STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Colorado & Southern Railway, that:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an agreement by and between the Colorado & Southern Railway Company, hereinafter referred to as Carrier, and its employes represented by The Order of Railroad Telegraphers, hereinafter referred to as Employes and/or Organization, effective October 1, 1948, including changes and agreed-to interpretations to the date of reissue, January 1, 1955, with rates of pay effective December 3, 1954, and as amended. Copies of said agreements are available to your Board and are by this reference made a part hereof.
At page 38 of said agreement, Under Rule 39 - Rates of Pay, are listed the positions existing at Clayton, New Mexico, on the effective date thereof. For ready reference the listing reads:
the fact that the highest officer designated by the Carrier had previously and properly declined the original claim evolving from this same set of circumstances and that his (District Chairman's) attempted revival thereof on the local level was not only highly irregular but wholly improper under provisions of Article IV of Appendix No. 3 of the Telegraphers' Agreement. (See Carrier's Exhibit "H").
On August 22, 1964, the nine month period for taking the case to the Board or be barred from further progression, as stipulated in said Article IV of Appendix No. 3, duly expired and the Carrier wrote the General Chairman and so apprised him (See Carrier's Exhibit "I").
On the basis of the foregoing facts, the case before your Board is not the case handled under provisions of the Telegraphers' Agreement on the property of The Colorado and Southern Railway Company.
OPINION OF BO.\RU: Procedural questions raised by Carrier must be considered at the outset. Carrier contends that the proceedings before the Board were instituted untimely. Carrier's letter of September 16, 1964 to the General Chairman, in thi, rekard, reads as follows:
Carrier contends further that the revision of the claim, which will be discussed below, constituted a new claim which was not filed until seven months after the event giving rise to the claim and therefore was urubimely under Article IV and should be dismissed. Pctitionor contends that it had a right to amend its claim on the property. It contends that its amendment does not constitute a new claim and that the claim was progressed in a timely fashion.
It is clear from the record that alter the claim, as it was originally filed, was denied, on November 22, 1963, by the Assistant to Vice President, the highest officer designated to receive appeals Petitioner revised its claim and on April 24, 1964 submitted it to the General Superintendent, the first step in the grievance procedure, who responded on May 13, 1964, stating, in effect, that as he had already denied the claim he did not have to do so again. He also pointed out that the handling of the claim was irregular and aws in violation of Article IV.
The record clearly reveals that the original filing on September 17, 1963, was followed by timely and proper handling culminating in the denial by the highest officer on November 22, 1963 and his reiteration of such denial on February 24, 1964, following a conference on that date with the General Chairman. Thereafter, on April 24, 1964 the District Chairman submitted the amended claim to the General Superintendent stating in part "F * ·· we art amending our claim ^` - :" The amendment changed the damages sought from "a day" to "a call" from the b-ginning of the alleged violation and substituted the name of a claimant in place of one on the, claim as originally filed. As indicated above, the General Superintendent replied on May 13, 1964. Ills declination w^1)s rejected by the District Chairman. The General Chairman,
on une 4, 1964 advised the Assistant to Vice President igrored this letter. Thereafter, on August 14, 1964 Petitioner filed its Notice of Intent with this Board.
Adherence to the rules governing processing of claims is essential to the expeditious handling of claims before this Board. However, the interpretation of these rules should not be so technical as to deny the Board the opportunity to consider the. merits of cases which, while inartfully handled, are progressed within the spirit of the rules. In this connection the Board has held that amendments on the property, which involve variations in the amount of reparations sought, where the subjact of the claim remains the same and the Carrier is not misled by the amendment, do not serve to invalidate claims. Awards 82:56, 12465 and others. We are persuaded that the anr;ndment herein raised on the property was not fatal to the claim.
We also find that the amendment of the claim was not a new claim as contended by Carrier. Thus, we further find thtit the claim was not filed seven months after the event giving rise to it.
The record clearly shows that the Notice of Intent, dated August 14, 1964, was filed within nine months of the derial of Nov;·mber 22, 1904 and was therefore timely.
As we 'find that the claim was handled within the time limits of Article IV we shall proceed to consider the m;,rits.
We have considered the various cases cited by the parties and the record in this matter. We find that Carrier properly abolished the position of third tick Telegrapher on September 15, 1963. The hours of that trick were from 11:59 P. M. to 7:59 A. M. The third trick was the shift on which the disputed head end work on Train No. 7 was performed by Claimant Baker when the train arrived at 4:21 A. M. After the abolishment Carrier rearranged the hours of the remaining employes. Thus, the Agent-Telegraphor's hours became 8:30 A.M. to 4:30 P. M., Monday through Friday and the hours of Claimant-Telegrapher Baker became 7:00 P. M. to 3:00 A. M., Wednesday through Sunday. Both were rclievcd by Claimant-Telegrapher Trolinder.
As there was no Telegrapher on duty after September 15, 1963 when train No. 7 arrived at 4:21 A. M., the station portion of the disputed work was performed by a traimnan pursuant to an agreemoont with Carrier dated August 24, 1950.
The question to be decided is whether Claimants were entitled to a call when the only work to be performed was head end work on Train No. 7. This work is only one of the duties of Telegrapher. It is not, as the record shows and as the classification title would indicate, the primary function. We are persuaded, in the circumstances of this case, Petitioner may prevail only if it proves that this work has been reserved to it exclusively on a system-wide basis.
The Scope Rule being general in nature and the work nut bang specifically listed in the Rule, it is well settled that the burden of proving that the work has been, by custom and practice reserved exclusively to Employes, rests with Petitioner. We find that on this record Petitioner has not carried its burden. In awards of this Board involving the same parties there have bean previous findings that such work is not reserved exclusively to Petitioner. Awards 15633, 8261.