Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35556
Docket No. MS-35392
01-3-99-3-273
The Third Division consisted of the regular members and in addition Referee
Donald W. Cohen when award was rendered.
(William J. Halstead
PARTIES TO DISPUTE:
(New Jersey Transit Rail Operations, Inc.
STATEMENT OF CLAIM:
"Claim (A) - August 29, 1997:
(a) The Carrierviolated the New Jersey Transit Clerks Rules Agreement,
particularly Rules 1, 19(1), or 19(g), 25, 28, 31 and other rules when it
assigned the responsibility of notifying B of LE Engineers of no longer
being medically qualified to perform service if they did not turn in
their completed medical forms before 1201AM, Monday, September
1, 1997 (see attached SCAT messages), a function long-established as
managerial, to Crew Caller William J. Halstead during his tourofduty
on Friday, August 29, 1997.
(1) It has been long-established that, the use of agreement
employees to monitor agreement employees in their compliance
with state and federal laws has been deemed as an unacceptable
practice, and in fact, New Jersey Transit Rail Operations, Inc's
Time Table, General Special Instructions C-2 and C-4 Clearly
define the monitoring of this issue as a Managerial function
and a compliance with state and federal law, without notice at
all.
(2) However, should the management of the Carrier wish to shirk
its responsibility in such matters, then we have to ask that these
responsibilities be added to the Crew Callers' positions in
accordance with the applicable Rules (28 and 31) of our
Agreement with the Carrier.
Form 1 Award No. 35556
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01-3-99-3-273
(b) The Organization is of the opinion that, the duties performed by Mr.
Halstead on August 29, 1997 were not a normal part of his job
description, and therefore, the performance of such duties were in
violation of the current Rules Agreement.
(c) The Organization now requests that claimant, William J. Halstead, be
compensated an additional 8hrs pay at the overtime rate of 28.46 per
hour for August 29, 1997, for the performance of duties outside the
scope of his position.
(d) This claim is presented in accordance with Rule 41 of the Agreement
between the parties and should be allowed.
Claim (B) - September 3, 1997
(a) The Carrier violated the New Jersey Transit Clerks Rules Agreement,
particularly Rules 1, 19(F), or 19(g), 25, 28, 31 and other rules when
it assigned the responsibility of notifying a B of LE Engineer of no
longer being medically qualified to perform service if he did not have
his hearing checked by the end of tour of duty Friday, September 5,
1997, (see attached SCAT messages), a function long-established as a
managerial, Crew Caller William J. Halstead, during his tour of duty
on Wednesday, September 3, 1997.
(1) it has long-established that, the use of agreement employees to
monitor agreement employees and their compliance with state
and federal laws has been deemed as an unacceptable practice,
and in fact, New Jersey Transit Rail Operations, Inc's Time
Table, General Special Instructions C-2 the C-4 clearly define
the monitoring of this issue as a Managerial function and a
compliance with state and federal law, without notice at all.
(2) However, should the management of the Carrier wish to shirk
its responsibility in such matters, then we have to ask that these
responsibilities be added to the Crew Callers' positions in
accordance with the applicable Rules (28 and 31) of our
Agreement with the Carrier.
Form 1 Award No. 35556
Page 3 Docket No. MS-35392
01-3-99-3-273
(b) The Organization is of the opinion that, the duties performed by Mr.
Halstead on September 3, 1997 were not a normal part of his job
description and therefore the performance of such duties were in
violation of the current rules agreement.
(c) The Organization now requests that claimant, William J. Halstead, be
compensated an additional 8 hours pay at the overtime rate of $28.46
per hour for September 3,1997, for the performance of duties outside
the scope of his position.
(d) This claim is presented in accordance with Rule 41
of
the Agreement
between the parties and should be allowed."
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.
Patties to said dispute were given due notice of hearing thereon.
Initially, the Carrier contended that the claim was not appealed to the Board in a
timely fashion. The Carrier subsequently dropped its contention that the claim is not
timely.
The neat issue to be determined is whether the response of the Carrier to the claim,
under the provisions of Rule 41 (a), complied with the requirements of the Rule. It is the
contention of the Claimant that the reasons offered by the Carrierwere insufficient under
the provisions of the Rule. The response of the Carrier was "we have carefully reviewed
this claim and we did not find any merit or rule support to substantiate this claim. Given
this lack of merit together with the lack of rule support and board interpretation we did not
find that we can uphold this claim. Therefore, this claim is denied."
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The rationale set forth in Third Division Awards 21132 and 26541 is persuasive. In
Award 21132 the Board stated: "We have considered carefully the detailed record and the
many Awards cited by the patties. The principles governing disposition of this claim have
been well-established therein. We find no merit in the Claimant's contention that the time
limit rule, Article V was violated by the following wording in the denial decision: `Your
claim is not supported by any rule, and, therefore, is declined in its entirety.' A myriad of
Awards in which we find no palpable error have upheld such a denial as sufficient and
proper." In the instant case the Carrier's response was more than adequate and the
timeliness issue raised by the Claimant is denied.
The primary issue to be determined is whether the Carrier violated the Rules cited
by the Claimant, when it instructed the Claimant to contact Locomotive Engineers and
notify them of the need to return completed medical forms to the Carrier. A careful
analysis of the record indicates that the decision-making process regarding the need to
contact the Engineers was solely that of the Carrier. There is no indication in the record
that the requirement placed upon the Claimant to make a phone call was anything other,
than a function incidental to his underlying duties. The Claimant failed to sustain his
burden of establishing any Rule violation and the claim is denied.
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 24th day of July, 2001.