The Carrier has shown that the present dispute was not handled on the property in accordance with the applicable rules of the Agreement governing the usual manner of handling claims and grievances; and, therefore, under the Railway Labor Act is not a proper one for handling by this Board and should be dismissed. The Carrier also has shown that none of the actions complained of which form the basis of the claim were in way violative of the Clerks' Rules Agreement and that the Claimants are not entitled to the compensation requested in the claim. Therefore, the Carrier respectfully submits that your Honorable Board, if it does not dismiss the claim, should deny it in its entirety.
OPINION OF BOARD: In a joint statement of facts, the parties agree that prior to November 12, 1957 Claimant Poth was regularly assigned to Clerical Position K-16-D at Crestline, Ohio with certain assigned clerical duties. On November 8, 1957 a part of these assigned duties amounting to about two hours work was transferred to other clerks at a different office at Crestline.
On November 11, 1957, Poth was notified "that his position was being transferred with all its duties" to Lima, Ohio (within the same seniority district). Poth declined to transfer with his position. Effective November 15, 1957 Clerical Position K-35-D at Lima, Ohio was abolished and the duties were assigned to Clerical Position K-16-D which had been transferred from Crestline.
On December 4, 1957 Clerical Position K-16-D was advertised with location at Lima with the following primary duties:
The parties also jointly agree that "ordering track material, keeping record of fuel, oil, gasoline and motor oil, making car reports and MW-12 Forms, weekly and monthly reports concerning track work progress and keeping record of all cars for Maintenance of Way Department at Crestline is done by the Track Supervisor at Crestline, Ohio," however, they disagree whether this work was transferred to the Track Supervisor from the clerk's duties at Crestline, as the employes contend, or whether the Track Supervisor did this before as well as after the transfer of K-16 duties from Crestline, as contended by the Carrier.
While a comparison of the K-16 duties before and after the transfer of the position from Crestline to Lima, shows a general similarity of job con- 13089-2,6 9L6
tent, it is evident that the duties vary substantially in detail. The employes contend, therefore, that Rule 3-C-2 was violated because the Carrier removed and reassigned to other positions not covered by the Agreement at Crestline the bulk (more than five hours a day) of the work from the K-16-D position at Crestline, then transferred the position to Lima where the Carrier abolished the K-35-D position and assigned its work to position K-16-D. The employes conclude that the Carrier violated Rule 3-C-2 because it did indirectly what it could not do directly.
We are not sure precisely what the employes think the Carrier did indirectly what it could not do directly because their position changed during the processing of the claim.
The claim states that the Carrier violated the Agreement when it reassigned certain duties of the K-16-D position at Crestline and "allegedly" transferred the position to Lima where it then abolished position K-35-D.
In discussing Rule 3-C-2, the only substantive rule pursued by the employes throughout the proceeding, the employes assert initially "that subsequent to the abolishment of position K-35-D at Lima, Ohio, the work of the abolished position which remained to be performed was not assigned in compliance with the meaning and intent of Rule 3-C-2 (a)." To this the employes added: "Position K-16-D was not abolished."
Based on this position it would seem the employes contend that the Carrier did indirectly what it could not do directly by abolishing position K-35-D and not reassigning work at Lima, as required under Rule 3-C-2. While there is evidence that the Carrier jockeyed some of the K-16-D duties to fill out an assignment at Lima, there is no evidence that the K-35-D duties were not reassigned as required by the Agreement when the position was abolished; hence, as to this contention, it does not seem the Carrier did indirectly what it could not do directly.
In the referee hearing on this case the substance of the employes' position was that the K-16-D position was abolished "in effect" at Crestline and that the remaining work there was improperly distributed in violation of Rule 3-C-2.
Aside from the fact that this new argument has no standing before this Board because it was not presented on the property, it flies in the face of the specific statement by the employes that the K-16-D position was not abolished and the statement o1 facts, agreed to by the employes, that the position was transferred to Lima. As to this argument, therefore, it does not seem the employes have made a case that the Carrier violated Rule 3-C-2 by doing indirectly what it could not do directly.
It may be, as the employes charge, that the Carrier "manuevered" in such a way as to take advantage of existing rules to do indirectly what they could not do directly. Our duty, however, is to interpret those rules as they apply to the claim and determine if the employes have met their burden to show how those rules were violated. In Awards 12108 (Seff), 12420 (Coburn) and 12809 (Dolnick), involving very similar circumstances, the Board did not think that the burden had been met. We do not think it was met here.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: 13089-.27 917