(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employee PARTIES TO DISPCTfE: (The Chesapeake and Ohio Railway Company



(a) That the Carrier violates the terms of the Clerks' Agreement and Memoranda in connection therewith when it permits employee not covered by the Clerical Agreement to perform work regularly assigned to and performed by Clerical employee, and

 (b) That R. E. Littleton, T-23 Operator, Rush, Kentucky, now be compensated far :5 hours and 20 minutes at punitive rate of pay account deprived of service on his rest day, Sunday, May 21, 1978.

 CLAIM N0. 2:

Memoranda in connection therewith when it permits employee not covered by the
 Clerical Agreement to perform work regularly assigned to and performed by
 Clerical employee, and , -

 (2) That M. L. Smith, T-6 2nd Operator, Martin, Kentucky, now be compensated for an additional day at pro rata rate of $56.61F per day for May 19 and 20, 1978.

 CLAIM No. 3:
(a) That the Carrier violates the terms of the Clerks' Agreement and Memoranda in connection therewith whey it permits employee not covered by the Clerical Agreement to perform work regularly assigned to and performed by Clerical employee, and

 (b) That M. L. Smith, T-6 tad Operator, Martin, Kentucky, now be compensated for an additional day at pro rata rate of $56.61+ per day for June 2 and 3, 1978.

 CLAIM N0. 4:
(a) That the Carrier violates the terms of the Clerks' Agreement and Memoranda in connection therewith when it permits employee not covered by the
                    Docket Number CL-23318


Clerical Agreement to perform work regularly assigned to and performed by Clerical employesj, and

 (b) That M. L. Smithy T-6 tad Operators Martian Kentucky nor be compensated for an additional day at pro rata rate of $56.64 per day for June 23, 27s 28 and 29, 1978.

 CWIM B0: 5:

 (a) That the wrier violates the terms of the Clarks' Agreement and .: Memoranda is connection therewith when it permits employes not covered by the Clerical Agreement to perform work regularly assigned to and performed by Clerical daployeas. and

        (b) That M. L. Smithy T-6 tad operator.. Martin., Kentucky., now be

compensated for an additional day at paw rata rate of $56.64 for July 19, 1978.
 OPINION OF BOARD: This case is the consolidation of five claims or groups of
 claims brought by two operators alleging that the Carrier
 on sixteen occasions allowed employes other than those covered by the Clerks'
 Agreement to perform work regularly assigned to and exclusively reserved to
 the Claimants. According to the Organizations the Carrier permitted employee
 other then clerks to handle messages which affected the movement of trains.
 The Organization argues that the handling of such communications is reserved
 exclusively to the Claimants under Rule 41 and The Scope Rule. The Carrier
 contends the sixteen messages contained information unrelated to the movement
 of trains and were not messages of retard. Except fns Claim No. 1. each
 Claimant was on duty at the time the alleged contract violations occurred.
 Initlallys, the Carrier asserts that this Board lacks jurisdiction
 to hear this controversy on the merits bemuse the Organization failed to
 specifically cite, on the property, which role was allegedly violated. The
 record reveals however., that the Organization referred to Rule 41 even be
 fore these disputes arose when it placed the Carrier on notice that the
 Carrier may be engaging is certain practices which violated Rule 41. Also,
 is tech of the five claims., the Organization accused the Carrier of depriving
 the ClaimaaEa of work historically reserved to the Clerks. These references
 sufficiently apprised the (terrier of the nature of the claims and the portions'
 of the Agreement which were purportedly violated so the Organization fulfilled
 the minimum requirements far specifying the alleged contract violations.
 The issue-is whether eadi-of~the sixteen-communications was a train
 older or xhetherp as the Carrier asserts, the messages were conveyed for
 purposes of information only. Fry a long line of Third Division cases n
 two part test has evolved to determine the character of a communication. To
 bring the conveyance of any of the messages within the exclusive province of w
 the operators,, the Organization must prove that: _ l.j_the primary .purpose-;f .
 the communication was to control or directly affect transportation, and 2.
 the nature of the message -inherently-required-_that-a--mcord has-been=_or=should
 have been preserved:- :third; Division. Avards-1Qo:_5781z, (Boyd); :llo~lo45k (Wilson)-;- ~: :.:
              _ Award Number 238$7 'Page 3

              Docket Number CL-23318


No. 12116 (Dolnick); No. 15'T38 (Kenea); No. 16685 (Dugan); No. 16898 (Frandea);
 and No. 21858 (Scearce). This Board has gives little credence to the label
 the Carrier places on the message but instead we have considered the functional
 attributes of the message, Also) those communications which only incidentally
 affect the movement of trains are not train orders. Third Division Awards
 No. 10699 (Ha.ll); No. 14481 (Wolf).

 In the absence of other probative evidences we are confined to determining the character of each communication aolelyr by looking at the messages on their face* Th 1829T (Dolnick). After care-
 fully reviewing each communications we find that only two of the sixteen
 messages conclusively satisfy both parts or the above test. The message on flay 21., 1978 (Claim No. l) changed the location where a train should set oft cars and the message conveyed on May 20j, 1978 (part of Claim No. 2) was a direct alder to an engineer to run his train ahead of another train. The other fourteen messages concerning the location of trains., the condition of tracks the method of moving cars onto a sidings track maintenances and. personnel matters were conve only for information purposes. Third Division Awards No. 11808 (0'Callagher); No. 12607 (Dolnick); No- 13500 (Moats); and Ro. 15688 (Sauna). Thus we must deny Claim Nos- 3s 4 and 5 as well as the May 19 portion of Claim No* 2.

 Because Claimant Littleton (Claim No* 1) wan on his rest day at the time the train order was communicated., Mal 34(c) expressly governs the amount of compensation due the Claimant and his claim is sustained to that eateat.

 In Claim No. 2. the Organization urges us to compensate the operator on duty for one day's pay for the violation which occurred on May 203, 1978. There is no specific provision is the applicable Agreement to justify such a remedy. The retard does not disclose box mach time it took to beadle the train order. We cannot speculate how mach time was consumed. In the alternatives Petitioner asks us to allow compensation fns at least a call if not the full eight hours specified in the claim sad they direct our attention to Axa:d 23318 where such a payment was made by this Board. Therefavreo oa the basis o! Axasd 23318 as rail as the several on-property settlements iawlviag s1mi1A,. situations which have been cited to us is this cases we will allow a "call" for the May 20th portion of Claim No. 2.
To recapitulates Claim No* 1 is sustained as outlined above; Claim No, 2 is denied for May 19th sad sustained for May 20th as outlined above; Claim Nos- 3s 4 sad 5 are denied.

        FIRD>1M3: The Third Division ad the Adjustment Boards upon the whole record and all the evidences finds and holds:


        That the parties waived oral hearing;

                ' Award Bomber 2387 page 4

                Docket Number CL-23318


That the (terrier and the Esployes involved is this dispute are respectively (terrier and Employee within the mean'" of the Railway Labor Acts as approved June 218 1934;

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

          That the Agreement was violated:


                        A W A R D


          Claim No, 1 is sustained in accordance with the Opinion.


          Claim No, 2 is sustained in accordance with the Opinion.


          Claim Nos- 3s !< and 5 are denied.


                  · AATIOaAL RAILROAD AWTJS24MT HOARD

                  By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 5By .A^~
 qgemarie Breach - Mmiristrative Assistant

 Dated at Chicago., minois, this 28th day of April 1982.

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