(Brotherhood of Railway, Airline and Steamship
 ( Clerks, Freight Handlers, Express and
 ( Station Employes
 ( (Formerly Transportation-Communication Division, BRAC)
 PARTIES TO DISPUTE:
 (Norfolk and Western riailwdy Company
 ( (Involving employees on lines formerly operated
 ( by the Wabash Railroad Company)

 STATEMENT OF Oi,hiM: C'.a:ri of the Geniral Committee of the Transportation
 Divis_on, BRUC, on c!:a Norfolk & Western Railroad
 Company, (GL-7459), that:

 1) Carrier is in viuiacion of -'he Agreement, Rules 7 and 16 and related rules, when it _h,~nged the Hta.lquarters Point of Relief Position occupied by H. E. Ccuper, from Han:iibal, Missouri, to Jacksonville, Illinois, and refused to allow claimant to displace a junior employe at Hannibal; and

 2) Carrier ,:hall be required to compensate H. E. Cooper for eight hours pay for each dcy he is not permitted to work at Hannibal Bridge, Hannibal, Misscuri, i.r. addi August 7, 1972; and

 3) C_rrio:: shall pay interest at the statutory rate for the state of Illinois, on all ;ums included in the abo··A paragraph and payable as a result of the violation.

 OPINION OF 'CAR-: Th'_s r l·ci r will be ?ismisc.d because the basis of the
 claim, as now presented to the Board, was not handled
 on the prc,p2rty.

 On August 7, 1972, the Carrier bul'etin,ed several changes in the Agent-" :legranher Relief P ceitioi_ occ,ipi.ed b, ;=fe Claimant, including a chanes in te= haadquart^r^ o' the p^^it'.on _ nm Hannibal Bridge, Missouri, to Jack_or_vi-1e Fre'.gr.L Y,use, Ja,~ksnm·ill,~, lliinois. Because of the headquarters chang Hannibal 2ridge, (the poi.it ·al:erc his 1-2adquarters was previously established) tut was to agreemer: :nd. that lie could only displace one of the 3 youngest regularly assigned employees on tt_e seniority eietrict as provided by Rule 16, paragraph E of the Telegrapl_e August 14, 1972 letter of the assistant to the General Chairman which stated


that the Carrier had violated Riles 7 and 16, and that the situation fell under the "office seniority" provisions of Rule 16(e) which apply when "a trick in any office is abolished." The claim letter also relied upon note 3 to Rile 16(e) which provides that incumbents of relief positions shall hold seniority in of the incumbent of the relief position. In a September 19, 1972 letter the Carrier reaffirmed its initial position and disputed the contentions about office seniority as well, stating that no trick had been abolished.

 The positions which the Employees and the Carrier took in progressing the claim on the property to the Board. However, the Employees' rebuttal brief repudiates the Employees' initial reliance on R of the prerequisites of Rule 16(e), a~olishment of a position or displacement of an employee, are pr applied nor can it be forced onto an employee." The brief then goes on to say that Rule 7(e) paragraph 7, is a wide open, non-restrictive rule which gave the Claimant a full displacement right without regard to the Rule 16(e) limitation to one of the three youngest regularly assigned employees on the seniority district. Rule 7(e), sub-paragraph 7, with the Employees' underlining, reads as follows:

In the oral presentations of the case, the Carrier representative objected to Board consideration of the Employees' Rebuttal Brief contention concerning Rule 7(e), subparagraph 7, on the ground that such contention was not made during handling on the property. The record makes it clear that the Employees' based their case on Rule 16(e), and the "office seniority" provisions therein, in the initial filing of the claim and throughout the handling on the property. This position has now been abandoned and repudiated in favor of a contention concerning Rule 7(e), paragraph 7, which was not advanced on the property. In such circumstances, the Carrier's objection is sound and the claim must therefore be dismissed. Award Nos. 5469, 19101, 19861, and 20166.



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

 The claim is dismissed because of being based on contentions not handled on the property.

        Claim dismissed.


                        NATIONAL RAILROAD ADJUST BOARD

                        By Order of Third Division


ATTEST: ~ ~~ ~i_

        .cecutive SecretarygDated at Chicabo, Illinois, this 16th day of May 1975.

          LABOR MEMBERIS DISSENT TO AWARD 20717 (DOCKET CL-20474)

          (Referee Blackwell)


        The Referee and the Carrier Members attempt to show that the Organization switched from reliance. on Rule 16 to reliance on Rule 7 after the instant claim came before this Board, The final paragraph of the Opinion of Board begins with the sentence:


                "In the oral presentations of the case, the Carrier representative objected to Board consideration of the Employ-ees' Rebuttal Brief contention concerninmJ Rule 7(e), subparagraph 7, on the around that such contention was net made during handling on the property,"


        That assertion advanced by the Carrier Member is directly contrary to the fLcts of Record in tais dispute, For one example, the original claim letter dateciAu~lust 14, 1972. contained the sentence: "We maintain that Rule 7 (e) last _)aragraph gave claimant this rieht." For a second example. at page 2 of the Employes' Ex Parts Submission, under the Erployos' Statement of' Facts, it is statcd: "The tranz~actic.n `hat gave rise to this claim was the establistment of a new relief position pursuant to Rule 'l(e) paragraph 7, which reads as follows:" after which the rule is quoted in full.


        Additionally, :he Carrie rfs Rebuttal Brief contains no objections similar to those cdvanced by the Carrier :,!umber in oral argument and, thus, it is new argument - however erroneous - that the Referee accepted as a basis for his dismissal of this claim.


        The Record clearly establishes that the claim remained unchanged and the rule reliance remained unchanged during handling of the claim on the property. It is palpably erroneous and, to say the least, outrageous that this Referee held:


                "This positicn `!as now been abandoned rind repudiated in favor of a contention concerning Rr13 paragraph 7, which was not advanced on the property,"


            ' Vigorous dissent is registered. q


                                    1`.mw - 4 ! ~ _Fi`~ l:


                                J'..C: Pletcher

        May 30, 1975 Labor Member


                                    i


                                    i


I
    CARRIER MEMBERS' ANSWER TO LABOR NEMBER'S DISSENT TO AWARD 20717

    (Docket CL-20474, Referee. Blackwell)


Fortunately for the Carrier Members, the statement made on behalf of Carrier at the 'oral presentation" is a matter of record; and to expose the sheer nonsense in the Labor Nember's Dissent we are reproducing that statement here.

 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

      I IN THEIR. REBUTTAL THE EMPLOYEES HAVE CATEGORICALLY REPUDIATED THE POSITION THEY TOOK IN POSITION OF EMPLOYEES AND HAVE EXPOUNDED AN ENTIRELY NEW THEORY THAT IS BOTH INADMISSIBLE AND UNTENABLE; PARTS (1) AND (2) OF THE CLAIM SHOULD THEREFORE BE DENIED, AND PART (3) OF THE CLAIM SHOULD BE DISMISSED.


The Statement of Claim in this case charges Carrier with violating "Rules 7 and 16" and in Position of Employees, where the Employees are required to state every argumentative fact that is relevant to their case, they give us the following perfectly clear statement of their position as to exactly how Carrier violated Rules 7 and 16 (P. 7);
 CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT, Award 20717 - Page 2

        "How the Carrier can say that the displacement made by the claimant is not permissible under the Schedule Agreement is beyond our comprehension, as the very Rule that they cite, Rule 16 (e), Paragraph 1, and the third note on page 17 of said Agreement, which we have

        ..quoted.above,.giv.e the. claimant the. right.he has exec- . cised.


        "Carrier refuses to consider the original Relief Position abolished, but by changes made it can be nothing cther than an abolishment as the last paragraph in Rule 7(e) states, that, changes in the as will constitute a new position. If displacement rights were to be restricted in cases such as this, to the three (3) youngest regularly assigned employes on the seniority district, Rule 7(el would most certainly have said so, but it did not; it have full displacement privileges, as provided in the Agreement and one (1) of these privileges was to displace the junior employe in point of seniority in the office in event a trick in the office was abolished.


        "Note three (e) in Rule 16(e), which gives relief employes office seniority in the office designated as their headquarters can be for no reason other than disn rights in that office."

From the foregoing it is crystal clear that the nnployees' theory in presenting the case to the Board was predicated on two assumptions, the first being that the changes in Claimant's old relief assignment amounted to an "abolishment" within the purview of Rule 16 and that in turn resulted in giving the Claimant the benefit of the provision in Rule 16 providing for the displacement of the junior employee in point of seniority at the office when a trick in the office was abolished. That is the precise language cited, and Rule ' was cited only for the purpose of bringing the Claimant into Rule 16.
          CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT, Award 20717 - Page 3


            Both of these basic assumptions upon which Petitioner based its


          entire case in Position of Employees are categorically repudiated in


        Petitioner's rebuttal statement (Pp. 46 and 47) where we find:


                "The Organization takes the position that Rule 16 (e) is a restrictive rule with absolute factors being required to be present before it can be applied. Those factors being:


                    (1) Abolishment of a position.


                    (2) Displacement of an employee.


                "In the instant claim neither factor is existent, therefore, Rule 16 (e) cannot be applied nor can it be forced onto an employe.


                it* k


                "The Organization takes the position that Rule 7 (,e), sub-paragraph (7), which reads in part:


                    'Changes in the assignment of regular relief assignments from those advertised will constitute a new position, as referred to in Rule 16, but the emolovee holding the recular relief assi;~nnent it time of change will have tie option of retainine it or exercising displacement privileges. (Emphasis by Petitioner


                "is a wide open rule with no restrictions on the employes right to exercise his seniority when the Carrier makes changes in the regular relief assignments."

          Thus, in their initial submission the Employees rely on Rule 7 (e) only as a means of getting into Rule 16, and they rely on the alleged existence of an abolishment to get an alleged displacement right under Rule 16; whereas, in their rebuttal they deny that Rule 16 -,,,as involved and set up for the first time a new proposition that the seventh paragraph of Rule 7 (e) in and of itself creates an "open" and "unrestricted" dis-


yf,
 CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT, Award 20717 - Page 4

 placement right that is far greater than the right allowed under the
 parties' agreement to employees who are displaced or whose positions
 are abolished. -... _ .

 In the first place, the Employees are precluded from thus changing their theory at the rebuttal stage. No issue can be raised and presented to the Board unless it has been handled on the property in the usual manner and presented in an initial submission, as prescribed by the rules of the Railway Labor Act and this Board. See authorities cited in Subdivision II, below. [Authorities not reproduced here.]
 Furthermore, if the matter were properly before us, there would be no rhyme or rea.qen for creating such a displacement right in employees whose positions have beer changed when similar rights are expressly denied to employees whose positions are abolished; and the history of Rule 7 (e) establishes that it was not designed to create new seniority or displacement rights at all; rather,, it was designed only to refer to rights that otherwise existed under the agreement. As Carrier notes at page 51:

        "Rule 7, 'WORK WEM,' SECTION 1, ESTF$LISM-fENT OF SHORTER FORK WEEK,' Paragraph (e), 'REGULAR RELIEF ASSIGNMENTS -' is not intended to provide privileges or restrictions on the actual exercise of seniority, said n:le has for its.purpose, the establishment of the forty (d0) hour work week. The exercise of seniority is governed by Rule 16, 'PROMOTION AND RIGH

Clearly, the Petitioner has failed to prove the claim that is stated in the Statement of Claim. To the contrary, Petitioner has repudiated
 CARRIER MEMBERS' ANSWER TO LABOR MEMBER'S DISSENT, Award 20717 - Page 5

 the portion of the claim alleging that Rule 16 was violated, and has delayed until its rebuttal coming forward with any theory that Rule 7 was in and of itself violated; furthermore, that tardily presented theory is completely un'Ccnable. .Parts (1) and (2) of the claim should be, denied.
 Part (3) of the claim should be dismissed because the controlling agreement has no provision for the payment of interest on an unliquidated claim. See authorities on this point cited in Subdivision III, below. (Authorities not reproduced here

            r


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521

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