(Brotherhood of Railway, Airline and Steamship
 ( Clerks, Freight Handlers, Express and
 ( Station Employes
 PARTIES TO DISPUTE:
 (George P. Baker, Richard C. Bond, and Jervis Langdon,
 ( Jr., Trustees of the Property of
 ( Penn Central Transportation Company, Debtor

(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularlv Rules 2-A-1, 3-C-1, 3-C-2, 4-E-1, 4-F-1, when position of Chief Clerk, Symbol F-166, Pier 1, Canton, Baltimore, Maryland, Chesapeake Division, Eastern Region, was abolished, effective February 18, 1970.

 (b) L. W. Doyle, clerk, be allowed the difference between the rate of his position, $621.14, and $681.51, rate of position, Symbol F-166, beginning February 18, 1970,
(c) Arty other employe who was affected as a result of this sharp practice be allowed monetary loss.

 OPINION Cr BOARD: Claimant, the senior qualified employee, claims the dif
 ference between the rate of his position, $621.14, and
 the rate of the Chief Clerk position, Symbol F-166, contending that the Car
 rier violated the Agreement in making a paper abolishment of the Chief Clerk
 position while in fact transferring work of this position to a junior employee
 whose position was then rerated, without the title but with the duties, pre
 rogatives and rate of pay of the Chief Clerk.

 The instant claim was progressed on the property to the Carrier's Director, Labor Relations, the chief operating officer of the Carrier designated to handle such disp




                    Docket Number CL-20317


              "From the period during October after Santoro was elected and January 1, 1970, when he left Position F-166, the Agent (P.H. Cruciano) was trying to establish a 'P' personal appointment to F-166, but the Union would not the Agent wanted to give this appointment to one of the Junior Clerks (W.D. Stambaugh) and the Union wanted the Senior Qualified employe to have the appointment, thus, after all efforts were exhausted to come to an agre the union representative A. P. Santoro, Sr., then Division Chairman, that he (the agent) was going to give the job to Stambaugh his own way and abolish F-166. The agent kept his threat to the union, which resulted in this claim. The agent further stated that after he abolishes F-166, he will increase the rate of F-187 by re-study and get the same result without the union and without advertising any position.


              The union representative Santoro, advised the Agent that in accordance with our Rules Agreement Position F-166 had to be advertised and awarded to the Senior Qualified Bidder and Agent (Cruciano) did not agree but instead, Clerical Position F-166 (Head Clerk) located at Canton Pier 1, Baltimore, Tour of duty 7:30 A.M. to 4:00 P.M., rest days Saturday and Sunday, was alledgedly abolished effective with close 18, 1970.


              On February 19, 1970, W. D. Stambaugh, incumbent of Position F-187 at the same location, and even prior to this, to be exact on January 1, 1970, was moved to Position F-166 as Head Clerk and performed the duties of F-166 (Copy of bulletin attached as Exhibit A.)


              W. D. Stambaugh's Position F-187, effective January 1, 1970, was filled by an Extra Clerk, which continued until February 19, and beyond.


              Position Symbol F-166 was eliminated on paper but not in fact. The salary of Position F-166, which was the highest rate in the office, was eliminated and the same position and or work was still in existence at a lower rate, now under the disguise of Symbol F-187, being worked by W. D. Stambaugh. Subsequent re-study was asked for by W. D. Stambaugh to make good Agent's plans. New rate was eventually produced which equaled that of F-166 which was allegedly abolished,..."


a
                    Award Number 20384 Page 3

                    Docket Number CL-20317


        The Organization contends that the Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rules 2-A-1, 3-C-1, 3-C-2, 4-E-1, and 4-F-1. Rule 4-F-1 is of immediate interest, reading:


              "Established rates of pay, or positions, shall not be discontinued or abolished and new ones created covering relatively the same class of work, which will have the effect of reducing rates of pay or evading the application of these rules."


        The record before us discloses the fact that the Carrier maintained at Pier 1, Canton, a force o on its operations at this Marine Terminal, and that Carrier transferred to Clerk Stambaugh the following duties of the Chief Clerk's position:


              "Supervise clerks and chauffeurs at Canton and other stations under the Agent's jurisdiction;


              Handle extra clerks' list, assigning personnel to clerical and chauffeur vacancies;


              Check and approve contract labor bills;


              Compile contract budget volume figures and estimate same for future months for budget purposes;


              Check and prepare AD 9728 far all invoices presented for pest;


              Maintain record of extra clerks' assignments;


              Maintain vacation schedules."


        The record also shows that with the Carrier's transfer of work from the Chief Clerk position F-166, three other clerks positions remained in addition to Stambaugh's to "Arrange for the bulletining of vacancies; Prepare water bills for vessels taking on water; Type list of employees organization for all employees under the jurisdiction of the Agent; Check, order and receive postage stamps for all stations under Agent's jurisdiction; Prepare MM-3, MM-154, and M-254 requisition orders." (2) "Prepare daily time sheets and maintain time cards for all employees under the following Responsibility Centers:***; Prepare CT 601 statistical figures on a daily basis." (3) "Handle all mis-routed cars."


              The Carrier, nevertheless, denies any "sharp practice", stating:


i
 .i
              Award Number 20384 Page 4

              Docket Number CL-20317


        "It is the Carrier's position that the position of Chief Clerk, Symbol F-166, at Pier 1, Canton, Baltimore, Maryland, was properly abolished, effective Febru in strict accordance with the clear and unambiguous provisions of Rule 3-C-2 (a) (1) of the applicab which reads as follows:


              'Rule 3-C-2 -- Assignment of Work


              (a) When a position covered by this Agreement is abolished, the work previously assigned to such position which remains to be performed will be assigned in accordance with the following:

              (1) To another position or other positions covered by this Agreement when such other position or other positions remain in existence, at the location where the work of the abolished position is to be performed."'


The Agreement of the Parties expressly recognizes in Rule 3-C-2 the right of the Carrier to abolish positions and to assign the work previously assigned to such abo limitations. The Agreement also expressly commands that "established rates of pay, or positions, shall not be discontinued or abolished and new ones created covering relatively the same class of work, which will have the effect of ...evading the app agreed that such power shall not be exercised in a manner that "will have the effect of reducing rates of pay or evading the application of these rules". The problem before this Board, accordingly, is whether the statements of fact presented by the Organization on the property and before this Board establish "the effect of reducing rates of pay or evading the application of these rules."

 On the basis of the facts of record, this Board is convinced that the Agent desired to sake the F-16 with less seniority than Claimant, and that the Agent's design and actions in abolishing the F-166 position and reassigning the work of that position to the junior clerk, as indicated above, and having the junior clerk's position then re-rated equiva to advertise the position which he abolished so that Claimant, the senior qualified clerk, would not be able to obtain such assignment, were all facts and circumstances which produced "the effect of reducing rates of pay or evading the application of these rules."
                      Award Number 20384 Page 5

                      Docket Number CL-20317


        We have carefully considered and evaluated the Carrier's contention that it made a bonafide abolishm We note, however, that the functional requirements for a chief Clerk on a pier with a work force of about forty employees not only were unlikely to evaporate with the abolishment of the F-166 position, but that the major responsibilities of such supervisory position were in fact preserved and continued largely intact in the work transfer to the junior clerk. We cannot, in the context-of the Agent's clearly stated design and behavior, come to any conclusion other than that the Agent's actions sought to achieve by indirection what he was unable to achieve through direct negotiations. His actions, in av pursuant to Rule 2-A-1(a) so as to deny Claimant rights of seniority under the Agreement, had the effect of evading the application of the rules of the Agreement, thus violating Rule 4-p-1.


        Paragraph (c) of claim is that "Any other employe who was affected as a result of this sharp practice be allowed monetary loss." In the absence of evidence of record in support of this claim, this paragraph (c) is denied.


              FIPMII9iS: 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;


        That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and


              That the Agreement has been violated.


                            A W A R D


              Paragraph (a) of Claim sustained as per Opinion.


              Paragraph (b) of Claim sustained.


              Paragraph (c) of Claim denied.


                                    NATIONAL RAILROAD ADJUSTMENT BOARD

                                    By Order of Third Division


        ATTEST:

        Executive LAA Secretary


        Dated at Chicago, Illinois, this 6th day of September 1974.


. .1
            CARRIM ;E 5ERS' DISS711T TO AWARD N0. 20334 -

            DOCUf NO. CL-20317 - R "TF_REE LAZAR


The Award in this case is in such serious error that it cannot stand uncontested. Th.= mr_crity have gone far beyond the plain. ter:rs of the applicabl rule of the Agreemen-- in seeking to reach a sustaining Award. It is apparent th Award is based upon Contentions, assertions and opinions of the employes, o:hich were obviously- considered from the standpoint of emotion and equity rather than from the provisions of the Agreement.

 The A,rard recites the "Mmployes' Statement of Facts" as set forth in the Ex Porte Stibmisc;on formulated by the Division Chairran of the Organization and the Superintendent-Labor Relations. The existence ef one party's position and assertions in >,=:ort thereof in an Ex Parte docu..^.ent ,under the caption `.hployes' Statem reason for an Ex Papa Statement of Facts is because the parties are in d1sa6ree ment as to "Facts". In U.^.y event, the record is clear that these alleged "facts' were denied and refuted by the Carrier.

 The pertin°nt facts with respect to the application of the applicable rule of the 11greem=.^.`, in the situation are clear and brief. There were five clerical positions -.^. existence at the location in question prior to February 18, 1970. One position ---as abolished and then there were four.- not five. Work of the abolished position rc:czined to be performed at the location and even the Award ugrcez that t'-iz work was assigned to the fot:r remaining clerical _obz. This either corf er-c to the rule of the Agree-ent covering the assignment of worl when positions are c-olished.. or it does not.

 The prim;-- and controllin- rule in this dispute is Rule 3-C-2. which specifically covers -he assig=ent of work when a position is abolished and work of the abolished position retains to be performed. Rule 3-C-2 provides as follo:

            "RULE 3-C-2 -- ASSIGh^·M"T OF WORK


            "(a) Mien a position covered by this Agreement is aboliched, the work previously assigned to such posit'cn which renains to to performed will be assig in accordance with the following:


              "(1) To another position or other posiLions co-:ered by this Agreement ..rher such other position or positions remain in existence~ at the location where the work of the abolished position i.s to be perforned."


Nowhere in the Award is there a showing that Rule 3-C-2 was violated. Rather, the Award -points out that Rule 3-C-2 expressly recognizes the right of
      1

      - 2 -


the Carrier to abolish positions and assign the :cork previously assigned to such abolished positions "in accordance with specified limitations°. Thc-c "limitations" are not iden only stated limitation is that the work be assigned to another position or positions covered by the A The facts, v-,7d neither v.e employes nor the Award deny it, show that this is exactly what occurred did act strictly within the terms of Rule 3-C-2.

 The cajority, obviously unable to conclude that the terms of Rule 3-C-" were violated, found it necessary to go elsewhere and beyond the controlling rule to reach a basis for a sustaining Award. It is indicated that the Carrier's real error was a violation of Rule )1-F-1 of the Agreement, apparently on the assunptic that Carrier diccontirucd cr abolished a position and then created a new positior covering relatively the sane class of work, thus having the effect of reducing rates of pay or evadinS the application of the rules of the Agreement. The errs: of the majority in this 1'_ne of reasoning is that no rc·.· uo;ition was created
Under an application of .°_ie 3-C-2, which is the controlling rule in tails dispute, the Carrier cannot reduce rates of pa;,-. :1s the Carrier pointed out in its lebuttal -rief, L:1~ 3-C-2,c) recognizes that work of an abolished po ic may be aZ;~ioned to a position the rate of ~rhich '_s less `~·Ln the rat of the
 ;ci that q.:.~a ...I dr 3 1.ch r' rw ._.-_ __ ·.. .:
 i`.:
 :.t.-..cnt '~e:, ccor:ianee';h te eatablisl.c3 prc,.ec'.u;·es. It i., an
 a fact of record that c.._ of the positions involved eras rc-evaluated arid re-rates
 as prescribed in Rule 3-C-2. The :.;--ard says that the Agent had the job re-rated,
 but the fact is that this action ·.ras initiate by the emplo,·,,es. Obviously, Rae 3-C-2 takes Precedence in a factual situationn such as invo7:·ed in this case, and
 Rule 4-F-1 has been erroneously relied upon to. find in favor of the claimant.

 Rule 4-F-1 applies when an established position is abolished and a new one created. fo ne·r position was created here as there was a reduction Ln the total nunber of positions at the location. Furthermore, rates of pay were not reduced, as the Carrier paid the sable rate for the work in question; nor was the application of the rule evaded.

 The Carrier is at liberty to rearrange its forces in any manner it sees fit so long as the Agreement is complied with. It cannot be, arid has not been, shown that Carrier did not comply with the terms of the applicable rule of the Agreement in this case. Therefore, all of the assertions and opinions of the employes as to intent, sharp practice or otherwise are not controlling factors and do not rmal:e the actual abolishment in this case any less bona fide. The Board in this case had only to decide whether there was a violation of the Rules of the AFreement, not whether the Carrier engaged in "sharp practice" in exercisina its rights under the Agreeraent.

 The application of Rule 3-C-2 on this property has been well settl: as the result of numerous cases decided by this Board. If any weight were to
                        - 3 -


be Given to the instant Award, the situation concerning the application of Rule 3-C-2 would certainlj· be confused. In the instant natter, the Carrier literally and fully complied with every requirement of the rule incident to the abolishment of a position, aid work of the abolished pcsition that remained to be performed. Despite the clear provision of Rule 3-C-2 coverin.- the assianrcnt of work of an abolished position to a lower-rated clerical position, the majority has now said that this constitutes a violation of T
At the very least, this Award is palpably erroneous. It borders on the writing of a new rule and going beyond the ,Jurisdiction of the Board. For these and the reasons mentioned above, we dissent. No precedcntial value whatsoever can be attached to the A::ard.

                                    H. F. ~l. Braidwood


                                      A / - I

                                    P. C. Carter


                                    W. B. jonc~s


                                              ~, r. (. ..~-!


                                    G. L. Naylor


                                    G. :·i. iouh~


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