Brotherhood of Railway, Airline and Steamship Clerks, PARTIES TO DISPUTE. Freight Handlers., Express and Station Employes.

 Chicago, Milwaukee, 3t. Paul and Pacific Railroad Company

                STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9019) that:


`, (1) ,Carrier violated the Clerks' Rules Agreement at Alberton, Montana in Seniority District No. 6 on July 10 and 11, 19'(8, when it required an emplpye-not covered under the scope and application of the Clerks' Rules Agx'eem«t to assume the duties regularly performed by the-occupant of Boardman's :'ositioa No. 76950 and failing to call employs M. A. M,yelde to perform such duties associated with Boardman's Position No. 76950.

 (2) ,(terrier shall now be required to caapeasate employs M. A. Mjelde as additional four (h) hours at the time sad one-half rate of Boardman's Position No. 76350 for. July-.10, 1978 sad an additional two (2) hours at the rate-of time and one-halt. of Boardman's Position No. 76950 for July 11, 1978.

              OPINION OF BOARD: Claimant was the regularly assigned Boardman at Alberton, Montana is Seniority District No. 6 on the 8:00 P.M* to 5:00 A.M. shift. The claim herein is that on July 10 sad 11, 1978, the Carrier allowed or required a Traveling Engineer to assume duties normally performed by the occupant of the Boardman position in violation of Rules 1 (Scope), 9 (Bulletined Positions), and 34 (Notified or Called) of the Clerks' Rules Agreemeat.-.More specifically, the claim alleges that the Traveling Engineer did :the:-following: -s :: :. ·::.

      _ - "7/10/78 11:55 a.m. allowed Engineer to report

      . ' back to the Board. -

      7/10/78 3:00 p.m. allowed Brakeman to lay off

      7/11./78 12:57 p.m. released Engineer from the

      Alberton Board"


For this, claimant seeks compensation for as additional four (4) hours at time and one-half at the rate of the Hoardmen's position for July 10, 1978, and as additional two,(2j hours at the, rate of time sad one-half for July 11, 1973.
            Award Number 23571 Page 2

                      Docket Number CL-23437


The Orgazi.zatioa maintains that answering the phone and marking people up on the Bard are normal duties of the operator on duty, and that the Traveling Engiieer usurped duties of a position under the scope and ap. plication of the CLerka' Rules Agreement.

        The Carr_er defends its actions by initially maintaining that

the 'Traveling aveling Engineer wen acting in a supervisory capacity, in that he
 was instructing the operator on duty who was handling the Board, However,
 although the (terrier her never denied that the incidents in question were
 oerformad. by the Traveling Engineer, it subsequently argued that the Organi
 zation's proof was in the form of "mere assertions", citing the statement
 from the operator on duty saying that the Traveling Engineer "apparently"
 entered a transaction in the books. This type of evidence, the furrier con
 tends, fails to meet the burden of proof required of the claimant.

 We believe that the record supports the finding that the Traveling Engineer answered the phone and marked the book as indicated by the three entries in the log book. It is clear from the Agreement that he was thus performing routine clerical work under the pretense of acting in a supervisory capacity. As has bees Award 22303), the intent of the Agreement was to reserve this type of work to this craft. Furthermore, since the Carrier is not denying that the Traveling Engineer is fact made the three entries, but rather that this. was incidental to his supervisory function, there is no real dispute as to
 the occurrence, and thus, the fact that the operator on duty may not have !
 actually seen him take the calls or make the entries, does not require a
 different conclusion. Therefore, we find that the Agreement was violated
 by the Traveling Engineer performing the duties of the craft on July 10 sad 11,
 1978.

 Finally, the Xrrier contends that the Agreement does not provide for the monetary penalty sought by the Claimant. A review of Third Division Awards indicates that this issue has b=en raised many times with conflicting points of view; but, it is our conclusion that if the rules are to be effective there must be adequate penalties for violation. Accordingly, we shall affirm the line of Awards that hold that violation of the Agreement requires compensation as reparation for 20311 and Award 17973·

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record anti ell the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier sad 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
                        Avar~t Number 23571 Page 3

                        Docket Number (5.-23437


        That the Agreement vas violated.


                          A W A R D


        Claim sustained.


                              NATIONAL RA16ROAD ADJUSTMENT HOARD

                              By order a! Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 BY
 aemarie Breach - Administrative Asaietant

 Gated at Chicago, Illinoiap this loth day of March 1982.