With respect to part 3 of the Brotherhood's claim, Carrier is not aware of the purpose of a request for a "joint check" inasmuch as this was not discussed on the property and further has no support under the rules of the Clerks' Agreement.

Under the facts and for reasons set forth hereinbefore and in Carrier's submissions and briefs in Third Division Dockets CLr8768 and CL-8769, Carrier maintains that the work involved is properly performed by an Assistant Division Engineer and is not exclusively clerical work. Carrier submits that the claim is without merit and not supported by the evidence, past practice, or rules of the Clerks' Agreement. Therefore, Carrier requests the Board to deny the claim in its entirety.

This claim has been discussed in conference and handled by correspondence with representatives of the Clerks' Brotherhood.

OPINION OF BOARD: The particular claim involved here is that Carrier violated the Agreement when it assigned to an Assistant Division Engineer, a person not covered by Clerks' Agreement, certain clerical duties, covered by Agreement.

The claim was filed in behalf of Clerk Earl W. Schooner, incumbent of clerical position in the Office of Division Engineer, Tamaqua, Pennsylvania, and/or his successor: that they be compensated an additional day's pay beginning September 24, 1956 and continuing for each and every day subsequent hereto and until violation of claim outlined is discontinued and corrected.

It is the contention of Organization that Earl W. Schoener joined the employ of Carrier May 16, 1916, as a clerk-stenographer and from about September, 1919, he prepared all of the A.E.F. forms coming under the jurisdiction of the Shamokin Division of Carrier, until about 1950, when Carrier appointed an Assistant Division Engineer to the Shamokin Division and assigned to the latter the duty of preparation of A.F.E. forms, which Claimant continued to type, as he previously had done. Claimant still continued to make some of the A.F.E. forms up to date of the filing of the claim. Claimant in his statement concerning the facts which is dated October 2, 1956, and is part of the Record on the property, sets forth the foregoing and further stated: "thinking this was of a temporary nature, I made no complaint".

Organization claims that the work of preparing A.F.E. forms, comes within the Scope Rule of the Agreement of the parties, as set forth in Rule 1, Group 1, hereinafter set forth:

"Clerical employes being those who regularly devote not less than four hours per day to writing and calculating, incident to keeping records and accounts, writing and transcribing letters, bills, reports, statements and similar work, and to the operation of office mechanical equipment and devices in connection with or in lieu of such duties and work.

"Freight Claim Investigators, Salvage Agents, Car Agents, Car Distributors, Station Masters and Assistant Station Masters. Tele-

type Operators in performance of clerical work, Ticket Clerks, Information Clerks, Nurses. Collectors other than train collectors, Wharf masters and Assistant Wharfmasters, Crew Dispatchers, Car Markers, Weighmasters and Weighers, Storekeepers, Section Stockmen and Stockmen, Shippers and Receivers, General Foremen, Foremen and Assistant Foremen, Freight, Material and Tie Checkers and Tallymen, Receiving and Delivery Clerks and others performing similar work."

It is claimed that this work is clerical work within the Scope Rule and that this was recognized by Carrier by bulletining positions for this particular work by Clerks, following agreement between the parties.

Organization claims Rule 13(b) of the Agreement has been violated, which Rule reads as follows:

"(b) Positions or work within the scope of this agreement belong

to the employes covered thereby and nothing in this agreement shall'

be construed to permit the removal of positions or work from the

application of these rules except through negotiations."

and Organization claims the seniority rights of other clerical employes are affected.

Organization further claims that the statement of Division Superintendent in the Joint Statement of Facts proves that the Assistant Engineer at Tamaqua, Pennsylvania, is doing clerical work, said statement reading as follows:

"Assistant Division Engineer was assigned to staff of Division Engineer, Tamaqua, Pa., to assist with supervisory work in that department, including work of preparing and extending A.F.E. figures in pencil."

"The work of preparing A.F.E. figures is work associated with Division Engineer and proper for him or his Assistants to perform. The clerical work in connection therewith, such as typing and compiling finished report is performed by clerical positions established for this kind of work, therefore claim is denied."

Carrier denies the claims of Organization and in its Ex Parts submissions and its presentation here, relies in a major part, to portions of Dockets 8768 and 8769, being Awards 9578 and 9579. respectively, of this Board. Organization objected to the inclusion of these Dockets and exhibits contained therein on the ground that this question was not submitted on the property and that parties cannot in their Ex Parte submissions raise new issues and that Circular No. 1 of this Division is determinative of this question.

Carrier has cited nine Awards, 3130, 6228, 8008, 8300, 8105, 8106, 8107, 8215 and 8119 in support of its contention. We have carefully examined all of these Awards and the majority of them involved re-submission of the same facts: Award 8300 had only a brief quotation from evidence in another Award and was used by Referee in evaluating evidence in 8300: this Award does not-

lend any support to Carrier's position. Award 8119 involved a case where one party, without objection, made previous Award and Docket a part of its submission and the other made files in other claims a part of its submission, both without objection.

A like situation has arisen in connection with the inclusion in Carrier's Ex Parte submission of an excerpt from letter from H. K. Modery. This was taken from Docket CI-8769, Award 9579, and is not being considered. Likewise, Organization has attached to one of its Ex Parte submissions letters which had not been considered on the property. None of these letters, nor Docket CL-8768, Award 9578 will be considered in a determination of the issues herein.

Carrier has also raised the point that claims are barred when not presented timely. An examination of the cases cited, discloses that, they involved delays in progressing cases after final determination by Carrier. In all of these, except Award 9189, this defense was raised on the property. Award 9189 involved failure to comply with Article V of National Agreement and is not in point.

Carrier has also raised question of unreasonable delay in progressing claims. Carrier cited Awards supposedly in support of this Claim: an examination of the Awards discloses that claims were denied on the merits or lack thereof.

In connection with these claims by the Carrier it has been noted herein that this was not raised on the property, but in addition it should be stated that such claim is in effect, an attempt to interpose a defense of laches. Notwithstanding the assertions of Carrier, it is a continuing claim and the delay in presenting it, has not been shown to have prejudiced the rights of Carrier. Award 6115.

Carrier asserts that in 1947, it established position of Assistant Division Engineers "for the purpose of assisting the Division Engineer with his supervisory work, which included work an A.F.E. forms previously performed by the Division Engineer." It is conceded by Organization that Clerks would not be required to leave their offices to secure data or other information necessary for the preparation, correction or extension of A.F.E. forms: that after such data has been compiled their duty then is to prepare, extend and complete the forms from data furnished.

Carrier further contends that the work on A.F.E. forms has not been exclusively performed by Clerks: and that for many years it has been part of the duties of Division Engineering officers to compile necessary data and prepare forms.

The record is not as complete as it might be. There is nothing in the Record to indicate just what Engineering officers have, in addition to compiling data, prepared the A.F.E. forms, outside of the statement of Claimant Schoener that commencing "about 1950, when an Assistant Division Engineer was appointed to the Shamokin District and to whom was assigned the duty of preparation of A.F.E. forms". Outside of this, the showing is practically conclusive that the Clerks, for years have performed this work.

There is little doubt in our mind that the Clerks' Organization for many years had performed the work in the preparation and extension of items, and typing required for completion of A.F.E. Forms. Now such work, according

to the Division Superintendent, as set forth in the Joint Statement of Facts, has been assigned to Assistant Engineer, Tamaqua, Pa., "to assist with supervisory work in that department, including work of preparing and extending A.F.E. figures in pencil", leaving to the Clerk the typing only of such forms.

Possibly the fact that Organization did not file claim until 1956, might lead to an inference that there might be some question in its mind as to the merit of the claim. Be that as it may, it could only be an inference and even that may be explained away by Claimant Schoener's statement in the October 2, 1956 letter, which is a part of the record, wherein he said "Thinking this was of a temporary nature, I made no complaint. However, I still make up some of the A.F.E. forms".

Carrier has raised the question of Memorandum of Agreement between the parties, dated August 19, 1946, which reads as follows:

"MEMORANDUM OF AGREEMENT

Between

READING COMPANY

And

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND

STATION EMPLOYES

s rt r ~ ~ w r

"When it becomes necessary through the reduction of work items or performances to reduce force or abolish positions, the following will apply:

"1. Employes whose positions are to be abolished shall be given as much advance notice as possible, in writing, and not less than forty-eight hours; at the same time, bulletin will be posted in the seniority district, listing the positions abolished, using form shown on Page 51 of the Clerks' Agreement.

2. Employing officer or supervising official will notify Local and Division Chairmen, in wilting, at least five calendar days in advance of abolishing any position. If requested to do so by Local or Division Chairman, the employing officer or supervising official will furnish full details regarding the proposed reassignment of the remaining duties, in accordance with the rules.

The full notice of five days, as provided in the foregoing, will not be required in instances where there is a temporary cessation of work caused by conditions beyond the control of the Management, and all work in such instances is temporarily abolished or discontinued, but the Division or Local Chairman will be notified promptly in order to avoid any violation of rules in effect.

3. Any remaining duties of the position abolished will be re-assigned to other scope employes at that location or office. In cases where there is no remaining position under the Clerks' agreement at the office or location where the work of the abolished position

is to be performed, the remaining duties of the scope position may be re-assigned to the remaining non-scope position or positions at that location or office; providing that less than four

hours work per day of the abolished scope position remains to be performed, and that such work is related to the duties of the non-scope position.

4. If the employing officer or supervising official is notified by the Local or Division Chairman before the effective date of the abolishment of the position of any disagreement concerning the reassignment of the remaining work items, an immediate report will be made to the head of the department and prompt arrangements made for a joint check between a representative of the Management and the Organization. In such instances, the position will be continued until the joint check is completed and the Organization representative notified of the decision of the Management.

5. The absence of any such protest prior to the date the position is abolished will be indicative of concurrence by the Organization, except:

(a) If it later develops that the re-assignment of remaining duties or any other condition differs from that explained in advance by the employing officer or supervising official or as mutually agreed upon between Management and Organization representatives, claim may be filed and will be considered on its merits in accordance with the rules.

"This Memorandum of Agreement shall be effective as of August 19, 1946, and shall continue in effect in accordance with the provisions of the amended Railway Labor Act.

'Signed at Philadelphia, Pa., August 12, 1946."

We have examined the Awards cited by Carrier and do not believe the claim here is affected thereby.

Carrier contends that this claim is not a continuing claim as originally presented to Carrier. We hold that it is. As it is presented to this Board, it is a continuing claim. The subject matter of the claim-the claimed violation of the Agreement has been the same throughout its handling. The relief demanded is ordinarily treated as no part of the claim, and consequently may be amended from time to time, without bringing about a variance that would deprive the Board of the authority to hear and determine it. No prejudice to the Carrier appears to have resulted in the present case. (Awards 3256, 6115).

The record lacks many things that might have been helpful: there is no evidence as to the amount of time consumed by Assistant Division Engineer in the preparing and extending A.F.E. figures in pencil. The statement by Claimant Schoener, dated October 25, 1956, states he was still making up A.F.E. forms and that he was continuing to type the forms prepared by Assistant Engineer.

We find no justification for allowing this claim for more than the three hour minimum, at pro rata rate, provided by Rule 9(a) (b) of the Agreement for regularly assigned employes notified or called to perform work between their regular work periods.

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, find 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 violated.

AWARD