Form 1 NATIONAL RAILROAD ADJUSTMENT BOAR/'
THIRD DIVISION
Award No. 32028
Docket No. CL-32646
97-3-95-3-570
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (AMTRAK)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Organization (GL-11183) that:
(a) The Carrier violated the Amtrak - Northeast Corridor Clerks' Rules
Agreement, particularly the Scope Rule, Rule 3-C-2, paragraph A, Section
1 and 2, and others, when the Carrier abolished Claimant Ale:'s position
of
janitor in the M and W Building, Symbol WIJ102, rate
of
pay =
511.45/hr. effective 1/15/93 and then assigned duties
of
that position
effective 2/3/93 to a non-agreement supervisor, Mr. Pete Adamovich, on
a continual basis. Duties include cleaning all offices located at the
M of W
base (which includes adequate maintenance of lavatories and locker rooms)
and B&B Department. Person in the position must also be qualified to
operate mechanical cleaning equipment.
(b) Claimant Alex should now be allowed eight (8) hours pay at the prorate of 511.45/hour per day co
each and every work day thereafter until this violation is corrected.
(c) In order to terminate this claim, said clerical work must be returned
to the employes covered by the Clerks' Agreement.
(d) This claim has been presented In accordance with Rule 7-B-1 and
should be allowed."
Form I Award No. 32028
Page 2 Docket No. CL-32646
97-3-95-3-570
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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.
At the time this dispute arose, Claimant was employed as a Janitor at Carrier's
Wilmington. Delaware, Mechanical Facility. On January 15, 1993, Claimant's Janitor
position WIJ102 and other cleaner positions were abolished. On February 3, 1993,
Maintenance
of
Way employees were instructed to clean their respective work areas.
By letter
of
February 16, 1993, the Organization filed a claim alleging that Carrier had
violated the Scope Rule, Rule 3-C-2, and others when it abolished Claimant's position
and subsequently assigned the work to employees not covered by the Agreement That
claim was denied and subsequently progressed in the usual manner, up to and including
Carrier's highest officer. Following conference on the property the matter remains in
dispute.
The rules cited by the Organization read in pertinent part as follows:
"RULE1-SCOPE
(a) These rules shall govern the hours, compensation and working
conditions
of
all employees engaged in the work of the crafts or classes of
(1) clerical, office, station and storehouse employees; and (2) station,
service employees, subject to the exceptions listed herein.
~V h k
This definition also includes stockmen, shippers and receivers, tallymeu,
Form 1 Award No. 32028
Page 3 Docket No. CL-32646
97-3-95-3-570
blue printers, baggage checkmen, parcel room attendants or checkers,
routemen, receiving and deliverymen, foreman and assistant foreman -
station or storehouse excluding shop labor foreman gang and gang leaders
who supervise shop laborers and storehouse laborers.
Other office, station and storehouse employees
of
the following
classifications:
Janitors
~~r
(d) When a reduction in force occurs which affects employees covered
by this Agreement, the remaining work shall be performed by employees
covered by this Agreement.
(e) It is not the intention
of
the Corporation to have supervisors
perform work which is within the scope
of
this agreement. However, it is
recognized that supervisors will occasionally perform such work, when
necessary, under critical and/or emergency conditions, while instructing
employees, and/or when incidental to their assigned duties. Supervisors
shall not be used to displace or replace employees regularly assigned to
perform the task, nor will the supervisors be used to negate the provisions
of the overtime rule
of
this Agreement.
RULE 3-('.-2 - ASSIGNMENT OF WOIZK_
(a) When a position covered by this agreement is abolished, the work
previously assigned to such position which remains to be performed will be
assigned in accordance with the following:
(1) To another position or other positions covered by this
Agreement when such other position or other positions remain in
Form I Award No. 32028
Page 4 Docket No. CL-32646
97-3-95-3-570
existence, at the location where the work of the abolished position
is being performed.
(2) In the event no position under this Agreement exists at the
location where the work of the abolished position or positions is to
be performed, then it may be performed by an Agent. Yard Master,
Foreman, or other supervisory employee, provided that less than
four (4) hours' work per day of the abolished positions or positions
remains to be performed; and further provided that such work is
incident to the duties
of
an Agent, Yard Master, Foreman or other
supervisory employee."
It is the position
of
the Organization that the duties assigned to the Janitor
position occupied by Claimant remained after the abolishment of the position. The
Organization asserts that the work in question was not "incidental" work, but
constituted a job requiring eight hours per day. Under the provisions
of
the Scope Rule
and Rule 3-C-2, the work remaining after the abolishment must be assigned to covered
employees. Further, the Organization maintains that they need not show "exclusivity"
of
performance of the work at issue. The work here at issue was reserved to employees
under the Agreement by custom and practice (Third Division Award 29262).
The Carrier contends that the Scope Rule was not violated. The work in question
was not performed exclusively by TCU employees either on a system-wide basis, or at
the VV'dmington facility by custom, tradition or practice. The Carrier maintains that it
is not unusual for Maintenance of Way employees to be required to clean up their own
work area, and that doing so was a normal part
of
their own job duties. In addition, the
Carrier asserts that the work in question is historically performed by non-TCU
employees and outside contractors across the Carrier's system. (Third Division Awards
21268; 19833, and Public Law Board No. 2792, Award 1).
A careful reading
of
the Scope Rule at issue indicates that it is general in nature.
It enumerates positions included in the Agreement - but does not specifically reserve
the work at issue herein to the employees covered by the Agreement. In a similar case
involving the same parties and the same Scope Rule, Public Law Board No. 4304,
Award 4 found:
Form 1 Award
No.
32028
Page 5 Dock,-t
No.
CL-32646
97-3-95-3-570
"... The language
of
the Scope Rule ...lists certain job classifications and
does not specifically reserve any duties
of
work exclusively to these
classifications ...."
Accordingly, as noted in Public Law Board
No.
2792, Award 1, in order to carry its
burden
of
persuasion, the Organization must show that:
"...1) the reservation
of
the work to (Janitors( by literal and unambiguous
contract language, or 2) the mutual intent or implicit understanding
of
the
parties to the Agreement that, notwithstanding contractual silence or
ambiguity, the work at issue should be reserved for [Janitors) covered by
the Agreement."
Absent clear language establishing the reservation
of
the work at issue to employees
covered by the Agreement, the Organization must present probative evidence that the
work at issue has been reserved by practice and tradition to the employees covered by
that Agreement. After a careful review
of
the record in this case, the Board finds that
the Organization has failed to meet its burden
of
persuasion in that regard.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 6th day
of
May 1997.
LABOR MEMBER'S DISSENT TO
AWARDS 32028, 32029, 32032,
DOCKETS CL-32646, CL-32655, CL-32728
(REFEREE E. C. WESMAN)
The Majority Opinion has erred and issued three awards which are
palpably erroneous depriving the Claimants of their contractual rights.
The Majority seemingly understood the facts and the parties' positions,
unfortunately it failed to address all of the issues. For example in the lead
decision Third Division Award 32028, (CL-32646) on pages three and four
it correctly recopied Rule 3-C-2 Assignment of Work and then set forth
TCU's position in the first full paragraph of page four regarding the rule as
follows:
"It is the position of the Organization that the duties assigned to the
Janitor position occupied by occupant remained after the abolishment of her
position. The Organization asserts that the work in question was not
'incidental' work, but constituted a job requiring eight hours per day. Under
the provisions of the Scope Rule and Rule 3-C-2, the work remaining after
the abolishment must be assigned to covered employees. Further, the
Organization maintains that they need not show 'exclusivity' of performance
of the work at issue. The work here at issue was reserved to employees
under the Agreement by custom and practice (Third Division Award 29262). "
It then proceeds on to suggest that the parties have a General Scope
Rule never again addressing Rule 3-C-2 therefore leaving the false inference
that the Scope Rule overrides.
Awards 32028, 32029, 32032
Dockets CL-32646, CL-32655, CL-32728
Page 2
Rule 3-C-2 stands alone it is-t dependent upon nor is it a corollary
to Rule 1. The subject claims should not have risen or fallen based solely
upon the Majority perception of the Scope Rule. They have fallen because
the Majority did_uot address Rule 3-C-2.
Rule 3-C-2 is explicitly clear. It requires that when clerical positions
are abolished the individual duties of each position will be distributed to other
clerical positions. There is
nQ
requirement to prove that the work exclusively
belongs to the craft nor does it matter whether the work might be shared
work. The Majority decision to ignore the arguments concerning Rule 3-C-2
and focalize only on Rule 1 has allowed it to render a decision which is
contrary to the better reasoning of Third Division Awards 13807, 22011,
29619 and 29692 to name just a few.
2
Awards 32028, 32029, 32032
Dockets CL-32646, CL-32655, CL-32728 '
Page 3
A reading of Majority opinions is like the telling of half a story. The
Majority simply walked away from Rule 3-C-2 and in doing so rendered an
incongruous decision of no redeeming value. Because of those errors I
strenuously Dissent.
Respectfully submitted,
William R. Miller
TCU Labor Member, NRAB
May 6, 1997
3
CARRIER MEMBERS' CONCURRING OPINION TO
THIRD DIVISION AWARDS 32023, 32029, AND 3=032
(REFEREE E. C. WESMAN)
The Carrier Members concur with the Majority's finding that the parties' general Scope
Rule and long-standing, extensive mixed practice-with substantial arbitral precedent recognizing
these elements-defeat the Organization's claims against other crafts performing cleaning duties
in these cases.
The Organization's assertion, in the Labor Member's Dissent to these Awards, that the
patties' Rule 3-C-2 stands apart and independent of the Scope Rule and therefore requited
distribution of the abolished Janitor position duties to other clerical positions at the Maintenance
of Way Shop, is erroneous. In accordance with classic tenets of labor contract construction and
interpretation (see Third Division Awards 3870 and 3842, among many others), contract rules are
not independent but must be considered in context with eo-related provisions from which their
meaning flows. Certainly, the Scope Rule frames the context of the labor contract, and cited Rule
3-C-2 cannot assume authority beyond that vested in the Scope Rule by language, practice, and
arbitral precedent.
Accordingly, the Carrier Members do wholeheartedly concur with the Majority's finding
in these cases, and do reject the Labor Member's dissenting assertions
Patricia A. Engle
Martin W. Fingerhut
Michael C. Lesnik
^t
~'`~.-,.
Paul V. Varga
June 10, 1997