8. If the parties hereto are in disagreement over the necessity of splitting the rest days on any such assignments, the Carrier may nevertheless put the assignments into effect subject to the right of the employes to process the dispute as a grievance or claim under the rules agreement, and in such proceedings the burden will be on the Carrier to prove that its operational requirements would be impaired if it did not split the rest days in question and that this could be avoided only by working certain employes in excess of five (5) days per week."

"Rule 38-Intermittent Service

"(f) No position shall be worked on an intermittent basis under this rule except by mutual agreement"

Obviously the case here involved does not fall within the category of any of the above rules and negotiations were, therefore, not in order.

3. That if need for negotiations is the question to be decided, the Carrier fully complied in conference with General Chairman Dyer and Division Chairman Newbill on July 25, 1951.

The Board's attention is invited to Agent Warren's letter of December 31, file 100-7, page 12 of this submission, addressed to General Manager Leach on subject case. Also, attention is invited to statements of Chief Clerk H. E. Scherffius and Warehouse Foreman F. L. Sumrall, which are designated as Exhibits "C" and "D", respectively, and made a documentary part of this submission.

4. That the Organization sought to intimidate an unnamed employe for the purpose of progressing instant claim; thus placing both the employe and the Carrier in a defenseless position. (See third paragraph of Division Chairman Newbill's letter of September 4, 1951, file B-14, page 8 of this submission). It is the contention of the Carrier that the Organization should be required to name the employe referred to so that the Carrier may produce evidence of that employe's educational accomplishments and office skill with that of any other employe involved in this dispute.

The facts and circumstances of the instant case set forth herein lend to the Carrier's contention that the Organization's claim is without basis because there were no violations of the agreement, nor were there any undue monetary losses suffered by the employes that could have been avoided by pursuance of any course other than the one taken by the Carrier, and the claim should be denied.

Matters contained in this submission have been subject of correspondence and conferences between both parties to this dispute.

(Exhibits not reproduced).

OPINION OF BOARD: Rule 52 (a) limits the Carrier's right to abolish established positions and create new ones only where such action will (1) reduce the rate of pay or (2) evade the application of the rules. The abolishment of position No. 1312 and the creation of position No. 2027 did not reduce the rate of pay.

The contention that such action had the effect of evading the application of the rules is based upon allegation that J. P. Glenn was denied the right to exercise his seniority to obtain position No. 1312 on August 17, 1951, a few days before it was abolished. The evidence as to the conference between Glenn and Agent Warren on August 17, 1951 is in direct conflict. We have

no facilities for resolving that conflict and, since Claimant has the burden to prove the claimed violation of the rules, we must find that such allegation has not been proven and the contention cannot be sustained.

From the evidence here presented it appears that the abolishment of position No. 1312 and the creation of position No. 2027 was for the proper purpose of effectuating a change of duties. Consequently such action was not prohibited by Rule 52 (a).

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

That the Agreement was not violated.

AWARD