OPINION OF BOARD: A determination of this case depends upon a factual background and an interpretation of certain rules, therefore, it seems proper to a complete understanding of the matter that the pertinent facts found from the records should be set out.

Prior to September, 1932, the timekeeping for the train and enginemen station employes and track forces was handled by Timekeepers and Assistant Timekeepers located at certain points on the railway. These Timekeepers were a part of the Division Office service and personnel. During September of 1932, this function was moved to St. Louis and was lodged with the Auditor of Disbursements. With the transfer fifteen Division Office timekeeping positions were abolished. Nine Auditor of Disbursement timekeeping positions were created. About this there is no complaint.

In January, 1937, the Mechanical Department timekeeping was likewise transferred to St. Louis. Five timekeeping positions were abolished and in St. Louis two timekeeping and two distribution clerks' positions created. About this also there is no complaint.

Substantially then the claim is that six employes in the Machine Bureau of the General Auditor's office are performing and giving their time in whole or in large part to the work which was, before 1932 as to the one group of employes, and before 1937 as to the other named group, performed by Division ffice timekeepers, and that they are entitled to be classified and rated as timekeepers, and receive the minimum rate of pay for such classification, whereas they are not now so classified, but are classified as Key Punch perators and receive the corresponding rate of pay.

The Employes contend that the Carrier has violated Rule 83, which is as follows:

The Carrier says that there has in fact been no violation, and further in substance that in any event laches and prior evident interpretation by claimant which the Carrier had a right to, and did rely on, should in any event, preclude a recovery.

If a determination in the particular instance may be had on the merits which is just and proper and which does not come into conflict with sound precedent, then reference should not be had to the uncertain and divergent rules of law bearing on "laches" or "interpretative acquiescence."

In the light of this approach we find from the record here (1) that the transfers were made properly, (2) that certain work formerly done by timekeepers was transferred to the Key Punch Department, (3) that all of the transferred work became strictly key punch work except certain "verification work," (4) that the Key Punch Department had existed previously and that this work was added to the work of the Department without the creation of a new classification to handle the work, (5) that this work appears however to have been assigned to six particular employes in the Department, ` (6) that these employes are on a lower pay rating than timekeepers, (7) that with the making of the two transfers a total of twenty timekeeping posiions were abolished and eleven new ones established, also two distribution clerks' positions were established.

These facts are significant in a determination of whether or not new positions have been created covering relatively the same class of work. "Relatively the same," may be variously defined, and it is not capable of exact definition, but in common acceptation and as generally understood, it means, in substance, or in its primary particulars the same. This Third Division in Award 1092, Docket CL-1152, has made practical application of this definition and principle. There it is stated:

If this statement is a reasonable application of one side of the rule then a reasonable application of the converse of the rule should be considered proper. This calls for an appraisal of the amount, and if possible, the character of the work which was transferred to the Machine Department and of that which remained in the hands of timekeepers and others.

The entire work was handled prior to transfer by twenty timekeepers. The work which remained after transfer of a portion of the Machine Department is handled by eleven timekeepers and two distribution clerks. The transferred work is handled by six key punch operators who devote part or all of their time to the work. On the basis of mere number of employes engaged on the Division of timekeeping employment it is obvious that less than one-third of timekeeping work was transferred to the Key Punch Operators.

Now as to the character of the transferred work, it is clear that practically all of the clerical work with reference to the timekeeping is done before the Key Punch Operators begin to function, and that practically none is done by them, also that in quantity and quality and relative importance the division of work transferred to Key Punch Operators is minor by comparison with that which remains to timekeepers, and distribution clerks, which is major.

As a general observation this case should not be allowed to depend upon what amount of the transferred work was assigned in the Key Punch Department to any particular operator or operators, but upon the relative amount and character of work taken from the Timekeeping Department and transferred to and performed in the Key Punch Department.

From the entire record we find no violation by the Carrier of Clerks' Agreement as contained in the rules, and particularly Rule 83.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the carrier and the employes involved in this dispute are respectively carrier and employes 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

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division