`°sea Award No. 14728
 Docket No. CL-14686


THIRD DIVISION

(Supplemental)






BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES


CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GIr5506) that:




EMPLOYES' STATEMENT OF FACTS: On February 5, 1963 Carrier's Assistant Comptroller, Mr. M. J. Lesh, called Local Chairman, C. I. Burman into his office and discussed with him a desire to create two positions of Accountant at a rate ~of pay of $20.00 per day which rate was $1.06 per day less than the lowest prevailing position of this kind and class in the seniority district involved; with the assertion that they would be training positions to assist the assignees to learn all phases of accounting work. Local Chairman Burman informed Mr. Lesh that such an understanding should be handled with the General Chairman. When contacted the General Chairman informed Mr. Lesh that we could not accept this reduced rate unless he would write a letter as follows:





Mr. Lesh promptly agreed to furnish us with a letter agreeing to the above two understandings and posted the Bulletin No. 7 advertising the two positions, Employes' Exhibit No. 1(A), however, he included thereon a requirement that applicants must take a Level 1, Accounting Achievement Test








                      G. E. Morgan

                      Director of Personnel

                      & Public Relations


    m:s"


Rule 28 of the agreement between the parties, a copy of which is on file with your Board, states:

    "Rule 28-New Positions


    The wages for new positions shall be in conformity with the wages for positions of similar kind or class in the seniority district where created."


Article V, 1(a) of the agreement dated August 21, 1954, provides, in part, as follows:

    "All claims or grievances must be presented in writing by or on behalf of the employee involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claims or grievance is based." (Emphasis added.)


    (Exhibits not reproduced.)


OPINION OF BOARD: At the time the Carrier established two new "Accountant" positions at $20.00 per day the following positions were in existence in the seniority district:

    Accountant $21.06 per day Price Clerk $20.55 per day


      " 21.06 " " A.A.R. Clerk 20.99 " "

      " 21.31 " " Material Clk. 22.02 " "

      " 211.33 " " Statistician 22.20 " "

      " 21.55 " " Hd. A.A.R. Clerk 22.52 " "

      " 21.55 " " Statistician 23.38 " "


      " 22.02 ""


The Organization contends the Carrier violated the Agreement when it established the two new "Accountant" position at $20.00 per day, because

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the new positions are comparable to accountant position rated at $21.06 per day.


The Carrier contends that the claim be dismissed on procedural grounds because it was initially designated by Employes as a protest rather than a claim and was not identified as a claim until seventy five days after the dispute arose.


The Carrier further contends that the claim be dismissed on merits for the reason that the two new positions are not of a similar kind or class to other accountant positions in the seniority district. It therefore concludes that the rate of $20.00 per day is just and equitable.


The contention that the claim be dismissed on procedural grounds can not be sustained, for the reason that the Carrier did not raise this as a claim in accordance with the provisions of the Agreement. Additional support for denial of Carrier contention on procedural grounds is founded on the fact that the claim is one of continuing violation. Hence, these Article V issues are not properly before this Board and will not be considered.


As to the merits of the claim, the record reveals that the Organization offered to accept the proposed rate of $20.00 per day for the new positions on condition that the Carrier agree in writing to the following:


    1. That in any case of any reduction in force in accountants positions, these two positions would be first abolished, and


    2. That the rate of these two positions would not be cited to prejudice the position of our Organization on any case involving accountant work.


The Carrier failed to agree in writing to the above conditions and it must therefore be the conclusion that the rate of $20.00 per day was established unilaterally, without agreement or negotiation.


Rule 28 does not sustain the Carrier's action in establishing the rate of the two positions in the absence of agreement with the Organization.


The record reveals that the duties of the two newly created positions encompassed assisting higher rated clerks and accountants as well as lower rated personnel. In such case, Rule 27 would govern the rate to be paid to the employes of the two positions.


It must be the conclusion that the Carrier improperly rated the two positions of accountants at $20.00 per day and the claim must therefore be sustained.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


    That the parties waived oral hearing;


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;


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 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
    That the Agreement was violated.

                  AWARD

    Claim is sustained.


              NATIONAL RAILROAD ADJUSTMENT BOARD

              By Order of TIU,RD DIVISION

              ATTEST: S. H. Schulty


                  Executive Secretary

Dated at Chicago, Illinois, this 2nd day of August 1966.

 Keenan Printing Co., Chicago, Ili. Printed in U. S. A.
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