Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26814
THIRD DIVISION Docket No. CL-25651
88-3
The Third Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Bessemer and Lake Erie Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-9845) that:
1. Carrier violated the effective Clerks' Agreement when, on June
19, 22, 26, August 5 and 16, 1982, it required and/or permitted employes not
covered by such Agreement to perform work at North Bessemer, PA. reserved to
employes covered thereby;
2. Carrier shall now compensate the senior available unassigned
employe eight (8) hours' pay at the pro rata rate of Clerk North Bessemer
(XB Tower) and for all mileage and living allowances provided for by Agreement
for each of the above dates."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
This case is the consolidation of claims covering five dates in 1982
when the Carrier allegedly assigned work covered by Rule 1 (Scope) to train
service employees.
Prior to June 19, 1982, the Carrier maintained a seven day a week,
around the clock Clerk-Operator XB Tower position at North Bessemer Yard, a
facility jointly operated by the Carrier and the Union Railroad Company. On
June 19, 1982, the Carrier eliminated the second trick Clerk-Operator assignment and rearranged the
Form 1 Award No. 26814
Page 2 Docket No. CL-25651
88-3
XB Tower. The Organization alleged that when the tower was not manned with an
employee covered by the Agreement, the Carrier allowed strangers to the Agreement to clear signals,
outbound Carrier and Union Railroad trains.
The issue presented to this Board is whether or not the disputed work
was reserved to the XB Tower Clerk-Operator position pursuant to Rule 1. The
portion of Rule 1 most pertinent to this dispute is Rule 1(d) which reads:
"Positions or work coming within the scope of
this agreement belong to the employees covered
thereby and nothing in this agreement shall be
construed to permit the removal of positions or
work from the application of these rules, except
by agreement between the parties signatory hereto; except that management, appointive or
excepted positions, or other positions not
covered by this agreement may be assigned to
perform any work which is incident to their
regular duties."
We recently addressed a similar Scope Rule controversy involving
the XB Tower clerical position. In Third Division Award No. 24056, we found
insufficient evidence to definitively interpret this intricate Scope Rule.
Like the case decided in Award No. 24056, the organization has failed to
proffer sufficient, probative evidence that the work in question is covered by
the Agreement even if this Board assumes that Rule 1 is a positions and work
scope provision. On the other hand, the Carrier has affirmatively demonstrated that the disputed wor
of the Chief Train Dispatcher (clearing signals) and the train crews (handling
switches and derails). The work in question occurred so infrequently and consumed so little time tha
the work, which was clearly related to their primary duties, in accord with
the express exception contained in the final clause of Rule 1(d).
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. D - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1988.