NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes as the representative of the class or craft of employes in which the Claimants in this case held positions and the Pennsylvania Railroad Company-hereinafter referred to as the Brotherhood and the Carrier, respectively.
Board as to the stated facts will be accepted as prima facie evidence thereof. It is clear this provision contemplates the application of the same rule of damages and the same rule against penalties in enforcing contracts as are applied in civil suits generally. An award contrary to these principles would be unenforceable as a matter of law.
For the foregoing reasons, it is respectfully submitted that your Honorable Board may not properly enter such an award in this case.
It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required to give effect to the said Agreement 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 and 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 of the Employes in this case would require the Board to disregard the Agreement between the parties thereto and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take such action.
The Carrier has shown that the actions here complained of were an exercise of its recognized managerial right to abolish positions and rearrange work in the interest of securing a more efficient and economical operation of its business and that they were in no way violative of the Clerks' Rules Agreement.
Therefore, the Carrier respectfully requests your Honorable Board to deny the Employes' claim in its entirety.
OPINION OF BOARD: Organization argues in support of its claim that some duties of the abolished position were transferred to the Indianapolis Freight Station after the abolishment of the position in violation of Rule 3-C-2 (a) (1) and the remaining work was assigned to the Agent at Shelbyville in violation of Rule 3-C-2 (a) (2) because it required more than four hours per day to perform. Organization also argues in support of its claim that Carrier violated Rule 2-A-1 (d) when, prior to abolishing the position, it failed to fill the position by appointment after failing to fill it by bids on posting; Organization also notes in support of its position that Carrier has made no showing that written notice of the abolition of the position had been given to the permanent incumbent as required by Rule 3-C-1 (g). The relevance of the alleged violations of Rules 2-A-1 (d) and 3-C-1 (g) to the claim presented to us by the Organization that Carrier violated particularly the Scope Rule and Rule 3-C-2 was not made clear either on the property or in the Submission.
There was no mention at all of a possible violation of Rule 3-C-1 (g). Organization stated the issue differently in its Ex Parts Submission:
The claim as filed with the Submission does not mention Rule 2-A-1 and appears to propose no remedy which would be a specific cure for violation of that rule. If Carrier had carried out the requirement of Rule 2-A-1 as the Organization reads it, an employe would have been assigned to the position. But only 3% hours per day, according to the Carrier, was required to perform the remaining duties, the balance having been previously transferred to the Indianapolis Freight Station. We would thus be left with the identical question of proof we arrive at without considering the alleged violation of Rule 2-A-1.
Organization claims that work of the position in question was transferred to the Indianapolis Freight Station after the position was abolished and in violation, therefore, of Rule 3-C-2 (a) (1); Carrier claims that the duties taken from the position and transferred to Indianapolis were transferred months before the position was abolished. Organization claims that in any case, the time required to perform the duties remaining after the abolishment of the position exceeded four hours per day; Carrier claims, on the contrary, that they required only 3'/a hours per day. It is incumbent on the Organization as the Claimant to prove the facts on which its claim is based; this they have here failed to do. They have made assertions which were challenged by the Carrier, and have complained that Carrier refused to engage in a joint investigation, but have failed to supply evidence adequate to prove the facts needed to establish their claim as a valid one. We will therefore deny the claim.
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