Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28226
THIRD DIVISION Docket No. CL-27322
89-3-86-3-433
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10110) that:
1. Carrier violated the Clerks' Rules Agreement when it allowed
persons not covered by the Agreement to perform the work of delivering export
documents to the U. S. and Mexican Customs Offices on cars going into Mexico.
2. The following named employes of the Carrier covered by the
Clerks' Agreement shall be allowed eight (8) hours pay at $101.03 per day on
each of the days as outlined below:
(a) Clerk Joe Lara February 13, 14, 15, 16, 17, 21, 22,
23, 24, 27, 28, March 1, 2 and 15, 1984.
(b) Clerk P. A. Anderson March 14, 1984.
(c) Clerk R. Saldivar March 14, 1984."
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.
Claims were filed for the three Claimants requesting eight (8) hours
pay ($101.03) for various dates in February and March of 1984, because the
Carrier allegedly assigned an employee not covered under the Agreement to
deliver export documents to U.S. and Mexican Customs Offices.
The Organization contends that the work involved has traditionally
and historically been performed by employees covered by the Agreement until
the instant dispute arose.
Form 1 Award No. 28226
Page 2 Docket No. CL-27322
89-3-86-3-433
The Carrier responds that even though members of the Organization
have been used to make such deliveries in the past, it has also been the
practice for many years to assign such duties to Yardmasters, Assistant
Trainmasters, Carmen, and to other non-agreement personnel. The Carrier
argues that such work had not been specifically reserved to members of the
organization, either under the Agreement, or by past practice.
The record shows that clerical job bulletins have shown that one of
the duties of this craft is the delivery of customs forms. This information
on job bulletins, in itself, does not persuade the Board, however, that the
work in question is the exclusive purview of Clerks. The listing of information on a job bulletin is
of Public Law Board 3314 has underlined and with which this Board agrees.
That Award, issued to resolve a dispute between the same parties here at bar,
states the following:
"The Board finds that a Bulletin advertising a
job creates or establishes no legal obligations.
Its purpose is information rather than contractual. The offer and acceptance of a job
advertised in a bulletin is not the equivalent
of the offer and acceptance creating a legal
contract."
For the Organization to prevail, it must substantiate either that the
work in question is reserved by clear contractual language, or by a showing
that such duties have traditionally and historically been performed by members
of the Organization, exclusive of all others. During the handling of this
case on the property, the Carrier contended that others had also performed
this work for many years as noted above. This contention by the Carrier was
not challenged by the Organization during the handling of this case on the
property. The Board has no choice, but to accept the Carrier's version as
factual.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 4th day of December 1989.