Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28457
THIRD DIVISION Docket No. CL-28596
90-3-88-3-447
The Third Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10317) that:
1. Carrier violated and continues to violate Rule No. 1, among
others of the April 1, 1973 Master Clerical Agreement, as amended, when on May
8, 1987, it removed the duties and work of the Stockkeeper from the Scope of
the Master Agreement and permitted or required supervisory non-contract
employes (General Foreman and Gang Foreman) and employees of another craft
(Carmen) to perform the duties and work listed in the statement of facts,
duties and work that have been traditionally and historically performed by the
clerical employes covered by the Scope of the Master Clerical Agreement at
Columbus, Ohio.
2. Therefore, Carrier shall now be required to compensate the senior
idle clerical employe eight (8) hours at the punitive rate of $12.3971 per
hour (rate of Stockkeeper) to include any and all subsequent wage increases
for each day commencing May 8, 1987, and continuing each day thereafter until
the duties and work of the Stockkeeper are returned to the coverage of the
Master Clerical 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 were given due notice of hearing thereon.
The significant events leading to this claim began when the Carrier
abolished a position of Stockkeeper at Columbus, Ohio, effective on May 8,
1987. It announced at the same time that the remaining work of the Stockkeeper position would be ass
The basic thrust of the claim before the Board is the contention
that, rather than assign the remaining Stockkeeper work to the Lead Clerk, the
Carrier actually assigned it to supervisory employees and employees of the
Carmen craft.
Form 1 Award No. 28457
Page 2 Docket No. CL-28596
90-3-88-3-447
The Board notes that the Organization has introduced for the first
time material and arguments that were not presented on the property. As such,
these are inadmissable and will not be considered in our deliberations.
The parties, in pursuit of their respective positions, have established a lengthy record on the
turn, this has opened up various ramifications that actually, in some instances, are only marginally
the basic dispute. We have not discussed these matters because no useful
purpose would be served.
With respect to the essentials of this dispute, the Carrier has
advanced procedural arguments which mainly contend: (1) that the Organization
failed to meet its contractual time limit obligations and; (2) that the claim
lacked the essential elements and, thus, deprived the Carrier of its ability
to defend itself. We find the Organization's arguments it gave on the property more persuasive. Ther
merits.
While we understand the Carrier's position as reinforced by its
skilled advocacy before the Board, it cannot overcome the clear evidence
established on the property that shows that for a period of time, the duties
of the abolished Stockkeeper position were performed by other employees who
were not within the craft. This evidence shows (and here we mainly rely upon
the Carrier Supervisor's statements which are corroborated by the Lead Clerk
and the statements of others) that the essence of the abolished Stockkeeper
duties for the period May 8, 1987, to July 1, 1987, were performed by nonclerical personnel.
Accordingly, the next question is whether the Carrier has violated
the Scope Rule. The Scope Rule applicable here is Rule 1 of the April 1, 1973
Clerical Agreement, as amended. That Rule has been held to be a "Position and
Work" Scope Rule as contrasted to a General Scope Rule. It furthermore has
been held that the Rule protects the duties of the position, even though, as
in this case, some of the duties may include shared work.
In view of all of the foregoing, Part 1 of the claim is sustained;
Part 2 of the claim is sustained for the period of May 8, 1987 to July 1, 1987
at the pro rate rate.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. vjff - Executive Secretary
Dated at Chicago, Illinois, this 19th day of July 1990.
CARRIER MEMBERS' DISSENT
TO
AWARD 28457, DOCKET CL-28596
(Referee Muessig)
The decision of the Majority to sustain the Organization's claim for the
period May 8, 1987 to July 1, 1987, is based upon the erroneous conclusion
that the duties of the abolished stockkeeper position were performed by nonclerical personnel.
The record before the Hoard reveals that prior to abolishment of the
stockkeeper's position, Carrier found that duties of a clerical nature
performed primarily by the stockkeeper amounted to just over one (1) hour per
day, work of loading/unloading historically performed by other employees
together with the stockkeeper amounted to two to three hours per day, and the
remainder of the day consisted of work that was unnecessary and could be
eliminated.
Upon abolishment, the remaining clerical duties primarily performed by
the stockkeeper were distributed to the position of lead clerk, Mechanical
Department, the loading/unloading work was distributed to employees such as
laborers and car repairmen in other departments and the remaining unnecessary
work was eliminated.
The claim which was the heart of the dispute in this case quite simply
alleged that all prior work of the stockkeeper position was being performed
by other than clerks in violation of the Scope Rule.
The Award makes a distinction between the period of time before and
after July 1, 1987. During the period May 8, 1987 until July 1, 1987, a
supervisor in the Mechanical Department instructed and assisted the lead
clerk in learning the clerical duties previously performed primarily by the
former stockkeeper position. A clerk performed those duties both before
CMs' Dissent to Award 28457
Page 2
(stockkeeper) and after (lead clerk) May 8. The only difference involved in
the period after may 8 was that the clerk to whom the duties were assigned
was being trained by a supervisor. The "clear evidence established on the
property" which was referred to by the Majority in the sustaining portion of
Award 28457 is found in both parties' exhibits and reads:
During the approximately two month period following May 8,
1987, Gang Foreman Wynn worked with Lead Clerk Honaker,
assisting him in learning the ordering and receipting of
material.
Additionally, the statement from Lead Clerk Honaker dated March 2, 1988,
indicated he disagreed with signed statements of other clerks that
supervisors and employees of other crafts were performing "stockkeeper
duties."
Clearly, the Majority in reviewing the facts failed to recognize the
training period for what it was. In sustaining the claim for that two month
period, the Majority has ignored the fact that an employee covered by the
Agreement was assigned the duties in question and was performing same while
being trained. In fact, the only significance of July 1, 1987 as it relates
to the facts of this claim is that a supervisor discontinued training the
lead clerk on that date. Nothing else changed. The lead clerk continued
in primarily performing the clerical duties of preparation of paper work to
support the ordering/receipting of certain material, while employees in other
crafts continued the loading/unloading and handling of material and the
unnecessary activities remained eliminated.
It is clear that the sustained payment for the period May 8 to July 1
was based on a narrow misconception that a supervisor was exclusively
CMs' Dissent to Award 28457
Page 3
performing clerical duties instead of training the lead clerk. More
importantly though, the performance by others of the remaining work after
July 1, which had always been performed to some degree by others, was not
found to be a violation of the Scope Rule. The Majority was therefore
consistent with previous Awards in dealing with application of the Scope Rule
on this property in that it only sustained the claim for that portion of the
work it perceived to have been exclusively performed by the Supervisor. It
confirmed that shared work of a position may be performed by others without
violation of the Agreement.
For the reasons set forth above, we vigorously dissent to the sustaining
portion of Third Division Award 28457.
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