SCOPE AWARDS - EXCLUSIVITY (21)

Many awards have held that Yardmaster duties may not be assigned to employees outside the scope of the Yardmasters' Agreement. We will quote only a few: 

Matter of Arbitration Time Claim 870291 (Suntrup) Adopted November 9, 1988

"Decision and Award

"There can be no doubt that some of the supervisory duties done by the Yardmasters on the second and third shifts were shared with others. These others included Trainmasters and others named by the Carrier. There is insufficient evidence to warrant any firm conclusions about who these other employees might have been although there is evidence with respect to Trainmasters. The Organization effectively argues that others besides Yardmasters so seldom exercised such duties that they were the exclusive purview of its craft. Some of the evidence presented suggests that under certain circumstances employees such as Switchmen had never taken orders from Trainmasters at Browder prior to the abolishment of the Yardmaster position on the shift in question. The arbitrator has closely studied the evidence presented by the Carrier to the effect that Trainmasters had done the work jointly with Yardmasters. The evidence is less than persuasive that such had been done by Trainmasters prior to the abolishment of the positions in question except on what the Carrier office refers to as `rare occasions'. Such impression is not corrected by the Superintendent at Dallas who basicly (sic) relies on the statements of the Trainmasters themselves.

"Has the burden of exclusivity been met by the Organization in the instant case? In view of the fact that the exercise of these duties claimed by the Yardmasters were, at most, either hardly ever or idiosyncratically done by Trainmasters at Browder Yard prior to the abolishment of the positions in question the arbitrator must conclude that the weight of evidence reasonably supports the instant claim. It is not uncommon for Carriers to argue, and often with success, that work done by others do not infringe upon the Scope rights of a given craft since the amount of work falls under the de minimus principle (See, for example, Fourth Division 2122, 1486, 3186; PLB 3833, Award 1; PLB 3840, Award 5 inter alia). The instant case represents the other side of the coin. The Yardmasters claim the work is exclusively theirs. The Carrier argues that others have shared the work, thus the criteria of exclusivity has not been met. The evidence presented is that others have done the work, but by all standards only in a de minimus sense.

"The arbitrator feels it is appropriate to cite here, in this respect a number of arbitration Awards dealing with this issue. Fourth Division 3168 dealt with a situation somewhat comparable to the instant one, except that the Yardmasters argued that they should have been paid for an amount of work done by a Trainmaster which the Board, in that case, concluded was minimal. In denying the claim the Board concluded as follows:

"`...it is also well established that in order to prevail in cases such as the instant dispute the Organization must show that a substantial amount of the Yardmasters' responsibilities and duties were performed by employees outside the scope of the Yardmasters's (sic) Agreement.'

"In the instant case the Carrier is effectively arguing that the work is not necessarily Yardmasters' work even though the evidence points to only a minimal amount of the work in question had been performed by others than Yardmasters. An older arbitral conclusion coming from Fourth Division 406 is even more restrictive. It states:

"`...we are not required in every case to grant affirmative relief where it may be shown that a clerk, agent or other employee exercises some minor or incidental supervision over yard switching in connection with the discharge of their duties.'

"Likewise, there is no arbitral imperative to deny a claim for scope rights when the evidence shows that others who have shared the work complained of as being protected have done so only in a `minor or incidental' manner.

"Lastly, the Carrier argues that the amount of work itself which was done by others on the dates in question in this case was minimal and the same line of reasoning used above now is applied to this question. This is both an empirical and evidentiary question and it is a factual issue which has been addressed only opaquely in the record. Both the assumption (and conclusion) of the Organization when it presented its claims on November 14 and December 1, 1986 with attached exhibits was that the amount of work in question was worth one day's pay. It then enumerates evidence taken from radio transcriptions. At various appeal levels the General Chairman continues to offer documentation to the Carrier about alleged instances of scope violation on the dates in question, as well as other documentation about former duties of the Yardmasters at Browder prior to the abolishement (sic) of the second and third trick positions. In view of this quantity of materials presented to the Carrier it had responsiblity (sic) of affirmative defense. A search of the record fails to produce information which was forwarded to the Carrier officer in Omaha by local supervision which provided him with materials to develop such defense, except to state to the union that the relief requested was `grossly excessive' as he does in his August 5, 1987 letter to the Organization, for example.

"It is unclear to the arbitrator if the work complained of represented eight (8) hours' work for each day listed in the Statement of Claim. It is clear that the work was, according to arbitral standards, substantial. Absent additional information on this matter, the arbitrator must conclude that the relief requested by the Organization is not unreasonable. The arbitrator is also aware that this case and 870292 want to be used by the parties res judicata to settle other pending cases. This is possible, of course, assuming that there is agreement that the amount of work complained of on the dates in question for the latter claims is comparable to that which the arbitrator concludes is subject-matter for these two cases. Time will tell whether the parties are willing to accept such assumption.

"The Carrier officer correctly states that `attention is called to the fact that although (various) dates are listed, the claim is not continuous because (various dates after the abolishment of the positions) are conspicuously missing'. This is not a continuous claim, but one only for the dates cited in the Statement of Claim. More correctly, the claim is for certain dates during the changeover, as the Terminal Superintendent put it, of certain operations from Browder Yard to Fort Worth's Centennial Yard. In view of the limitation of relief requested, the Carrier officer states arguendo that if the claim would be sustained, no compensatory penalties are due the Carrier since the Claimant `suffered no loss of earnings'. In this respect the arbitrator is of the mind that the appropriate remedies, in the instant case, are those precedentially set by various Awards of the National Railroad Adjustment Board, including Awards 11701 and 12374 issued by this Board's Third Division. The Board has held, respectively, in those cases the following which is cited here with favor:

"`...It is not enough to recognize (a) breach without expecting the violator to accept the consequences... ...Carrier's position that the Claimant must show that he "was in some manner adversely affected by the action of the Carrier" ...is irrelevant and distracts attention from the real issue of the...violation of the Agreement. The argument that compensation to Claimant would be in the nature of a penalty is likewise extraneous, for it brushes aside the sanctity of the Agreement ...

............

A collective bargining (sic) agreement is a joint undertaking of the parties with duties and responsibilities mutually assumed. Where one of the parties violates that Agreement a remedy necessarily must follow...'

"Extra Yardmaster C. L. Miller shall be paid one day's pay each day for the dates of September 30; October 1, 4, 7, 8, 9, 11, 12, 13 and 20, 1986 because of violation of the Agreement by the Carrier. All compensation due the Claimant shall be paid to him within thirty (30) days of the date of this Award." (Emphasis ours)

Matter of Arbitration Time Claim 870292 (Suntrup) Adopted November 9, 1988

"Discussion and Findings

"Under normal circumstances the arbitral conclusion to this case would simply follow that of case 870291 under application of the principle of res judicata. 1/ The body of arbitral precedent dealing with this principle states that if the same issue, the same fact pattern, the same parties and the same contract provisions are at stake, and if there is a lead arbitration Decision dealing with the same, then ulterior arbitral forums are bound by the lead Decision to forstall (sic) endless re-arbitration of the same matter. All of this is true in the present instance except for one detail of no small importance. And this has to do with the de minimus issue as part of the `same fact pattern'. While the arbitrator need not repeat here the discussion of the de minimus principles and the arbitral precedent associated therewith, it is encumbent (sic) upon him in framing his conclusions in this case to determine the validity of the company's arguments with respect to the minimal amount of work allegedly done on the specific days enumerated in the Statement of Claim for second shift. It is particularly encumbent (sic) upon the arbitrator to arrive at conclusions based on evidence with respect to this question since the relief requested is not of a continuing nature, in either one of these cases before this arbitration committee, nor in any of the other claims filed at Browder Yard on this question of alleged scope violations.

"How much work was actually done by non-covered employees on second shift on the dates in question in this case? If it was of such minimal nature, even if the Yardmasters arguendo did have right to the work, there is considerable arbitral precedent to suggest that a claim of this nature could be denied on those grounds alone. The arbitration committee resolved this `empirical and evidentiary question', as the Award to case 870291 puts it (@2 pp. 15-6) by concluding that the amount of work done on third shift on the days in question in that case was substantial. Is the same true for this case, for the days in question, for the second shift? With each individual claim filed by the General Chairman under dates cited earlier there is included an evidentiary sheet prepared by `Switchmen...at Browder...as evidence of...claim'. The arbitrator has studied these sheets, as well as other documents of evidence submitted by the General Chairman as he progressed the claim to higher levels of management in accordance with ordinary practice. If the Carrier did not believe that the documentation presented supported the relief requested it had an evidentiary obligation of affirmative defense. The study of all details of the file to this case, as to case 870291 leads the arbitrator to the conclusion that local management did not provide (or could not provide) the Carrier's highest officer sufficient materials to develop this defense. 2/

"The arbitrator must repeat here what was concluded in this Award to case 870291:

"`It is unclear...if the work complained of represented eight (8) hours' work for each day listed in the Statement of Claim. It is clear that the work was, according to arbitral standards, substantial. Absent additional information on this matter, the arbitrator must conclude that the relief requested by the Organization is not unreasonable.'

"Award

"Extra Yardmaster M. R. Spears shall be paid one day's pay for each day for the dates of October 8, 9, 11, 16, 17, 20, 22, 23, 24, 26, 29; November 1, 23; and December 3, 1986 because of violation of the Agreement by the Carrier. All compensation due the Claimant shall be paid to him within thirty (30) days of the date of this Award.

"1/ See, for discussion of this principle, United Mine Workers of America, Local 1825 vs Consol. Coal Co, Burning Star No. 5 Mine 84-12-87-608 (Suntrup, Dec. 18, 1987); and more recently, BRCUS&C/TCU vs Denver & Rio Grande West. R.R. Co., C-1 Conditions (AMTRAK 33-11), (Suntrup, Sept. 29, 1988).

"2/ Declination of the claims by the Dallas Superintendent simply states, for example, that the reason for the declinations are because the claims have no `basis', or no `merit'. There is no additional information." (Emphasis ours)

Fourth Division Award No. 1494 (Weston)

"It is accordingly our view that the Carrier violated the Agreement by unilaterally assigning work covered by the Agreement to employes not subject to its terms. While it may be true that the duties in question do not constitute one of the primary functions of yardmasters, we cannot agree that they are negligible or insubstantial under any measurement formula, including the study mentioned by the Carrier, set forth in the record. Employes are entitled to the entire work content of their position that is embraced within the scope of the Agreement and it would be unreasonable to sanction the unilateral whittling away of any part of that total content."

Fourth Division Award No. 1836 (Weston)

"This dispute concerns the alleged use of employees outside the scope of the Yardmasters Agreement to perform Yardmaster work at Streator, Illinois, on October 26, 1960, and subsequent dates.

* * *

"Turning now to the merits, we find that, in considering the matter on the property, Petitioner supported its claim with particularized information showing that on specified dates between October 26, 1960, and February 16, 1961, certain employes outside the coverage of the Yardmaster Agreement performed work of the abolished position. The duties in question were described in sufficient detail and, in our opinion, are substantial.

"Though confronted with this specific information, Carrier raised no objection to its quality and presented no facts on the property to explain away or controvert the charges.

"Carrier has committed itself to a collective bargaining agreement covering its yardmasters and their work. So long as that Agreement remains in force, Carrier cannot unilaterally eliminate Yardmaster positions and have their duties performed by footboard yardmasters or other persons outside the scope of the Agreement. See Award 1343."

Fourth Division Award No. 2641 (Weston)

"Where employes and their work are covered by a collective bargaining agreement, those employes are entitled to perform such work unless a clear commitment exists to the contrary. If a different principle were followed, an agreement covering wages, hours and conditions of employment could lose much of its meaning since one of its most important objectives is the protection of the work within its scope."

Fourth Division Award No. 2189 (Seidenberg)

"When the Board has reviewed and analyzed the multitudinous awards presented to it by the parties, it is singularly aware that the problem inherent in the instant claim is one of long standing and that the Board has gone both ways on the issue. What this Board has synthesized from its study of the record and relevant precedents is that the parties have generally agreed that the scope rules of the Yardmasters' Agreement has exclusively vested in members of the Yardmaster craft, and in no other craft, the right to perform the work that exclusively belongs to Yardmasters, even though there may not be a precise and detailed description in the Agreement as to what constitutes yardmaster work or duties. This principle is not vitiated even though the very same scope rule also contains a provision giving the Carrier the unequivocal right to abolish, discontinue or establish yardmaster positions.

"Where the parties do disagree is upon the determination as to what sort of work or functions may be exclusively ascribed to the craft or class of yardmaster and may not be performed by another class or craft of employes. Disputes devolve upon the determination of whether such duties, either singly or collectively, as giving instructions or messages to engine foremen or footboard yardmasters, furnishing switching lists to road and yard crews, calling or marking up crews, handling complaints from shippers, are duties or functions which exclusively belong to the yardmaster craft or may also be performed by other classes or crafts. On the other hand, there is general agreement that a Yardmaster's principal duties, and the duties which exclusively belong to the Yardmaster craft, are the supervision of road and yard employes, within the confines of yard limits, when these employes are engaged in the making up, breaking up and handling of trains and performing switching duties. Obviously, the resolution of the present case, as other cases in the past, hinges upon the application of the aforementioned principles to the specific facts of the instant case.

"When the Board applies the established criteria to the case at hand, it is forced to conclude the evidence of record principally in the form of the 10 day study, (the facts therein being basically uncontradicted or refuted by the Carrier - only the interpretation drawn therefrom being challenged) supports the position advanced by the Organization. In the first place it is not contradicted in the record that the duties set forth in the study have been performed by yardmasters for the past 40 years at this Yard. Secondly, there is no showing in the record that there has been a sudden appreciable diminution in these duties. The Carrier states that it contemplated abolishing the yardmaster position at this Yard in 1963 but took no action until 1965 in order to provide employment for the then incumbent who was close to retirement. This fact not only indicates that the Carrier was compassionate but that there were also yardmaster duties to be performed because it is unlikely that the Carrier would have maintained a position in existence for two years if there was no work to be performed.

"But the most telling evidence in favor of the Organization's position is that the 10 day study reveals that such non-yardmaster employes as clerks and operators performed the following duties: clerks directing that certain trains be placed on certain tracks; making up trains on certain tracks; instructing crews to spot cars for unloading on certain tracks; yarding trains; instructing crews how to switch certain trains and what cars; directing that empties be placed and removed from certain locations; ordering cabooses to rip track for washing and cleaning purposes; switching the rip track and spotting cars on the team track. Operators marked up the crew board and ordered and called crews to work.

"The Board must hold that it is a reasonable assumption that when clerks and operators were instructing and directing road and yard crews to perform the above-mentioned duties they also are supervising these crews to insure that these functions are properly executed, absent the presence of a yardmaster. The nature of these duties demanded that the clerks and operators be more than a conduit for relaying or transmitting instructions. Railroad operations are not as cut and dried as the routine operation of a production line in a factory. In the course of railroad operations variable and unusual factors appear requiring a supervisor to make judgments and reach decisions to insure that the rendered instructions are carried out in the proper manner. The above mentioned work for many years had been supervised by a yardmaster, and the record now clearly indicates that the same supervisory work is now being divided up and parcelled out among several classes or crafts of employes not within the scope of the Yardmasters' Agreement. On the record before it, the Board had no recourse but to find that work existed which was within the purview of the Yardmasters' Agreement, and said work was being transferred to, and performed by, employes not encompassed by the Yardmasters' Agreement, to the detriment of the Claimant's contractual rights.

"Claim sustained."

Fourth Division Award No. 3009 (O'Brien)

". . . It is well established that the principal duties belonging to the yardmasters craft consists of supervision of employees, within yard limits, when such employees are engaged in the making up, breaking up and handling of trains, and performing switching duties. See Award 2189. . .

* * * *

"However, in the claim before us we conclude that the Organization has come forward with such evidence to convince us that duties existed at Idaho Falls which belonged to the yardmasters craft and said work was being performed by employees outside the Yardmasters' Agreement. Such evidence consisted of: the Terminal Superintendent directing what cars are to be loaded, where to place stock cars, where to store cars, instructing yard crews where to set up and spot cars for unloading, when to move cars out, when to move stock cars while the clerks instructed crews where to pull out and spot up loads, and on which tracks cars are to be placed. It is our opinion that such work involved these non-yardmasters in supervising yard crews in the making up and breaking up of trains and in their handling of trains in the yard. Since such work involves a substantial part of the duties of the yardmasters we are compelled to the conclusion that non-yardmasters are performing such work in violation of the Yardmasters Agreement."

Fourth Division Award No. 3204 (Eischen)

"We are not breaking new ground in this case. The general principles governing such claims as that presented here are well established in Award 797 and following Awards, to wit:

"`This claim is premised on the theory that work belonging to Yardmasters has been assigned to employes outside of the scope of their Agreement. The Scope Rule does not purport to define the work of Yardmasters. By custom and usage it is well understood, however, that the principal duties of yardmasters are to supervise the employes engaged in making up, breaking up and handling trains and switching in railroad yards. By reason of the Agreement with the Yardmasters, such work belongs exclusively to that craft or class and, subject to definite exclusions mentioned in the Agreement, may not arbitrarily be removed from Yardmasters and performed by persons of a difference class or craft not covered by the Agreement. However, under Rule 16(e), the Carrier may abolish a Yardmaster position. It is for the Carrier to determine what, if any supervision it cares to have of the yard work during any particular period of time. But, having abolished a Yardmaster position, if any work remains, the Carrier may not then require others, outside of the Agreement and not excluded therefrom, to perform such work.'

* * * *

"We have carefully considered the relevant record evidence confining our review, as we must, to probative evidence timely placed in the record. We are constrained to conclude that on balance Petitioner has carried its burden of proof by demonstrating that in the facts and circumstances of this case employes other than Yardmasters have supervised employes engaged in the making up, breaking up and handling of trains and switching in Carrier's Fitchburg Yard. Specifically, we find on the record that the Yard Clerk not only makes up the switching lists (concededly clerk's duty) but also instructs the yard foreman to show him which cars to switch out or make up into trains. (Yardmasters' duty). See Award 2627. Also the record supports the allegation that the tower operator and the clerk are, between them, performing other yardmaster functions regarding deciding, assigning and ordering which clear tracks are to be used and where a pick up or set off is to be made. In the face of this record we must sustain the claim." (Emphasis added)

Fourth Division Award No. 2589 (Weston)

". . . Work covered by any collective bargaining agreement is reserved for employes holding seniority rights under that agreement. If employes outside the scope of the agreement are permitted to occupy positions covered by its terms, the agreement is undermined and rendered meaningless to that extent.

"The Yardmasters Organization, the accredited and sole bargaining Agent of the yardmasters involved in the present case, negotiated this Agreement for the benefit of the employes within the bargaining unit and any position within the scope of that Agreement must be filled only by the classifications covered by its terms when they are available to do so. A contrary holding would be inconsistent with elementary principles of labor-management relations and would ignore the purpose and scope of the Agreement as well as the seniority rights of the employes it covers."

Fourth Division Award No. 2640 (Weston)

"In support of its contention, Petitioner has submitted evidence showing that switch orders have been given to the engine foreman and footboard yardmaster by clerks on several dates in August 1969. Carrier contends that the clerks were merely transmitting information in the course of that work but there is nothing in the record that suggests that a yardmaster was on duty to originate the orders and to use the clerks for routine messenger work.

"Under the circumstances of this case, we are not impressed by Carrier's statement that 'Such yard supervision as is required to be performed has been assigned to the footboard yardmaster on the 3:00 P.M. shift.'

"On the basis of this record, there is no question but that non-yardmasters have been assigned to perform yardmaster functions and that work has been removed from the Yardmasters Agreement by Carrier's unilateral action."

First Division Award No. 14723 (Munro)

". . . We think if a sustaining award is to be rendered it must be on the theory so ably and forcefully set out by Judge Swacker in Award 351 and in which the Judge lays down the general rule to be that the contract of employment carries with it, if not expressly, then by necessary implication, the covenant employes have the right to protect the work for which they are employed, else the contract is meaningless."

Third Division Award No. 23485 (LaRocco)

". . . The Organization argues that, on this property, the work is exclusively reserved to clerical employes assigned as crew dispatchers on the basis of a long standing historical practice and because the Carrier's `Crew Dispatcher's Manual' assigned the duties to crew dispatchers. In the manual, crew dispatchers are instructed to prepare and distribute an inbound train line-up at four-hour intervals each day. The Carrier concedes that the train dispatcher performed the work on the dates in question but raises three major defenses. First, the Carrier claims the train dispatcher can efficiently and expeditiously compile the line-up since he is the source of the information contained in the report. According to the Carrier, the preparation and distribution of the report is incidental to the train dispatcher's primary duties. Second, the Carrier alleges that the practice of using crew dispatchers to prepare the line-up became obsolete in 1973 when the train dispatcher moved into the same building occupied by the crew dispatcher. The Carrier, therefore, asserts that the current claim is barred by laches and estoppel because the Employes should have raised the claim in 1973. Lastly, the Carrier urges us to deny the claim because the claimant has failed to prove that the broad Scope Clause covers this particular work. Furthermore, the Carrier states that the Crew Dispatcher's Manual is irrelevant since it was unilaterally issued and not the product of collective bargaining.

"On this property, the record presented to us clearly shows that employes in the position of crew dispatcher have historically and exclusively performed the task of preparing and delivering the report on incoming trains. Once this exclusivity is obtained, the Scope Rule protects the activity, and the work cannot be removed except through collective negotiations. Third Division Awards No. 20839 (Franden); and No. 21382 (Lieberman)."

Third Division Award No. 7576 (Shugrue)

"The Employes' position here is the same as set forth in Award 7575 and the Carrier maintains the same defenses absent any attempt for justification by reason of emergency.

"In view of the conclusions set forth in our Award 7575 this claim must be sustained. We do not deem it material that the work removed from the Agreement appears to be limited in amount. Whether it be limited or substantial is not controlling - the fact that work was removed is what is material." (Emphasis added)

Third Division Award No. 604 (Swacker)

"This board, and others, have held, in many decisions, that work of a class covered by the agreement belongs to the employes upon whose behalf it was made and cannot be delegated to others without violating the agreement. It is considered that the instant case directly conflicts with that principle."

Public Law Board No. 4093, Award No. 17 (Zusman)

"The Organization filed the instant claim by letter dated January 6, 1988. In that letter the Organization alleged that the Carrier abolished all Yardmaster positions at Etowah Terminal and assigned Yardmaster responsibilities to other crafts not covered by the Scope of the Agreement. By specific examples in that and other correspondence and with evidentiary support including Operating Rules, the Organization alleged that trains were being blocked, switched and movements supervised by Clerks, Operators, Dispatchers, Agents and Trainmasters in violation of the Scope Rule of the Agreement. That Rule reads in pertinent part that Yardmasters are responsible for:

"`(1) Supervision over employees engaged in the switching, blocking, classifying and handling of cars and trains required of the yardmaster in a territory as designated by the carrier.

"`(2) Such other duties as assigned by the carrier.'

"The Carrier's response was issued by the Division Manager in a letter dated February 1, 1988. That response stated only that `the above listed claims are respectfully declined account not supported by work agreement.'

"The Organization has pursued this Claim on the further grounds that the denial (supra) violates Rule 15 (a) in that the disallowance of claim must present `the reason for such disallowance.' The Organization argues that the response failed to do so and was thereby an inadequate denial.

"The Carrier further denied this claim in that it found little or no yard activity during a visit to Etowah. The Carrier agrees that `the cars that are handled in the former yard are done so by the instructions you alluded to in your claim.' Carrier argues that Etowah is not a working yard and most importantly that no other crafts are doing work `exclusively assigned to the Yardmasters.' It argues that there are few employees at the terminal and the Trainmaster visits Etowah only on isolated instances. In Carrier's final denial, the Director of Labor Relations states that it does `not agree that excessive amounts of switching are being done at Etowah.'

"From the record before us that developed on property we conclude that the Carrier has violated the Agreement. Most important to our conclusion which we make on the merits is that Carrier throughout the handling on this property failed to rebut or deny the Organization's assertions and evidence. Among the many points raised by the Organization were the following. The Organization argued a procedural violation of Rule 15(a) without rebuttal from the Carrier. The Organization argued with message instructions that substantial switching was being done at Etowah and the Carrier response indicated that it was not `excessive'. The instructions to trains provided as probative evidence by the Organization indicates that crews were being asked to block and switch trains which is within the Scope of the Yardmaster's Agreement and not specifically denied by the Carrier. The Organization provided signed statements by Yardmasters that after abolishment their work was being performed by the Trainmaster, Agent, Dispatchers at Corbin and Atlanta and others. The Organization further provided a statement by the Agent stating that `each and every day I am required to do the work formally done by the Yardmaster.' In addition to statements for Crew Callers, the Organization provided statements signed by over sixty (60) Conductors, Engineers and others stating that:

"`After the Yardmaster jobs at Etowah were abolished... we... have been taking yard and switching instructions, such as what engines to use, what track to use, what to switch, and how to build or work our train, from Trainmaster D. R. Mearkle, Agent M. O. Fullbright, North Dispatcher, South Dispatcher, or by the Clerk on duty. These instructions referred to were formally issued by a Yardmaster.'

"Again, the Carrier did not rebut these assertions on the property. If Carrier had a defense for the assertions and evidence presented by the Organization the only proper place to raise it was on the property. This the Carrier did not do and unrebutted assertions must be accepted as fact (Third Division Awards 20041, 12840, 20109, 14385; Fourth Division Awards 2863, 3480).

"The Organization made a prima facie case for an alleged violation of the Scope Rule and Rule 15 (a) of the Agreement. The Carrier denied that Etowah was a working yard in need of supervision by Yardmasters or that any work performed after abolishment was exclusively assigned to Yardmasters. The Organization responded with further evidence indicating that as per the Scope Rule, `switching, blocking, classifying and handling of cars' was being done at Etowah. The Organization's response of April 12, 1988 included a point by point rebuttal of the Carrier's contention of `little or no activity' at Etowah Terminal. That rebuttal included sufficient evidence that more than a little activity occurred at Etowah. It is not possible from this record to conclude with precision just how much work does exist and nor did the Carrier in its on property correspondence develop any Agreement support for the importance of such evidence, but there can be little doubt that it was substantial. The Organization provided a long list of dates and times showing the hours of actual yard switching that was performed along with listing four trains used in switching on a near daily basis. Again, in the face of a preponderance of signed statements, lists of other employees doing switching, classifying, breaking up and building trains, the Carrier provided no affirmative defense and raised almost no objection to the facts presented.

"Clearly the Carrier is vested with the right to change its operating rules, as these are not collectively bargained agreements. However, it may neither unilaterally change nor violate the Scope Rule of the Agreement. Etowah is a territory governed by the Agreement. In view of the record of probative evidence demonstrating the exclusive right of Yardmasters to supervise within the Scope of the Agreement, we must sustain the claim. This right has been upheld by numerous Awards (Fourth Division Awards 3204, 3009, 2641, 2189, 1494).

"The issue at bar is whether Yardmasters responsibilities delineated by the Scope of the Agreement are being performed at Etowah by employees of other crafts. The record as developed on property forces us to sustain the Organization's claim. The record indicates that Yardmaster's work is being performed by employees foreign to the Agreement. We must sustain the claim as presented on its merits. However, we are without authority to order the Carrier to reinstate positions."

Public Law Board No. 6229, Case No. 3 (Conway) (UTU/Kansas City Southern)

"While, as with all rules, Article 1 must be subject to reasonable application, in the face of the evidence of record here, the Board is unable to find that the Scope Rule of the Agreement has been violated by Carrier's action in requiring yardmasters to occasionally push buttons in the process of obtaining car weights."

Third Division Award No. 34001 (Marx) (TCU/Burlington Northern Santa Fe)

"The Board inevitably finds that the clerical function continues. The Award will sustain the claim for the hours sought for the Claimant, except for dates on which no data entries were made on specific 3:00 P.M. to 11:00 P.M. shifts or on specific first shift rest days of the Claimant."


Third Division Award No. 34035 (Benn) (TCU/Burlington Northern Santa Fe)

"On balance, we are persuaded that the Organization satisfied its burden and demonstrated that at least part of the Administration Clerk's work was taken from that position and assigned to a non-covered position."

Third Division Award No. 33644 (O'Brien) (TCU/Delaware & Hudson Railway)

"It is unclear from the record before the Board exactly what clerical duties formerly performed by the first trick Train Clerk at Rouses Point Yard have allegedly been assigned to Yardmaster Longtin. Therefore, based on the record before us we are unable to conclude that clerical duties were removed from the Scope of the Agreement in contravention of Rule 1(b)."

Public Law Board No. 5303, Awd. 12, Case 12 (Zusman) (UTU/Missouri Pacific)

"This Board notes that in Public Law Board No. 5303, Case No. 12, Award No. 12, we held that:

...the Scope Rule was violated and there was lost opportunity. There is sufficient probative evidence to substantiate the Claim. Based upon our additional review of the extensive evidence and issues we arrive at the same conclusion as more fully developed in our prior Award No. 11 of Public Law Board No. 5303. Accordingly we sustain the Claim.

After full consideration of the substance of this dispute, the Board holds that the intent is consistent with Interpretation No. 1 to Public Law Board No. 5303, Case No. 11, Award No. 11. The qualified bidder is to receive a day's pay for lost work opportunity irrespective of previous earnings."