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.
Initially, the Organization makes a technical argument that the Carrier's declinations of the claims were not proper denials. We disagree. The Carrier's denials of the claims met the requirements of Rule 38.
With respect to the merits, the governing Rule is Rule 1 Scope, particularly Rule 1.5:
The claims assert that strangers to the Agreement performed Clerical functions at Rumford, Rileys, and Waterville, Maine. In support of its position, the Organization submitted voluminous documentation consisting of forms and reports that it contends demonstrate that Non-Scope covered individuals performed Clerks' Scope covered work. Those Non-Scope covered individuals are Train Crews and Management.
The type of documentation submitted with the claim constitutes work falling under the Scope of the Clerical Agreement. There is no contention that the parties agreed to remove such work from the Scope of the Agreement. Therefore, under this positions or work Scope Rule, the type of work claimed is Clerks' work. Form 1 Award No. 34026
However, with respect to the Train Crews, as the matter progressed on the property the Carrier took the position that such functions were also performed by Train Crews under the Scope of their Agreement or under the concept of incidental work. The Organization never refuted that position and the evidence submitted concerning work performed by Train Crews fails to show that those individuals were not performing their own Scope covered work or work incidental thereto. With respect to the Train Crews' alleged performance of Clerks' Scope covered work, the claims will be denied.
With respect to Managers performing Clerks' work, there is ample documentation in this record that such work was indeed performed. For example, the record shows documentation of a Clerk taking a call on March 15, 1996, from Area Manager W. Rideout who was checking on some cars for a train stating that he was "playing Clerk and enjoying it." In this record there are hazardous material notices made out by Supervisors, including Rideout; train car lists made out by Rideout; and various other train lists prepared by Rideout and Trainmaster R. Coro. The record also contains a resolution between the Carrier and the UTU dated February 25, 1994 acknowledging that Area Manager Rideout "has performed de minimus amounts of contract work at Rumford . .. [and] the parties have also agreed that in the best interest of all concerned, this practice should stop." The extent of the documented performance of Clerks' work by supervision and the prior admonishment to Area Manager Rideout that he is not to perform work of other employees shows that the message that Rideout was not to perform contract covered work did not get through. The ample documentation in the record supports the Organization's position that management improperly performed Scope covered work. In that context, the Organization carried its burden to demonstrate a contract violation.
The Carrier's argument that the Organization did not sufficiently explain the dispute on the property is not persuasive. The Organization took the position that Scope covered work was being performed by strangers to the Agreement and then proceeded to document in great detail the violations - particularly those committed by Rideout and Coro. The Carrier was well put on notice-indeed, by its own documents-what the nature of the dispute was about and was given the detailed facts supporting the Organization's position.
With respect to the remedy, the Organization seeks compensation in the amount of eight hours at the straight time rate commencing January 2, 1996 and continuing. That complete request is modified because the Organization did not demonstrate that Form 1 Award No. 34026
Train Crews improperly performed Scope covered work and to award the requested relief may well include relief for allegations not proven. The function of a remedy for a demonstrated contract violation is to restore the status quo and to make whole those individuals who were adversely affected by the violation. The record shows that Scope covered workwas improperly performed by members of management. The remedy shall be for the parties to ascertain how much time was involved in the performance of such work and for the Carrier to make whole the affected employees for those specific amounts of time at the appropriate straight time rate. The fact that the Claimant (or another Clerk who stood to perform the work) was working during the period covered by the claim does not preclude the awarding of affirmative monetary relief. The performance of Scope covered work by members of management took away work opportunities from the covered employees and those employees should be made whole for those lost work opportunities. The Board will retain jurisdiction over this matter in the event disputes arise concerning the extent of the monetary relief.
This Board, after consideration ofthe 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.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
In their efforts to agree upon a remedy, the parties reviewed voluminous documents, but remained at odds concerning the extent of relief required by the Award.
Upon consideration of the parties' positions on the remedy; the difficulty in determining precisely the amount of work covered by the remedy; taking into account our discretion for the formulation of remedies; and in order ". . . to make whole the affected employees for those specific amounts of time ..:', we find that where members of management improperly performed Clerks' work the Carrier shall be required to compensate the affected Clerk one hour's pay at the applicable straight time rate for each actual demonstrated violation. The parties should meet to review Carrier records to determine the applicable number of hours due the Claimants.
The Carrier also assured the Organization and the Board that the violations have stopped and that members of management are no longer performing the work which was in dispute. According to the Carrier in its Submission in this matter, ". . . we have instructed all supervisors to refrain from performing scope work" and ". . . we . . . sought the supervisors assurance that similar violations would not occur." We accept the Carrier's representation. However, we are mindful of the severity of the underlying demonstrated violations. See the Award where we found:
In light of the above findings and the Carrier's assurance to the Organization and the Board that the conduct has now ceased - an assurance which has now been given several times - similar demonstrated violations not paid by the Carrier upon the presentation of a claim will be remedied by the Board in a much more severe fashion than we have in this Interpretation.
Referee Edwin H. Benn who sat with the Board as a neutral member when Award 34026 was adopted, also participated with the Board in making this Interpretation.