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.
On two occasions, March 7 and March 14, 1993, the on-duty Carrier Supervisor of Operations, an individual not assigned under the provisions of the Train Dispatcher Agreement, ordered an extra train crew to report to the Boston Engine Terminal. Normally the ordering of train crews is performed by the appropriate Assistant Chief Train Dispatcher. The Organization filed a claim contending that the activity of ordering train crews is work reserved to Chief Train Dispatchers by its Scope Rule. Carrier argued that the Organization's Scope Rule does not reserve this work exclusively to Dispatchers and also that the task involved in the claim was de minimus.
In this record it is manifestly clear that the activity of ordering a train crew, as performed by the Supervisor of Operations on March 7 and March 14, 1993, is work that is normally, customarily, and routinely performed by Assistant Chief Train Dispatchers working under the Agreement. Supervisors are not privileged to take it upon themselves to perform tasks of Assistant Chief Train Dispatchers, even if it is of Form 1 Award No. 32379
a de minimus nature and was merely a response to a situation that needed immediate attention. The Agreement was violated. The claims will be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
CARRIER MEMBERS' DISSENT
TO
THIRD DIVISION AWARD 32379, DOCKET TD-31998
(Referee Fletcher)
We dissent to this ill-founded and excessive Award. The Majority obviously chose to overlook the burden of proof required by the Petitioner, which it failed to shoulder on the property. The Scope Rule does not give an exclusive right to the Assistant Chief Dispatcher in the calling of crews, relief or otherwise. Nor does the Rule provide for an eight hour penalty payment. The fact of the matter is that the Assistant Chief Dispatcher does not call crews. As established in the record, since 1983 crews have been called by others including the Crew Management Service Clerks (represented by TCU) then headquartered in Philadelphia, Pennsvlvania. Since 1987, in the NIBTA service, crews have been called by local TCUrepresented Crew
Further, the Organization throughout its on-property handling, intermingled its references to the responsibility of those in the classifications of Train Dispatcher (a separate classification), Chief (a fully excepted management position), Assistant Chief Dispatcher, and Night Chief as if they were all one equal class, when the are clearly discrete and separate. The Scope Rule gives one definition for the Chief, Assistant Chief and Night Chief position. However, the Chief position by the language of the same Rule is an exempt position. It is contradictorv then to ascribe exclusive work to an agreement covered position of Assistant Chief when the clear unadulterated language of the Rule incorporates others. There is simply no evidence in the record before the Board that the work in question had ever been exclusively reserved to the Assistant Chief Dispatcher position.
The Board's decision in this case is palpably erroneous. We trust the Carrier will place no precedential value in the findings, which were obviously not made on the facts of the case.