STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
EMPLOYES' STATEMENT OF FACTS: There is an agreement between the Erie Railroad Company and their train dispatchers represented by the American Train Dispatchers Association, effective April 8, 1942, including amendments thereto, governing hours of service and working conditions of train dispatchers. A copy of this agreement is on file with your Honorable Board and by this reference is made a part of this submission as though fully set out herein.
For the convenience of the Board the following rules of the agreement pertinent to this dispute are quoted as follows:
Chairman's letter of April 27, 1954, Carrier's Exhibit "L", makes it clear that he too declined the offer. Also see Carrier's Exhibit "Q".
In the light of the foregoing facts, it is clear that the Organization has put itself in an anomalous position. It is here asking this Board to direct the Carrier to do exactly the thing the Carrier offered to do on July 29, 1953. This, indeed, is an unusual situation and the Carrier is unable to anticipate the motive behind it. Based on these facts it is evident there is some doubt in the mind of the petitioner as to whether or not its position is sound. However, in considering this case, the Board should keep Carrier's offer in mind.
It is certain that neither Article 5 (j) nor Article 5 (1), relied on by the Organization, has application to the facts and circumstances surrounding this dispute. In act, a review of the complete agreement will disclose there is no provision therein that requires or permits the Carrier to bulletin claimant's position as a new one for the purpose of giving him a displacement right.
From the foregoing, it is clear that this dispute should be dismissed on the basis of Carrier's valid, justified and Board supported protest. However, if the Board finds it cannot recognize former authorities in support of the protest, then the claim must be denied in its entirety on the grounds that a sustaining award would require the writing of a new or the amending of an existing rule, which action, of course, is beyond the power of this Board. Awards 5971, 5977, 6107, 6208, 6271, and others.
The Carrier submits that all data in support of its position in this case has been discussed with or is known to the Organization or the employes.
OPINION OF BOARD: This claim arises out of the same facts and circumstances set forth at some length in Award No. 7211. The facts detailed in that award will not be repeated here except insofar as they relate particularly to the specific claim involved in this case. In short, Claimant was the incumbent of the position known as first-trick dispatcher New York and Greenwood Lake Division. There was in existence another separate position known as first-trick dispatcher Northern Branch District, New York and New Jersey Railroad. On May 28, 1953 Carrier issued a notice to the effect that the dispatcher position known as first-trick Northern R. R. would be abolished effective June 2, 1953; and that the work of that position would henceforth be done by Claimant.
Claimant contends that the effect of the abolition of the Northern firsttrick position and the addition of its duties to the Greenwood Lake firsttrick position was to create a new position, and that under Article 5 (j) of the Agreement the Carrier was required to bulletin it as such. He further contends that the failure of Carrier to bulletin the new position prevented him from exercising his displacement rights under Article 5 (1), and claims an additional day's pay beginning June 2, 1953 and continuing until Carrier bulletins the new position.
Carrier contends that the changes which occurred merely amounted to the assignment of some additional duties to Claimant's existing position, and that these changes were not substantial enough to destroy the identity of that position as it had existed previously.
We think that the change in Claimant's position brought about by adding to it the duties previously assigned to the Northern R. R. position changed its identity substantially. The cases cited by Carrier wherein rest days were changed, additional equipment was added, dusting duties were changed to sweeping duties, etc., are not analogous to the present case, where the very thing which gave the position its identity-the line of track for which it was responsible-changed materially. The changes ordered by Carrier effective June 2, 1953 resulted in the creation of a new position under Article 5 (j) and it should be bulletined as such in accordance with that rule. To this extent, the claim is sustained.
However, the record does not show that Claimant has suffered any loss because the position was not bulletined promptly, and no rule is cited which entitles him to the additional compensation claimed. The claim for additional compensation is denied.
FINDINGS: The Third Division of the Adjustment Board, 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