There are no train orders to handle. Present operations are conducted strictly in accordance with the working agreements covering the various crafts.

The Employes are now asking this Board to set back the clock and maintain positions which are not needed and which would serve no useful purpose. They are asking that the action of the Interstate Commerce Commission be nullified, despite the fact that they were given the opportunity by public notice of opposing such action. They are asking that a windfall be given to unidentified claimants for an alleged violation of the Scope Rule when no work remains to be performed under that rule.

There has been no violation of the current agreement and there is no basis for such an allegation. The claim is entirely without merit and should be denied.

All that is contained herein is either known or available to the Employes and their representatives.

(Exhibits not reproduced.)

OPINION OF BOARD: This dispute involves a contention by the Employer that when the Carrier abolished all three positions of operator-leverman at the Interlocking Tower South Whitley, Indiana, and transferred the work of these positions to employes of another craft, located in a different seniority district, it violated their Agreement. There is also involved a contention that the Carrier failed to comply with Article V of the August 21 Agreement.

The employes have not asked for the re-establishment of the South W hitley installation, but rather, because of such wrongful act, the Carrier be required to compensate the Senior idle employe, extra in preference, on the seniority district involved, eight (S) hours pay for each shift of each day commencing with December 14, 1954, and also all other employes adversely affected for any loss of wages and expenses.

The first question that confronts us, is did the Carrier have the right to abolish the positions at South Whitley tower?

It is the contention of the Carrier that the closing of South Whitley Tower was brought about by completion of C.T.C. on the Chicago Division, which practically eliminated the work previously performed by the Operators and Levermen at that point.

The record clearly shows that at South Whitley the C.T.C. has done, what it was designed to do, that is, it has made automatic the operation of switches and signals under the Supervisory Control of train dispatchers.

This Division has had many similar cases before it, we will quote from Award 4452, with Judge Carter, Referee:

"It is evident from a reading of the foregoing Scope Rule that work incident to the operation of a CTC installation is not specifically mentioned. The Organization contends that the definition of the word `leverman' and `towerman' as used in the industry, includes those charged with the operation of CTC machines.

_n »

"* * * It must be borne in mind that when the Scope Rule of the Telegraphers' Agreement was negotiated, CTC installations were unknown and consequently not contemplated by the signatories to that Agreement. It is clear to this Board that the definition of a towerman or a leverman heretofore recited contemplated the handling of signals, switches and mechanical interlocking equipment from a tower under the general direction of a dispatcher by the train order method. By the accepted definition, a towerman or leverman operates interlocked switches and signals from a central point as does the operator of a CTC machine. The definition of a towerman or leverman, however, contains the additional limiting words `by means of levers', a limitation wholly foreign to a CTC machine which operates automatically without the use of levers. The work of a towerman or leverman is necessarily restricted in the scope of its operation to the vicinity of the tower. A CTC operation is handled from a central point and controls large sections of a railroad line. Its scope of operation is much greater. It is automatically controlled and eliminates the train order method of handling trains. The Telegraphers' Agreement clearly includes the work of towerman and leverman. They naturally belong there because of the necessity for handling train orders in connection with their work. We cannot say that the operation of a CTC machine, which eliminates train order control and consequently one of the most descriptive elements of a telegrapher's work, is included in the scope of the Telegraphers' Agreement because it includes towermen and levermen. * * *

"We think the matter constitutes a jurisdictional dispute. It is a dispute of long standing on this and other railroads. It has resulted in mediation on some other Carriers where the situation has been similar to the one we have before us. Awards 641, 2804. The record indicates that this work has by agreement or arbitration been negotiated on other Carriers by the Telegraphers and Dispatchers without consistency of result. This is evidence only of the jurisdictional nature of the dispute. There must be an agreement with reference to the work before this Board has jurisdiction to act, this Board being solely an interpreting agency under the law creating it. * * *"

We come now to the claim of the Employes:

"that the Carrier stands in violation of Act V, paragraphs (a) and (b) of the August 21, 1954 Agrement when it failed to notify the employes of its disallowance of said claim within the 60 day time limit from the date claim was filed as stipulated by said Agreement, for which Carrier shall pay the claim as presented."

Thus it was the duty of the Carrier under the Agreement, within 60 days after the filing of the claim to notify whoever filed the claim or grievance in writing of the reasons for the disallowance, if the claim was disallowed.

We quote the pertinent part of Article V:

"All claims or grievances arising on or after January 1, 1955 shall be handled as follows:

"(a) All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the carrier shall, within 60 days from the date same is filed, notify whoever filed the claim or grievance (the employe or his representative) is writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances.

"(b) If a disallowed claim or grievance is to be appealed, such appeal must be in writing and must be taken within 60 days from receipt of notice of disallowance, and the representative of the Carrier shall be notified in writing within that time of the rejection of his decision. Failing to comply with the provision, the matter shall be considered closed, but this shall not be considered as a precedent or waiver of the contentions of the employe as to other similar claims or grievances. It is understood, however, that the parties may, by agreement, at any state of the handling of a claim or grievance on the property, extend the 60-day period for either a decision or appeal, up to and including the highest officer of the Carrier designated for that purpose."

The Carrier states that the letter denying the claim was written on March 11, 1955, which was the very last day permissible, to wit the 59th day, and that it was mailed in the usual manner, in accordance with past practice, in the mailbox, March 11, 1955 which was Friday. The letter of March 11th was not mailed according to the post mark until March 14, 1955 which was the 62nd day after the filing of the claim.

The Carrier explains that by reason of grade elimination, work under construction at the time the mailbox at the depot was temporarily relocated, which it contends undoubtedly resulted in postal employe's failing to pick up the letter of March 11th over the weekend.

The employes submit a copy of a letter written to the Postmaster at Fort Wayne, Indiana, and his reply we quote from the letter of September 29, 1955, written by the Postmaster to Mr. Hayes:

"In reply to yours of September 29, 1955, please be advised that we have no record of failure to collect from the collection box located at the Nickel Plate Depot, on schedule, on Friday, March 11, 1955.

This box is scheduled to be opened five times during each week, by 3 different employes. It is almost inconceivable that all would have missed it on that particular day. Since yours is the only inquiry regarding the matter, it must be assumed that collections were made according to schedule."

This Division was confronted with a similar case in Award No. 8412, we quote:

"We cannot agree with this argument. Article V, Section 1 (a), specifies correlative rights and duties of employes (or their representatives) and of carriers. A carrier's specified duty is to give timely notice of a disallowed claim, with reasons for disallowance. Otherwise the claim must be allowed as presented. Inherent and necessary for the proper performance of this specified obligation are certain other, unspecified obligations. Among these are (1) The duty to keep the channels of communication within management open and free; (2) the duty to investigate claims promptly; (3) the duty to confer on claims promptly with representatives of claimants; and (4) the duty to make prompt decisions of allowance or disallowance. It is argued that some or all of these items are rights of a carrier under the Railway Labor Act. This may well be true. But they are also duties of a carrier under the second sentence of Article V, Section 1 (a) of the August 21, 1954 Agreement. They are duties which inhere in said sentence; and if said duties are not fulfilled, the carrier suffers a penalty. To so rule is not to rewrite or add to the Parties' Agreement.

"In respect to the loss of a written, timely filed claim in the mails or otherwise, it must be clear that a Carrier could defeat the purpose of Article V, Section 1 (a) if it failed wittingly or unwittingly to see that the claim was passed up to the decision-making official through proper channels. If the position of the Carrier in the instant case were to prevail, it would be possible to disallow a claim by losing it rather than by passing on its merits. If the claim were refiled after being lost, it would be possible to allege that said re-filing was not timely."

We can come to no other conclusion, than that the Carrier failed to comply with Article V of the Agreement, in failing to give the required denial of the claim within the 60 day period.

Carrier claims that the officer of the Carrier authorized to receive the instant claim was the Chief Dispatcher, who issued the order abolishing claimants positions, and that the successive order of appeals, as required was to the Superintendent, General Superintendent and finally to the Director of Personnel.

The record shows that the instant claim was first filed by the General Chairman with the Superintendent (not with the Chief Dispatcher) under date of January 10, 1955, and it is the claim of the Carrier that from the very first, the Carrier called the attention of the Employes; that the claim had not been "properly progressed in the regular manner." The answer to this contention is that the letter calling this to the attention of Employes was the letter dated March 11, 1955, and postmarked March 14, 1955, in other words it was too late, more than 60 days had expired.

The Carrier relies on Award 8889 (McMahon), but in that case the procedure was outlined in the Agreement.

We quote from the Carrier's submission:

"The usual handling of claims or grievances on the Chicago Division in telegrapliers' cases is the initial filing of claim with the Chief Dispatcher, with successive appeals, if reqoired, to the Superintendent, General Superintendent, and finally to the Director of Personnel.

There are some few instances where the initial handling has been with the Superintendent. The initial handling or filing is usually by the Local Chairman with any subsequent handling by the General Chairman. In a few instances the initial handling has been by the General Chairman. The Carrier has not taken exception to the filing of claims by the individual employe or his authorized representative, be that representative the Local Chairman or General Chairman. However, it does object to duplicate handling of the same claim on a concurrent basis."

"We are of the opinion that time limits fixed are agreed to by the parties should be strictly applied. This claim falls within the type known as a continuing claim. `Continuing claims' are a device adopted by the parties to avoid a multiplicity of claims, to avoid the need for filing a new claim every day for that day's violation.

Article V..1 (a) of the August 21, 1954 agreement provides explicitly, `All claims must be presented . . . within 60 days . . . Should . . . such claim be disallowed, the carrier shall, within 60 days . . . notify in writing of the reasons . . . If not so notified the claim or grievance shall be allowed as presented,'.

"At first glance the rule appears deceptively simple of application. The difficulty arises when it is attempted to put it into operation in a claim for an alleged violation in the future. If the claim is found to be valid on its merits, it should properly be allowed without any restriction on future application. On the other hand, if the claim was without merit in the first place, as we have already found in this docket, the allowance on the technical rule violation presents a delemma, which the framers of the rule did not anticipate except as they provided in Article V. 3. of the August 21, 1954, agreement, wherein continuing violations are recognized, defined and limited. It provides, `A claim . . . for an alleged continuing violation .

shall be fully protected . . . as long as such alleged violation, if found to be such continues'. This is followed by a retroactive limit of 60 days prior to filing, but the rule is silent on how long in future such claims should be granted. Having found against the merits we should not reverse our decision and create an absurdity."

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

I. That there is no merit in the claim before us,

II. That a technical violation of Article V-A has been proved and must be sustained.

III. That the violation not having been found to be a violation on its merits, our allowance is limited to the period prior to the late declination and is not addressed to the substantive merits of the basic claim.

AWARD