NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-26028
Martin F. Scheinman, 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-9929) that:
1. Carrier violated the Agreement between the parties in particular
but not limited to Rules 1, 34 and 37, as amended, when on November 16 and 17,
1981, it required or permitted Conductor Roy Mason to perform work reserved
exclusively to employes covered by Clerical Agreement.
2. As a consequence of the above-stated violation Carrier shall now
be required to compensate Clerk E. C. Davis, Jr., eight (8) hours pay at the
time and one-half rate of pay for the stated date based on a monthly rate of
$1724.82. (Organization File: 3213-E, Carrier File: CLK-LP-82-37)"
OPINION OF BOARD: Claimant was assigned to the position of Yard Clerk,
7 A.M. - 3 P.M., rest days Monday and Tuesday. On November
16 and 17, 1981, (Monday and Tuesday) Carrier elected not to fill Claimant's
vacancy and instead assigned certain of its duties to a Conductor.
As a result, the Organization filed this Claim, seeking eight hours
pay at the punitive rate for the days in question. Carrier timely denied the
Claim. Thereafter, it was handled in the usual manner on the property. It is
now before this Board for adjudication.
The Organization contends that the Scope Rule specifically reserves
the work of Yard Clerks to members of its craft. As such, it argues that it
need not establish that the disputed work has been exclusively performed by
its members. Accordingly, it asks that the Claim be sustained.
Carrier, on the other hand, asserts that the work does not belong to
members of the complaining craft. Instead, it insists, a Yard Conductor
simply reviewed or checked switch lists against the cars the yard crew had
been assigned to classify on the days in question. Carrier maintains that
Yard Conductors and Brakemen had performed this type of work many times in the
past. As such, Carrier argues, the disputed tasks were simply incidental to
Yard Conductor functions. Thus, it asks that the Claim be rejected.
The Board is convinced that the Organization has demonstrated its
right to the work in dispute. In this context, we note Third Division, Award
No. 20556 wherein the Neutral Referee stated:
Award Number 26318 Page 2
Docket Number CL-26028
"The issue of work on unassigned days has been
before this Board on many occasions and the Awards
have clearly established the regular incumbent's
right to the work without the necessity of proving
exclusivity (e.g. Awards 19439, 19267 and 20187)."
We find this Award controlling here. It is undisputed that Claimant's unassigned days are at iss
to a Yard Conductor. While Conductors and Brakemen may have performed this
work in the past, having occurred on an unassigned day, it need not be established that it was exclu
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and upon the
whole record and all the evidence, finds and holds:
That the Carrier and 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
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. Deter - Executive Secretary
Dated at Chicago, Illinois, this 13th day of May 1987.
f
CARRIER MEMBERS' DISSENT
TO
AWARD 26318 DOCKET CL-26028
( e eree Martin , c e~nman
The claim involved in Award 26318 arose because the Carrier allegedly
allowed Conductor Roy Mason to perform work reserved exclusively to BRAC
employees.
In its Award, the Majority stated:
"The Board is convinced that the Organization has
demonstrated its right to the work in dispute. In this
context, we note Third Division, Award No. 20556 wherein the
Neutral Referee stated:
'The issue of work on unassigned days has been
before this Board on many occasions and the
Awards have clearly established the regular
incumbent's right to the work without the
necessity of proving exclusivity (e.g. Awards
19439, 19267 and 20187).'
"We find this Award controlling here. It is undisputed that
Claimant's unassigned days are at issue here. On those days,
work he performed was given to a Yard Conductor. While
Conductors and Brakemen may have performed this work in the
past, having occurred on an unassigned day, it need not be
established that it was exclusively performed by members of the
Organization."
Initially, exception is taken to the statement that "It is undisputed
that Claimant's unassigned days are at issue here." The record of handling on
the property reveals the instant claim was initiated account Carrier
"...required or permitted Conductor Roy Mason to perform work reserved
exclusively to employees covered by the Clerical Agreement." (Emphasis
added). The Organization also alleged "...the Carrier arbitrarily "blanked"
the Yard Clerk position at Government Yard and used an employee not covered by
the clerical craft rules to perform the work and duties of such vacant
clerical position." (Emphasis added). Carrier's statements that "...Relief
Position No. 41 was under advertisement [and] the Carrier's decision to blank
this position during the advertisement period was proper and in accordance
CMs' Dissent to Award 26318
Page 2
with Rule 12(h)..." was not refuted by the Organization and must be considered
as fact. The claim dates were part of an assignment; they were not unassigned
days. Regarding the exclusivity issue, statements from Conductor Mason and
Carrier officers clearly demonstrate Conductor Mason was not given yard clerk
work to perform on the claim dates. Conductor Mason's statement that the
disputed duties were incidental to his yard conductor assignment "...for the
past five years and probably longer" was not denied. The Organization has
clearly failed to meet its burden of proof obligations. The Majority's
decision, by recognizing no substantive evidence appears in the record to
support the Organization's exclusivity allegations has exercised authority
beyond its jurisdiction.
Second, yard conductors have always verified, corrected and updated
switch lists of cars they handle. It is not understood how the principle
enunciated by Public Law Board 1790, involving these same parties, in its
Awards 77 and 7& can be ignored by the Board in this Award. Award 77 PLB
1790, reads in pertinent part:
"On May 31, 1977, Carrier wrote to Employes as follows:
"Yardmasters, conductors, brakemen and employes of other crafts
do prepare track checks on this property. In this connection,
Form CR-019 has been prepared by conductors or brakemen for
many years on this property. A copy of such form is attached
for your ready reference.
"This is nowhere categorically challenged by Employes."
Third, the Majority ignores the decisions of Public Law Boards 1790 and
2668, involving these parties and the identical rules which have rejected the
precedential value of Award 20556. In Award 98, Public Law Board 1790, the
Board held
CMs' Dissent to Award 26318
Page 3
"Nowhere in the record do Employes explicitly deny the
unequivocal assertions by the Carrier that supervisors,
trainmasters, road foremen of engines, general yardmasters as
well as clerks and others have transported train crews in their
own automobiles or in Carrier owned vehicles at Conneaut and
other terminals. And the substance of these assertions has
appeared in much of the correspondence stemming from the
handling of the claim on the property. In the absence of a
denial, and in the absence of allegations to the contrary in
Employes' submission to this Board, the fact has been firmly
established that transporting train crews is not exclusively
the work of clerks.
"Employes rely on Third Division Awards 20556 and 21806 in
support of this claim. The facts in Award 20556 are
comparable. There, too, a supervisor (trainmaster) transported
a yard crew from one area to another in the terminal on a rest
d ay. And, there, too, the organization invoked the unassigned
day rule.
"It is with considerable reluctance that this Board finds Award
20556 is not a binding precedent which should apply to the
instant claim. The unassigned day rule - Rule 34(d) - reads,
in part, as follows:
'Where work is required to be performed on a
holiday which is not a part of any assignment
the regular employes shall be used.'
"Before this unassigned day rule becomes operative, the task or
tasks required to be performed on the holiday must be work
which is normally totally performed by the regularly assigned
employe. If May 26, 1975 had not been a holiday, a supervisor,
by Employes' own admission, could have transported train crews
without violating any rule in the Agreement. Claimant never
performed all of the transporting necessary on any day of his
regular assigned work week. He, as well as others, daily
transported train crews. That being so, it follows that
Claimant could not have complained; he would have had no basis
for a claim."
Award 67, Public Law Board 2668 states:
,,.:v'.i_.
CMs' Dissent to Award 26318
Page 4
"At about 9:00 A.M. on April 17, 1981, the Yellow Cab
Company was called to transport a Sandusky District Crew to the
Four Keys Motel. The Organization contends that Carrier
violated the Agreement when it blanked Claimant's job and
called the Cab Company to transport a crew (work normally
performed by Claimant). Carrier contends that the work of
hauling crews at Portsmouth, as well as at all other locations
on the railroad, is shared work that is not nor has ever been
performed exclusively by Clerks. It contends that the work of
hauling crews has been done by Supervisors, other crafts, and
by taxis. It argues that it is shared work and, as such,
cannot be exclusively claimed by Clerks.
"A review of the record of this case reveals that the
Organization has not demonstrated that the work of crew hauling
belongs exclusively to clerks at Portsmouth nor has it
demonstrated that crew hauling is totally performed by Claimant
when he is regularly assigned. It is clear from the record
that crews have been transported by Clerks, by Supervisors, and
by taxis at Portsmouth for an extended period of time prior to
the claim date.
"Petitioner in this instance has not supported its position
that a violation of Rule 34 (d) has taken place. This Board
has been presented with numerous awards by the parties in
support of their respective positions in this case. Given the
thrust of the organization's claim (a violation of Rule 34
(d)), however, we conclude that Awards 97 and 98 of Public Law
Board No. 1790 are the pertinent awards and are on point in
this instance. Those awards denied the Petitioner's claims.
We see no reason in this instance to overturn those awards."
Award 26318 is in error and serves to exact a penalty from the Carrier
which is not supported by the agreement or based upon precedent of this Board.
Because of the gross error of the Majority's findings, the Awara should be
treated as an aberration and, therefore, fully lacking precedent value.
J E. Yost M. C. Lesnik
i
RPI 0-
M. P. V. Va~
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.-Finfe
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JL 27 1147
UL 27 1197
R. L. Hicks
otilce.