Joseph A. Sickles, Referee


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

                  STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8789) that:


1. Carrier violated the Agreement between the parties when, on February 23, 1978, it abolished the fully-covered, Yard Master Clerk position at Crewe, Virginia held by R. N. Crannis, Jr., without discontinuance of the work thereof and placed those duties on a Section 4 and two Section 6 employes.

 2. (terrier shall, as a result, be required to compensate R. N. Crannis, Jr., eight (8) hours each day Monday through Friday at the pro rata rate applicable to the abolished position, commencing February 23, 1978 and continuing until the violation is corrected.

 3. Carrier shall further compensate R. N. Cranais, Jr., a twohovr call for each Saturday at the ove commencing February 23, 1978 and continuing until the position is restored.

 OPINION OF BOARD: This claim deals with an asserted abolishment of a Yard
 master Clerk position and a resultant distribution of
 duties as described in the statement of claim.

 The record demonstrates that the complained of action took place during the time when the Carrier's operations were; to a great extent, suspended due to a work stopp
A number of Awards have been cited by both parties to this dispute, and we have considered them at length.

 Our particular attention has been invited to Award No. 85 of Public Law Board No. 1790; relied upon by the Employes.

 With all due deference to the author of that Award, this Board is unable to conclude that said Award is responsive to the dispute submitted here is contemplation of the particular Scope Rule agreed upon by the parties. In fact., is a subsequent award of Public Law Board No. 2+74 involving this same agreement and these same parties, Award No. 85 of PL3 No. 170 was characterized as "aberrant" and "controversial".
 among others.

 Award Number 23839
 Docket Number C,L-229'2

 Page 2

 We are convinced that the logic expressed is Third Division Award No. 18609 is dispositive of the dispute in this case. There we said:

 "An examination of the language of the Agreement cited by the Organization as having been violated does not support the claim. First, there is no substance to the charge that the Scope Rule was violated in any way. Both positions involved are within the scope of the Agreemen be properly assigned or reassigned to any position within its scope, even as here, where the Assistant Agent is excepted from sere of the terms of the Agreeme
This position also finds support is Awards 231L2, 19629, 4235

          FINDINOS: The Third Division of the Adjustment Hoard, upon the whole record and. all the evidence, finds and holds:


That the parties waived oral hearing;

 That the Carrier ate. the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Art, as approved June 21, 193+;

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

 That the Agreement was not violated.

 A W A R D
Claim denied.

 Attest: Acting Executive Secretary
        National Railroad Adjustment Board


Ey
 semarie Erasch - Administrative Assistant

 NATIONAL RAILROAD ADJUSTI41ENT BOARD
 By Order of Third Division
 f

LABOR MEMBER'S DISSENT

to

AWARD 23839, DOCKET CL-22972

(Referee J. Sickles)


        The facts in Docket CL-22972 were not in dispute. The Carrier, on February 23, 1978, abolished a position fully covered by all of the rules of the Clerks' Agreement and assigned part of the duties of the abolished position to a semi-excepted employe. The Organization argued that this assignment of work violated the Scope Rule of the parties' agreement. The Carrier argued that the agreement did not restrict or prohibit the Carrier from assigning the work of the abolished position to occupants of partially excepted positions.

        The issues and rules involved in Docket CL-22972 were identical to those involved .in the dispute covered by Case No. 83,-Award No. 85, Public Law Board No. 1790, involving the same parties. In that Award, Public Law Board 1790 sustained the claim of the Organization. That Award should have been followed here.

        The Carrier argued that Award No. 85 was in error. This argument though, was more of an expression of dissatisfaction. This dissatisfaction with the Award and Carrier's attempt to have the Award upset did not make the Award less of an Award.

. .. .

        Award 85 should have been followed in the instant case on the basis of stare decisis. See for instance Awards 10911 (Boyd), 19258 (Devine), 20087 (Dorsey), 20374 (Bergman), 21651 (O'Brien), 21861 (Sickles), 21995 (Scearce), 22147 (Marx), 22155 (Wallace), and 22287 (Weiss). Award 23839 is in palpable error and requires dissent.


                                      etcher, Labor Member


                                Date


i

 ,, ~6.

 - 2 - Labor Member's Dissent
              to Award 23839

                CARRIER rtes' REPLY To


                  LABOR MEMBERS' DISSENT


                        TO


                AWARD 23839, DOCKET CL-22972


                  REFEREE J. A. SICBLFS


The Labor Members' dissent in this instance tells us that Award No. 85 of Public Law Hoard No. 1790 - since it involved the same parties - should hove been blindly. and religiously followed in "lemaing" fashion.

 What is overlooked is the fact that Award 110. 85 of PLH 1790 completely ignored a line of precedential awards of this Hoard extending over a period of sore bhea thirty (30) yearn. See Interpretation Ho. 1 to Award 3563, Award

 3866, 3878, 4235, 7821, 9925, 13963, 15081, 18609, 19629, 23182.

 In Award 15740, this Division said:

        "While this Hoard has always announced its strong attraction to the principle of stare deciais, it has never surrendered outright to such dogma.


                  * * * * e ~t r r a


        An earlier award by another referee, no matter how entitled it is to respected consideration, is not an expression emanating from the contracting parties. It is the opinion of another referee."


In this case Award 85 was properly characterized as "aberrant" and "contro-

 versial".
                        _2_


It was erroneous and properly disregarded is our Award 23839·

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