Mr. R. J. Hays be paid for 40 )ours at the rate of the difference between the rates of pay of Forem;on and Assistant Foreman account his filling the vacancy of such higher position for the dates April 14, 1969 to April 18, 1969, inclusive.
"RULE NO. 13
Advertising Positions
(a) New positions and vacancies of thirty (30) calendar days' or more duration will be advertised for a period of five (5) days in agreed-upon places and filled by the senior qualified employe who bids for the position. The successful applicant will be awarded the position within fifteen (15) days from the date the position is bulletined.
(b) Vacancies of less than thirty (30) days' duration will be considered temporary and may be filled by the Management without regard to these rules.
(c) Where it is apparent to the Management before the expiration of ten (10) days that an employe does not possess the necessary ability and fitness to permit him to qualify, he will be removed from the position prior to the expiration of the ten (10) day period. An employe failing to qualify within ten (10) days will within five (5) days return to his former position, unless it has begin filled by a senior employe by bid or displacement, in which event he will exercise displacement rights under the provisions of Rule No. 8.
The grievance was progressed under the existing grievance procedure between the Carrier and the Organization. On July 9, 1969, this grievance was declined by Mr. w. H. Martin, Superintendent of the Signal and Telephone Department. This- letter of declination is submitted as Carrier's Exhibit "A."
On August 26, 1969, this grievance was appealed to the office of the Director Labor Relations. This is attached hereto as Carrier's Exhibit "B."
In a letter dated October 23, 1960 the above grievance was declined by the office of the Director Labor Relations. This letter is submitted as Carrier's Exhibit "C." The office of the Director Labor Relations is the highest office on this property designated to handle labor matters.
As the Carrier understands the employe's claim, they are contending that while Foreman R. R. Boyd was on vacation the week of April 14, 1969,
OPINION OF BOARD: It is so well settled as to require no citation that this Eoaxc°., in adjudicating disputes, may not consider issues or defenses not raised by the parties in the handling of the dispute on the property.
In the dispute herein, in the initial presentation of the claim, the Petitioner contended:
The correspondence covering the handling of the dispute on the property contains no refutation of the above contention.
In its submission the Carrier has raised a number of defenses to the claim, which the Petitioner characterizes as "new issues" not properly before the Board. In line with the principle outlined in the first paragraph hereof, the Board may not properly consider the defenses raised for the first time by the Carrier in its submission.
Based strictly on the record of the handling on the property, the Board finds that the Petitioner made a prima facie case, which was not refuted by the Carrier. The claim will be sustained on that basis.
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;