It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required by the Railway Labor Act to give effect to the said Agreement, which constitutes the applicable Agreement between the parties, and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, First, subsection (i) confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreement between the parties to it. To grant the claim in this case would require the Board to disregard the Agreement between the parties and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to the Agreement. The Board has no jurisdiction or authority to take any such action.
The Carrier has established that there has been no violation of the applicable Agreement in the instant case and that the Claimants are not entitled to the compensation which they claim.
Therefore, the Carrier respectfully submits that your Honorable Board should deny the claim of the Employes in this matter.
OPINION OF BOARD: In a Joint Statement of Agreed Upon Facts, the parties set forth the following: Claimant, W. P. McKinney, occupied clerical position Symbol No. G-242 in the office of Assistant Train Master, Pitcairn, Pennsylvania from October 1, 1959 to November 30, 1959. Prior to July 17, 1959, in the same office, A. G. Davis held a position of Clerk, Symbol No. G-210, first trick. His duties included the handling of engine and train service cards. Effective July 17, 1959, Position G-210 was abolished; and the remaining duties were assigned to the clerks in the Assistant Train Master's office. On July 20, 1959, Mrs. Marion Adams, incumbent of position of Clerk, Symbol No. G-38, was transferred from Assistant Road Foreman's office to the Assistant Train Master's office; and she was assigned the duty of handling engine and service employes time cards. Clerical position G-210 was restablished on July 30, 1959, and the duties were returned to this position. Mrs. Adams remained in the Assistant Train Master's office. On August 5, 1959, clerical position G-210 was again abolished; and the remaining duties were assigned to the clerical positions, including G-38, in the same office. Effective August 17, 1959, position G-38 was transferred to its original location.
The Brotherhood makes claim that Rule 3-C-2 was violated when Carrier abolished clerical position Symbol G-210 and assigned a part of the remaining duties to an employe who was not employed in the same office. It requests compensation for W. P. McKinney and for all other employes affected by the abolishment of this position.
At the outset, Carrier requests that the claims be barred for non-compliance with the provision of Rule 7-B-1 (a). It maintains that the claims 13064-21 575
were not presented to the Claimant's immediate supervisor within ninety days from the date he received his pay checks for the pay periods covering July 17 and August 15, 1959. Since Carrier did not raise this issue at any time during the handling of the case on the property, it is improper to consider it now; and the dispute is before this Board on its merits.
In respect to the questions of the violation of Rule 3-C-2, we find that this rule does not contain any provisions restricting the right of Carrier to abolish positions. It sets up the procedure to be followed in assigning remaining duties at the same location after the abolishment of the position. When position G-210 was abolished July 17th, the remaining duties were properly assigned to the clerical positions because they were left in the same office. This action was, therefore, in accordance with the rule.
We find no restriction in the Agreement which prohibits Carrier from transferring position G-38 from the office of Assistant Road Foreman of Engines to the office of Assistant Train Master. When the employe of Position G-38 became part of the clerical force of the office of Assistant Train Master, Carrier could properly distribute clerical duties of that office to this clerk. Thus, the assignment to Mrs. Adams of handling engine service employes' time cards was in compliance with Rule 3-C-2 for these were duties given to a clerical position on the same location. Later Carrier's decision to transfer position G-38 together with the incumbent Mrs. Adams was within its rights since no rule of the Agreement denies this prerogative.
In view of Carrier's compliance with Rule 3-C-2, we cannot assume that Carrier deliberately attempted to circumvent the rule by transferring position G-38 from one office to another and back again so that the Clerk to the Assistant Road Foreman could absorb a part of the remaining duties of the abolished position. As in Awards 12420 and 12809, we take the position that the controlling principle in determining this dispute is not the intent or reason which led Carrier to make the changes but the question of whether or not the rules were complied with.
Carrier did not violate Rule 3-C-2 and hence, the claims are without merit.
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