NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
STATEMENT OF FACTS.-Position of Assistant Chief Clerk to the Superintendent, Southern Division, Sausalito, California, became vacant, November 1, 1935. It was assigned, without bulletin, to one A. 1i'. Anderson, who held no seniority rights on any roster under the Clerics' Agreement.
POSITION OF EMPLOYES.-Rule 17, captioned "Bulletining positions," contains no exception in regard to the many positions within the scope of the Clerks' Agreement, except truckers and laborers, and the position in question, is therefore, not excepted therefrom. While this position is excepted from the promotion, assignment, and displacement rules, the provisions of "Bulletining Positions" do apply. Section (d) of Rule 1 provides that in filling these excepted positions, preferred consideration will be given employes covered by the agreement, and the assignment of an employs who does not carry seniority rights under the provisions of the Clerks' Agreement is certainly not giving preferred consideration to employes covered thereby.
Rule 30 provides that positions of supervisory agents will be bulletined when vacancies occur, and it is not unreasonably assumed that if the more important position of agent must be bulletined, it was also flee intent of the agreement to require the bulletining of positions listed in sub-section (d) of Rule 1.
As evidence that the carrier applied our interpretation in construction of the rules herein involved, we submit copy of bulletin covering the position in question, filed on April 30, 1930, and assignment bulletin, No. 9, dated May 12, 1930, when this position was previously vacated and filled. We also submit copy of bulletin No. 1 of March 3. 1936, on which position of Depot Master at the San Francisco Ferry is shown to have been open for application, together with Bulletin No. 2, dated March 14, 1936, showing the position of Depot Master was assigned to H. H. Fowler. Both the position involved in this dispute and the position of Depot Master at the San Francisco Ferry are covered by the provisions of subsection (d), Rule 1. The following rules of tile agreement between the parties, bearing effective date of April 1, 1926, are cited in support of our contentions
"These rules shall govern the hours of service and working conditions of the following employes, subject to the exceptions noted below:
"(2) Other office, station, and store employes, such as office boys, messengers, chore boys, train announcers, gatemen, baggage and parcel room employes, train and engine crew callers, operators of certain office or station appliances and devices, telephone switchboard operators, elevator operators, office, station, and warehouse watchmen and janitors.
"(3) Laborers employed in and around stations, storehouses, and warehouses.
POSITION OF CARRIER.-The National Railroad Adjustment Board, Third Division, cannot legally assume jurisdiction in this dispute for the reason that the claim constitutes a request upon the carrier for a change in rules and working conditions, such as would classify under Section 6 of the Railway Labor Act, and the carrier, therefore, respectfully protests against the Board assuming jurisdiction of this case.
The Local and General Committees in the past have asked that the position in question be bulletined and that it be filled with an employe covered by the agreement, which the management has declined to do. There is no requirement in the agreement that this position be assigned. On the contrary, the position is clearly excepted from the tale providing for the assignment of positions.
The agreement provides that preferred coneideratiom will be given employes covered by the whole agreement. Employes' request that the position be assigned to an employe on seniority roster of Southern Division is contrary to the agreement.
The only requirement in the agreement as to the filling of this excepted position is that preferred consideration be given employes covered by the agreement. Employes referred to are those on the whole railroad, covered by the Clerks' Agreement, and not merely employes on the Southern Division or those only on the seniority district of the Superintendent's office, Southern Division.
On November 1, 1035, the position was vacated. and A. W. Anderson was appointed to the place. The position was not bulletined, and no assignment was made. Before filling the position, preferred consideration was given to all em. ployes covered by the Clerics' Agreement, and it was the judgment of the management that Mr. Anderson be appointed thereto.
The only omission, if there be one, on the part of the carrier is that the position was not bulletined, an anomalous situation, for, under Rule I (d), the Assignment Role 17 (e) is excepted. To dispose of this case, the carrier, in conference with the Employes' General Committee. offered to bulletin the position, but tbis was not satisfactory to the Clerks' Organization. Outside of this one thing, bulletining of the position, the request of the employes is for a new rule. Except as to the bulletining of the position, it is not within the jurisdiction of the Board to grant the request of the employes,
OPINION OF BOARD.-The position of Assistant Chief Clerk to Superin· tendent at Sausalito is "excepted" from the provision,, of the promotion, assi~nment, and displacement rules, It is not excepted from the provisions of "Bulletining Positions" Rule 17 (n), but is excepted from other provisions of But(', 17, When a future vacancy occurs, this position should be tnllletined in accordance with Rule 17 (a), and in filling it preferred consideration should be given to employes covered by the agreement in accordance with Rate I (d).
FINDINGS.-The Third Division of the Adjustment Board, after giving the parties to this dispute duo notice of hearing thereon, and upon the whole record and all the evidence, finds and holds;
That the carrier and the employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the evidence does not sustain the claim as presented.