THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
The Carrier further submits that obviously the Claimant was so properly assigned as the junior extra man admittedly qualified to perform service at "RH" Block Station. Therefore, his status after such arrangement was that of a regular employe and, as such, he is not entitled to payment of the expenses requested.
On the other hand, it is equally obvious that the Employes have presented no tangible evidence, valid or otherwise, to support their contention that Claimant was improperly assigned. Therefore, they have clearly failed to assume their required burden of proving that the Claimant is entitled to the requested payments. In other words, the Employes have failed to show that the Claimant was improprely assigned under the specifically applicable provisions of Regulation 1-C-1(c) and, therefore, their claim herein is clearly without merit.
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, 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 Agreements 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 any such action.
The Carrier has shown that Claimant was properly assigned under the provisions of Regulation 1-C-1(c) to a regular position of Block Operator at "RH" Block Station and, therefore, is not entitled to the expenses requested.
Therefore, the Carrier respectfully submits that your Honorable Board should deny the claim of the Employes in this matter.
OPINION OF BOARD: A position of Block Operator was bulletined as a temporary position on January 15, 1959. No bids were received for the position and Claimant was assigned to it on February 2, 1959. There was an Extra Block Operator within the seniority district who was junior to Claimant, but he was not qualified at "RH" Block Station. Claimant was qualified and had been working there at the time of his assignment to "RH."
The claim presented is a request for mileage expense in traveling to and from the assignment for the period January 15, 1959 through May, 1959. It is alleged by Petitioner that Claimant should not have been assigned to this 13985-34 308
position, and Carrier, by not assigning the junior Group 2 employe to the position, violated the terms of the applicable agreement between the parties, thereby placing Claimant in the position of being an extra employe entitled to travel expenses.
It is not disputed that the employe who was junior to Claimant was a Group 2 employe, nor that he would have needed "posting" time to learn the duties and qualify for work at the "RIP' Block Station.
We are of the opinion that the language of the quoted rule covers the instant situation. Because it was not disputed that the employe junior to Claimant would need "posting time" to qualify at the "1111" Station, we find Claimant was the junior qualified Group 2 employe as was contemplated by Rule 1-C-1(c). Carrier did not violate the terms of the agreement by assigning Claimant to the position in question.
Previously Carrier had voluntarily paid Claimant travel expenses for a period prior to January 15, 1959. The effective date of Claimant's correct assignment to the position was February 2, 1959. We find that the portion of the claim which is for the period prior to February 2 should be sustained and the portion which is subsequent to that date should be denied.
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
Claim sustained in part and denied in part in accordance with above Opinion.