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.
The Organization filed the above claim on October 22, 2000. In that claim, and in support of its position, the Organization contended that:
In its November 30, 2000 denial of the claim, the Carrier maintained that by custom and practice "many different parties" had transported crews, and that the predominant method since 1985 had been to hire "outside service." The Carrier later provided supporting documents in the form of vouchers and an outside contractor's bid statement. The Carrier did not concur that the work at issue - transporting crews - was reserved to the clerical craft. Rather, it argued, the Ore Sorter bulletin states, "transports crews as needed and any other duties as may be required."
That denial was appealed on December 14, 2000. In its appeal, the Organization reiterated the language of Rule 1(c) in which the Agreement provides that:
In that appeal, the Organization also noted that the Carrier admitted that the work at issue had been assigned to Clerks, and that the fact that it may have been on an occasional basis did not abrogate the Carrier's obligation to continue to assign Form 1 Award No. 37759
it to Clerks. The Organization also protested the Carrier's statement that the vast majority of the transport duties in question had been performed by others not party to the Clerical Agreement.
The Carrier denied the Organization's appeal on February 9, 2001. In that denial, the Carrier contended that, absent a showing of exclusivity, the Organization could not now claim that the work at issue was reserved to TCU-represented employees. Moreover, the Carrier insisted that Ore Sorters continue to do occasional crew hauling on an as needed basis. Thus the Carrier emphasized its position that the work of crew hauling has by custom and practice been shared among both clerical and non-clerical employees.
In rebuttal to the Carrier's denial, the Organization noted that the Ore Sorter positions bulletined prior to January 2001 included the phrase "transports train crews as needed (all rail crews to and from interchange yards) . . . ." It pointed out that in January 2001 (after the filing of this claim) the Carrier removed that phrase from the job bulletin. The Organization argued that the Carrier's unilateral removal of job duties from the position description did not legitimately remove those duties from the scope coverage of Rule 1.
On February 28, 2002, in response to the Organization's appeal of its December 6, 2001 denial of the present claim, the Carrier offered to arrange a "joint check" of available Carrier records in order to clarify the situation at the heart of the current dispute. The Organization accepted the Carrier's offer, and explained that it believed that a joint check would involve a joint review of "any records that may have any relevance in the dispute such as randomly selected dates of crew van logs for both clerical and non-clerical employees at [Proctor, Minnesota]." In subsequent correspondence, the Carrier provided the Organization with various van logs covering scattered dates in February and June 2002. The parties reached no agreement on the matter, except to concur that the logs so provided neither strengthened nor weakened the Organization's case.
The Board reviewed the record carefully, including the extensive correspondence and exchange of supporting documents on the property. We are in accord with the finding of Award 1 of Public Law Board No. 3085 regarding the interpretation of Rule 1 (c) on the Burlington Northern which states: Form 1 Award No. 37759
In the present case, unrebutted evidence on the record confirms that, at least prior to January 2001, the description of the Ore Sorter position assigned to the Ore Sorters transporting of "all rail crews to and from interchange yards" and other train crews as needed. Therefore, that is work that by right remains the work of TCU-represented employees and cannot be removed from them except by Agreement.
That said, however, the Board notes that the initial joint check of the Carrier's van logs did not appear to confirm (or disprove) the Organization's allegations in this claim. Nevertheless, the Organization asserted that a subsequent joint check of the van logs supplied by the Carrier in August 2002 appears to confirm that "on 124 occasions" the hauling performed was of crews to and from the locations involved in the present dispute. However, the record is devoid of evidence concerning the time involved in making those trips, and it is not entirely clear that these trips involved all rail crews.
The Board finds that the Parties should review the joint check and, where possible, determine which trips involved all rail crews. As set forth above, those trips remain the work of the Ore Sorter position. We note that there is no evidence on the record to support the magnitude of the damages claimed. In Third Division Award 32180, the Board ffound that, in the absence of the precise amount of work involved, "two hours per shift at the pro rata rate" was a reasonable measure of losses sustained by the Organization. The Board concurs with that finding. The amount of the claim paid will be entirely dependent upon the determination by a joint check of the available van logs, but shall be no more than two hours per shift at the pro rata rate for each shift on which the violation occurred. Form 1 Award No. 37759
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.