Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35558
Docket No. MS-35605
01-3-99-3-540
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
STATEMENT OF CLAIM:
°°(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, J. A. Massero, to report to Maplewood Medical Services
at 2:15PM on Thursday, October 9, 1997, (see attached SCAT
message), a function long established as managerial, to Crew Caller
William J. Halstead during his tour of duty on Wednesday, July 30,
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. In this instant case, the only
conversation that should have taken employees is the
Message from Mr. J. Gee, advising that Mr. Massero
was not medically qualified to perform service. It is
our position in this manner that Mr. Gee or another
supervisor should have notified Mr. Massero to report
to Medical Services, not an agreement(Crew
Dispatcher) Employee.
Form 1 Award No. 35558
Page 2 Docket No. MS-35605
01-3-99-3-540
(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.
(b) The Organization is of the opinion that, the duties performed by
Mr. Halstead on October 8, 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 October 8, 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.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 35558
Page 3 Docket No. MS-35605
01-3-99-3-540
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 next 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 Carrier were
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."
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 parties. 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 notify Locomotive Engineer
J. A. Massero to report to Maplewood Medical Services. A careful analysis
of
the
record indicates that the decision-making process regarding the need to contact the
Engineer 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.
Form 1 Award No. 35558
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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.