Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28429
THIRD DIVISION Docket No. CL-27407
90-3-87-3-48
The Third Division consisted of the regular members and in
addition Referee Edwin H. Benn when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10155) that:
1. Carrier violated the Agreement between the parties when on
February 19, 1986, Carrier caused, required or permitted an employe not of the
clerical craft and class to perform work performed by employes covered by the
effective Agreement when the Section Foreman John Olson recalled furloughed
Section Laborers William Lassi and Ronald Kubis to return to work for snow
removal.
2. Carrier shall, as a result of such violative action, compensate
Chief Clerk, Track Department, John Walczynski two (2) hours pay at the time
and one-half rate of pay as a result of the above-mentioned violation of the
Agreement."
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.
The on-property handling shows that Claimant is the Chief Clerk in
the Carrier's Track Department. On February 19, 1986, at 5:00 A.M., the Section Foreman called furlo
removal duties. Claimant states that he has worked in the Roadmaster's office
for 35 years and that although Section Foremen and other Supervisors have traditionally recalled the
after hours and with the further exception that in isolated instances Supervisors may have recalled
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and machine operators to perform special emergency duties, the position of
Chief Clerk has been the one that solely recalled furloughed employees. The
Carrier does not deny that Claimant and other clerical employees recall employees from time to time
response to an emergency and that for many years emergency calls have been
made by other than clerical employees. The Carrier further asserted that
calling personnel to work was not the exclusive work of the clerical group and
whether or not the personnel being recalled were furloughed or not was irrelevant. The Carrier also
Foremen have made the kinds of calls at issue as work incidental to their
duties.
This case is resolved upon an assessment of whether the requisite
burden of proof has been met which requires a careful reading of the Organization's definition of th
specific evidence presented during the on-property handling of the Claim. The
Organization seeks to limit the work at issue to the calling of furloughed as
opposed to regular employees. In that regard, the Organization claims that,
with the exception of skilled employees not involved in this case, the calling
of such furloughed employees has been the work of the Chief Clerk for 35
years. But in its August 28, 1986, declination, the Carrier states the following:
"Our review of the Missabe's historical practice
of calling employees reveals that such calls
have not been made solely by employees repre
sented by BRAC. Track supervisors and foremen
have made those calls as a matter of practice
over the years as work incidental to their
duties as supervisors and foremen. This has
been most apparent in cases like the instant
claim where furloughed employees were needed on
short notice for snow removal work. We recog
nize that it is not unusual for BRAC-represented
clerks to call furloughed employees when suffi
cient advance notice is available. However,
because weather conditions can make such advance
notice impossible, supervisors and foremen have
indeed recalled employees directly." (Emphasis
in original and added.]
Thus, the Organization states that the limited work of calling furloughed as opposed to regular
years. The Carrier, on the other hand, states that the calling of such
furloughed employees did not belong to the Chief Clerk, but was performed in
emergency situations by Supervisors and Foremen in addition to the Chief
Clerk. Notwithstanding the positions and/or work nature of the Scope Rule
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with the Organization's freeze frame analysis, the burden still remains with
the Organization to show that the claimed work belonged to it. Specifically,
in this case, the Organization was required to show that the specific work at
issue on February 19, 1986, was that of the Chief Clerk. Given the specific
statement of the Carrier quoted above that this kind of emergency work was
shared and given that the organization's response only states the opposite and
does not sufficiently demonstrate evidence that the specific work performed on
that date indeed was the Chief Clerk's and was not the type performed by
strangers to the Agreement, we cannot say that the Organization has met its
burden in this case.
The Awards relied upon by the Organization are not directly on
point. In those cases, the Organization was able to meet its burden and demonstrate that the work at
work from clerical employees to Carmen. As the Board found:
"The work of AAR car billing is in evidence and
not disputed as work which was formally done by
clerical employees. As such, it is their work
and may be eliminated, but not continued in part
or whole, directly or indirectly by others foreign to the Agreement who have not previously
performed the work. There is no evidence in the
record that carmen have ever performed such
work." [Emphasis added.]
Here, the record establishes that in the past other than clerical employees
have called furloughed employees for work. Similarly, in Third Division Award
26507, the Carrier therein eliminated the mobile agent position but, from time
to time, conductors would enter the station and copy their own train orders
directly from the dispatcher, which work was previously performed by a clerical employee. Recognizin
exclusivity under a position and/or work Scope Rule, the Board held that the
Scope Rule was violated "when the Carrier allowed train order work that had
previously been assigned under the A:reement to be performed by individuals
not covered by the Agreement." That kind of showing is missing in this
matter. Likewise, in Third Division Award 26452, there was no dispute "that
the work at issue is handled by Storehouse employes when they are on duty."
Finally, in Third Division Award 25934, the involved "Micromation Memorandum
defined the work of operating micromation equipment and the record established
that covered employees were exclusively performing it as of the effective date
of the 1979 amendment... [and] 'The Organization must demonstrate unilateral
removal and assignment to strangers to the contract of a significant portion
of that work which actually was performed as of [the effective date of the
rule] by positions listed.'" [Emphasis added.] Again, that kind of evidence
is absent in this case.
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Based on the above, we must therefore deny the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
'~Z'
Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 21st day of June 1990.