Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29463
THIRD DIVISION Docket No. CL-29810
92-3-91-3-315
The Third Division consisted of the regular members and in
addition Referee Hugh G. Duffy when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10599) that:
1. Carrier violated the effective agreement when it failed to fill a
vacancy on Position 4006, Clerk-Steno, while continuing to have the duties of
said position performed by employes not covered thereby;
2. Carrier shall now compensate Chief Service Clerk R. A. Presutti
and additional eight (l3) hours' pay for each and every day, beginning sixty
(60) days retroactive to October 26, 1987, and continuing thereafter for as
long as a like violation Occurs." '
FINDINGS:
The Third Dtvislon of t'ie Adjustment Board ipon the whole r-':orJ
and all the evidence, flnly that:
The carrier )r :ArrLers and the employe or employes involved in tnit
dispute are respectively cerrLer and employes within the meaning of the
Railway Labor Act is ipproved June 21, 1934.
This Division .)f the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
This is a Scope Rule claim in which the Organization alleges that the
Carrier removed work perf.irmed by ,members of the clerical craft and reisslgned
it to officers and other employees not covered by the Agreement.
As a prellninary natter, the Carrier contends that the claim should
be denied on the drouiii that no conference was held between the parties on
the property, as r?quir~i by Section 152, Second of the Railway Labor Act.
The Organization Li :ts Submission to the Board states that the required
conference was hell. Since there is nothing in the record developed on the
property which would illow the Board to resolve this factual dispute, we
accept the Organlzitl)n's statement that the conference was held.
Form 1 Award No. 29463
Page 3 Docket No. CL-29810
92-3-91-3-315
We find the Organization's argument persuasive that Third Division
Award 29093 (McAllister), involving a similar issue between the parties, Is
directly on point and is controlling precedent in this matter. There the
Board held:
"Based upon the record before the Board, we find
the Scope Rule In this case to be a 'position and
work' Rule, as argued by the Organization. As such,
when work is added to a position, as was the case
herein, it may not be removed from that position and
transferred to an employee outside the scope of the
Agreement without mutual concurrence. Our review of
Rule 7(b) indicates the Claimant's position is exempt
from the bulletin and placement rules. It says nothing about the type of work which may be performed
the incumbe,it, .)f such positions. If the Carrier
chooses t) take advantage of the skills of the incumbent by having him perform duties otherwise perf
duties will accrete to the position."
We thus find that the Carrier vAolated the Agreement when it reassigned the payroll iAnctton to the
showing aas nade that 'ir ,uffered any loss of earnin.·,. Accordingly, fo11 wing numerous pre
A '.J A R D
Claim suit.ali-d !.i .ic.:ordance with the Findings.
NATIONAL RAILROAD ADJUSTNHNT BOARD
By Order of Third Division
Attest:
cy J.
DeW
- Executive Secretary
Dated at Chicago, tilinotr, this 7th day of December 1992
CARRIER MEMBERS' CONCURRENCE AND DISSENT
TO
AWARD 29463, DOCKET CL-29810
(Referee Duffy)
The last on-property correspondence provided this Board was
the Carrier's February 24, 1988 letter denying the claim. The
Organization filed Notice with this Board on May 21, 1991. In its
Submission to this Board the Carrier pointed out:
"...the appropriate conference was not held as is
required by the Railway Labor Act as amended, and of
Circular No. 1 of the National Railroad Adjustment
Board."
In view of the fact that the Organization had not sought a
conference at any time between February 1988 and May 1991 and the
organization's certification in their Submission that all data had
been submitted to the Carrier substantiates, by its absence, that
no conference was sought or held. Such made the Organization's
claim to this Board defective and it should have been dismissed
without addressing the merits.
Third Division Award 28617
"The record of this case indicates that no
conference relative to this Claim was held on the
property prior to its submission to the Board.
Accordingly, we have no alternative but to dismiss the
Claim."
See also recent Third Division Awards 27912, 27816, 27586, 27482,
26867, 24628 and 24141.
Concerning the preparation of the payroll, the record
substantiates that such had been done by the officer Manager; that
only recently did Claimant do this; that when Claimant left the
position this detail reverted back to the office Manager and that
this "function" took 30 minutes/mo. The record also substantiates
that this work never became regularly assigned to clerk's Position
008. Nevertheless, the Majority relies on the errant Award 29093
that such duties automatically "accrete to the position." Award
29093 was strongly dissented to both on procedural and substantive
grounds and it is included herewith.
Preparing the payroll was NEVER a regularly assigned duty of
Position 008. Even the errant process of accretion takes some time
to effect its growth. The Organization asserted that such work
including the payroll was being performed by officials on a dail
basis. This decision rightly found that the clerical work
continued to be performed by "the clerical craft" and the payroll
comprised only .0038 (160 hours divided by 30 minutes) of the time
employed during the month. Further, absent a showing of loss,
Claimant was not entitled to any compensation.
P. V. VARGA M. W. FINGERHUT
. L. HICKS M. C. LESNIK
. E. YOST