NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION
EMPLOYEES
Under date of October 23, 1968, Mr. O'Connor wrote Local Chairman Shea denying his claim. A copy of that letter is attached and is identified as "Carrier's Exhibit No. 8."
Under date of December 10, 1968, Mr. Hewson, General Chairman, appealed Mr. O'Connor's denial decision to Carrier's Director of Personnel Relations, A. T. Van Wart. A copy of that letter is attached and is identified as "Carrier's Exhibit No. 9."
Mr. Van Wart replied to the Employes' appeal under date of December 18, 1968, agreeing to discuss the appeal on December 23, 1968. A copy of that letter is attached and is identified as "Carrier's Exhibit No. 10."
Carrier heard the Employes' appeal on December 23, 1968, and on December 26, 1968, Mr. Van Wart wrote the Employes denying the appeal. A copy of that letter is attached and is identified as "Carrier's Exhibit No. 11."
Under date of April 10, 1969, Mr. C. L. Dennis, International President, Brotherhood of Railway, Airline and Steamship Clerks, wrote Mr. S. H. Schulty, Executive Secretary, stating the Organization's intent to submit this dispute to your Honorable Board for adjudication. A copy of that letter is on file with your Board.
The record indicated that Claimant Driscoll was assigned as "SupervisorPrint Shop" effective February 28, 1962 (see "Carrier's Exhibit No. 12" attached, Service Record, J. F. Driscoll). The record further indicates that Claimant was made Supervising Operator-Print Shop effective January 25, 1965. On January 28, 1965 the POSITION of Supervising Operator-Print Shop was placed under Exception 4 of the Working Agreement (see "Carrier's Exhibit No. 1").
Claimant Driscoll continued as Supervising Operator-Print Shop until the close of business September 6, 1968, having been advised by Administrator-Office Services O'Connor that he was being replaced in that position at that date. (See "Carrier's Exhibit No. 3")
The Employes have filed claim alleging violation of Exception 4, Rules 2-A-9, 3-C-1, 6, 7-A-1, 7-A-2, and others, when, effective with the close of business September 6, 1968, Claimant Driscoll was removed from the position of Supervising Operator-Print Shop. The employes further demand that Claimant Driscoll be restored to the position of Supervising Operator-Print Shop and paid at the rate of that position for each day he is not allowed to hold the position. Finally the employes demand that certain named clerks (with others to be named subsequently) be paid at the rate of the job they were displaced from due to Driscoll's exercise of his displacement rights for each day they are not allowed to hold that job. In short, the employes are urging the "passed on effect" of Driscoll's demotion be applied to employes junior to him (Driscoll) who were displaced as a result of Driscoll's exercise of displacement rights. The employes also demand that Driscoll be paid at the rate applicable to Supervising Operator-Print Shop in addition to the pay he now receives.
OPINION OF BOARD: At the time of the occurrence giving rise to the claim herein the Claimant occupied position of Supervising Operator-Print Shop, which position was, by agreement, exempt from Rules 2-A-1, 2-A-2, 2-A-3, and 3-C-1 of the Agreement. Such rules are commonly referred to as
the promotion, assignment and displacement rules, and positions that are exempt from certain rules are generally referred to as excepted positions. The issue before the Board is whether the Carrier acted in violation of the Agreement when it removed Claimant from the position occupied by him effective with the close of business September 6, 1968.
We agree with the Carrier that as the right of selection of the employe to fill the position involved rests with the Carrier, it follows that the right to remove an employe from such position also rests with the Carrier. It has long been recognized by this Board that an employe may be removed from an excepted position without resort to the disciplinary and appeals procedures of the Agreement, but in order to dismiss such an employe from its service as a clerical employe, the provisions of the Agreement must be followed. See Awards 13632, 8426, 7102, 6868, 2941, among others. Based upon these holdings, which we affirm, we find that the Carrier was not in violation of the Agreement in removing Claimant from the position of Supervising Operator-Print Shop, and permitting him to exercise his seniority under the Agreement.
Both parties have referred to our Award 17293 involving the same Agreement. Each dispute must, of course, be decided on the basis of the record before the Board. It is apparent that elements were present in the dispute covered by Award 17293 that are not present herein. For instance, it was found in that case that the Claimant had not been given any reason for removal from the excepted position . In the dispute herein reason was given. In our present dispute also the Carrier has submitted evidence as to the application of Rule 2-A-9, which the Board found lacking in the dispute covered by Award 17293.
Based on the record herein, we do not find that the Agreement was violated, and the claim will 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 respec tively 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