Carrier Members' Dissent

to Third Division Award 32532: Docket CL-32976

(Referee Elizabeth C. Wesman)

"This dispute arose on May 23, 1995 when the Organization filed a claim protesting abolishment of Clerk/Steno Position No. 14 at Binghamton Yard, on the grounds that duties formerly performed by that job were being performed by individuals named in Attachment A to the claim. The claim was denied, and subsequently progressed in the usual manner. On October 6, 1995, the parties met to discuss the matter. At that time. Carrier Officers and the Organization were able to narrow the Scope of the duties being performed by non-agreement employees. Carrier officers also agreed to investigate the matter further, and report the results of that investigation to the Organization.

For reasons not clear on this record the Carrier failed to complete the investigation and/or report the results to the Organization. The Organization then progressed the matter to the Board. In the absence of a response from the Carrier to the Organization's proposed enumeration of the work being performed by the non-agreement personnel, the Board finds that the Organization met its burden of persuasion with respect to that aspect of the present issue. The Scope Rule is a "position and work" Scope Rule (Third Division Award 32180). Accordingly, work remaining following the abolishment of Position No. 14 should be redistributed among employees covered by the Agreement." (Emphasis added)

While the Majority may have reviewed the Organization's Submission from cover to cover, the :Majority apparently failed to review the Carrier's entire Submission. By letter dated April 8. 1996 (Carrier Exhibit "F") Assistant Vice President Labor Relations Cathryn S. Frankenberg advised General Chairman A. P. Santoro that the Carrier had completed its investigation and reported the results to the Organization. Subject letter reads as follows:

"Reference is made to your File: 77.0 (35) concerning the appeal of a claim on behalf of S. Tocyloski account the Organization claims the Company has assigned work of abolished Position No. 14 to various D&H Supervisors."

"The list of work that you have shown in your attachment `A' is not work that has been given to various D&H Supervisors. The work of the abolished position, Position No. 14, that is needed to be performed, is being performed by the clerical employees at Binghamton Yard. Approximately once a week a clerk is called from furlough to perform miscellaneous duties related to the operations at Binghamton Yard.

The list of Supervisors that you have shown in your attachment `B' are not performing any of the work you have identified in attachment `A.' In reviewing this list of duties with these employees they have advised that they are not doing this work. It is incumbent on the Organization to uphold their claim and not make general statements without specific support.

After further review of your attachment `A' it is the Carrier's position that items 1, 3, 16, 17, 18, 21 and 27, if and when done, are done by the spare clerk who is called in once a week. Items 2, 6, 14, 15, 20, 31, 32 and 34 are not done. Items 4, 5, 8, 9, 10, 12, 25, 26, and 28 are done by the clerical staff. Items 11, 13, 19, 22, 23, 24, 29, 30 and 33 have been done by both management and clerks and remains to be shared responsibilities. Item 35 is non-specific. Item 7 is being done by the manager using the key pad instead of pen and pencil. The clerical employees do not have exclusive rights to the use of the key pads and computer terminals.

The Carrier is not in violation of Rules 1, 4. 5, Appendix No. I and other rules of the September 26, 1990, Clerical Rules Agreement.

Accordingly, your appeal of this claim is respectfully denied."

The above-quoted letter was, in fact, the report that the Majority erroneously concluded the Carrier failed to provide to the Organization. The letter clearly addresses the narrowed list of items and would have. if reviewed, supported a decision in favor :the Carrier. As noted in the Award, the Majority based its decision entirely on this issue. Inasmuch Labor Member William R. Miller asserted during argument of this case before the Referee on August 19, 1997 that the Carrier's letter constituted new material which had not been given to the Organization, we remain puzzled as to why the Majority reached the conclusion it did. While it is true that the Organization put the Carrier on notice in its letter dated April 17, 1996 that it was still waiting for

the results of the Carrier's investigation, it should have been apparent to the Majority that the Carrier's April 8, 1996 letter and the Organization's April 17, 1996 letter most likely passed in the mail like ships in the night. Importantly, a handwritten note from Labor Relations Officer Roger Koch appears on the Carrier's copy of the Organization's April 17, 1996 letter (Carrier's Exhibit G). The note indicates that the Carrier mailed its April 8, 1996 letter on that date. It further indicates that a copy of the letter was given to Vice General Chairman Russell C. Oathout during conference on April 18, 1996. The Organization did not file its Notice of Intent with the Board until June 6. 1996.

It thus becomes crystal clear that the Organization partially prevailed in this case not because ". . . the Carrier failed to complete the investigation and/or report the results to the Organization..." but because the Carrier officer trusted the Vice General Chairman to forward theAQril 8, l996 letter to the General Chairman. The sad lesson to be learned here by the Carrier is that it must "talk with the pencil." Stated differently, when the Carrier received General Chairman Santoro's April 17. 1996 letter, it should have confirmed in writing its transmittal of a second copy of its April 8, 1996 letter directly to the General Chairman.

In our opinion, the Majority further compounded its error by stating:

"The Board concurs with the calculation of losses found in Award 32180. Thus. the Carrier shall pay the Claimant two hours pay per day at the pro rata rate from the date of the abolishment of Position No. 14, until the work is either returned to Clerical forces or the Parties reach some other reasonable accommodation."

The reasoning behind this arbitrary amount, as it pertains to the instant case, is perplexing, to say the least. Our review of Organization Exhibit "E-1", which the Organization identified as the document upon which the Claimant had made notes as to where she believed the claimed work had been distributed and is the "narrowed down list." reveals that the Claimant merely stated that she believed that five out of the 35 items listed (Items 4. 5, 22. 24 and 29) may have been performed by Managers. Of these five items. the Claimant admitted that three of them were being performed by Clerks and Managers. Further Item 22 is "Answer Telephone, and record message." Again. had the Majority reviewed Carrier's Exhibit "F" it would have been clear that these rive items were addressed in the Carrier's April 8, 1996 report to the Organization.

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