrier would have appealed the instant dispute through the appropriate procedure as provided therein.

 As its final major area of argumentation Organization maintains that Carrier's position as presented herein is procedurally defective and therefore should be dismissed because: (1) ()wrier has failed to file s rebuttal brief ands "... thnss they have forfeited their right to challenge or relate any evidence a (Third Division Awards 14891, 15018, 1653.71. 16705 and 1T062)i and (2)__a-t--
 ... least two significant arguments which were included is Carrier's Submission were not presented to Organization while the claim was handled on the property ands as such, it is < "new end cannot now be considered ..." by the Board.

 Carrier's position in this dispute is equally as complex as that Which has been proffered by Organization.

 From the outset Carrier argues that "... this claim resulted from an emergency situation which was created by the work stoppage instituted by BRAC rhea BRAC stru Accoad.inglya Carrier contends that: (1) supervisions is this iacideata acted is a prudent and good faith manner in order to meet the emergency situation which was caused by the employee; (2) any emergency situation which is created by the employee cannot be used later as a basis for supporting s tuns claim which i (3) greater latitude in accorded to Carrier is cases involving an emergency situation (Third Division Axaxd 9394)·

 The second significant area of argumentation proffered by Carrier is that "... Claimants registered their mom-availability for a call for service by not returning to work is s timer mannerp in accordance with the terms of (the Temporary Restraining Order issued by the U. S. District Courts effective at 10:45 PM on Thursdays September 28., 1978., enJoIn'" them from engasd.ng ins paromotinga instigating or authorizing any sort of strike action against the Carrier". In support of this particular contention (terrier asserts tbata the Court order and despite the explicit terms thereof., "... officers of the 9RAC instructed their employs members to ignore the Temporary Restraining order and the employes their picketing sad work stoppage, including the Main Street office building is Greenville during regular office hours on Fridays September 29". Because
                      Award Number 23540 page 4 ,_

                      Docket Number CG-23254 y.


of the above awl farther because of the "... Pact fiat not one of the employee involved in the work stoppage notified the office supervisor in the Maintenance of Bay Department office that the work stoppage vas aver or that the employee vets available fns work ..."~ Carrier argues that "... Organization has failed to prove that the employee made themselves available for work following the work stoppage affil that by failing to return to work on Fridays Se supervisor of their availability, these employee registered their nonavailability for a call for ser Saturday." In concluding the above Carrier maintains that "(T)hia Board has held many times that the burden of proof rests upon the employs to make his availability knowa° (Third Division Award 16584).

 As its third and fourth areas of argumentation; which are based somewhat upon procedural considerations (terrier maintains flat: (1) Claimants had no contractual ri 2s 1978, in accordance with Item 2 of the Letter Agreement between National Railway Labor Conference Chairman Charles I. Hopkins and BRAC International President Fred 3. Kroll dated October 6., 1978"; and. (2) the instant claim is not properly before this Hoard because Item 4 of that same Letter Agreement between Mr. Hopkins and Mr. Kroll provided that questions such as that which is involved is the instant dispute °... should be referred promptly to Messrs. Hopkins and Kroll for resolutions sad (thus) the Organization has not submitted the question is this case to the
Before delving into the merits portion of this award there are several procedural considerations which must be addressed. These are organization's contentions that which were not presented on the property; and that furrier's failure to file a rebuttal brief thus serves as a forfeit of terrier's "right to challenge of refute any evidence and argument submitted by the Organization." Also to be addressed are Carrier's contentions regarding the applicability of the Hopkins/ICro11 Letter Agreement of October 6s, 1978 as it relates to the October 2 reassignment date as yell as the appeal procedure specified therein.

 As to Organization's contentions, the Board is of the opinion that much of the argumentation and evidence which has been submitted by Carrier in support of its respective position apparently vas not presented to Organization when the claim was handled on the property. For obvious reasons therefore, these arguments and evidence must now be rejected by this Board.

 Regarding the matter of Carrier's failure to file a rebuttal brief is visit of the many issues which are involved is the instant dispute, the Board is averse to disqualify Carrier's entire case because of a procedural
              Award Number 23540 Page 5

              - Docket Number M-23254


deficiency. More importantly, however* the basis of Organization's position
 regarding thin aspect of the dispute raises considerable doubts on the part
 of the Board particularly in light of the fact that several of the cases
 which Organization cites as being lsecedentinl do not appear to be as point
 with the specifics of the instant dispute itself (i.e. ---in Award 14891
 chain vas sustained because Carrier failed to file either an initial sub
 mission or a response to Organization's submission; is Award 16705 Carrier's
 claim was sustained because respondent failed to file either as initial sub
 mission or n response to Carrier's submission; in Award 15018 the procedural
 issue involved was the "untimely" submission which was dismissed and the
 matter was decided on the merits; is Award 16517 the procedural defect vas
 (terrier's alleged failure to raise a particular defense on the property not
 that Carrier had failed to file a Rebuttal Brief; and in Award 17062 the
 procedural issue, again was Claimant's alleged failure to disclose certain
 information when the dispute was first handled ,on the property.)

 Turning next to Carrier's procedural contentions regarding the
 Hopkins/Kroll Agreement of October 6s 1978 the Boards is simil.er fashion,
 finds that these arguments cannot be supported, The rationale fair this
 determination is as follows: (1) Item of said agreements though some
 what ambiguous is its constructions can reasonably be interpreted to mean
 that "BRAC represented employee who did not work because of the striking
 and picketing...may return to work on Mondays October 2s or as soon there
 after (after the strike) as the position they hold is scheduled to work"
 (Emphasis added by Hoa:d)p (2) Organization's contention that other BRAC
 represented employes worked an their regularly scheduled shifts sad that
 same employee worked on overtime assignments before October 2, 1978 has
 not been refuted by Carrier and this fact demonstrates that Carrier has
 not applied its policy consistently; and (3) the Hopkins/Kroll Letter
 Agreement merely provides that %**any dispute ...concerning the applica
 tion of this uaderstanding...shall be referred promptly to the President
 of BRAC and the Chairmen of the National Railway Labor Conference for
 resolution," and thus does not prevent either party from invoking the
 regular grievance procedure for those disputes such as that involved
 herein., which are alleged violations of both the Letter Agreement sad
 the parties' Basic Agreement as well. Regarding this latter points had
 the Hopkins/Kroll Letter Agreement intended to supersede the parties' Basic
 Agreement flees the drafters of said document should have articulated that
 intent clearly sad specifically.

 After having resolved the several procedural questions which have been raised by the parties, a resolution of the merits portion of the dispute appears to be somewhat anticlimactic since the record clearly supports organization's position is this matter. In arriving at the above posited conclusion the Board has found the following factors to be determinative: (1) Carrier apparently recalled other BRAC represented employes to work overtime is advance of their 1978; (2) all picketing and related strike activity had ceased prior to 8:45 PM on September 29, 1978, thus leaving approximately eleven hours is which ~crier could have contacted Claimants regarding the overtime assignment; ~3)(Carrier is obliga
                Award Number 235 Page 6

                _ Docket No. CL-23254


to contact an employs regarding the availability of an overtime assignment (Third Division Award 17062); (4) in the instant dispute Carrier admittedly made no effort whatsoever to contact Claimant's as to their availability; and (5) Carrier may not assume an employe's "unavailability" in such assignments (Third Division Awards 22178 and 22446).

        FINDnVGS: The Third Division of the Adjustment Hoard, upon the whole record sad all the evidences finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employee involved in this dispute are respectively Carrier and Employer within the meaning of the Railway Labor Acts as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; sad

        That the Agreement was violated.


                    A W A R D


        Claim sustained. \


                          NATIONAL RAILROAD ADJUS5MNT HOARD

                          By Order of Third Division


ATTEST:
      Executive Secretary


Dated at Chicago Illinois this 26th day of February 1982.

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