(Brotherhood of Railway, Airline and
 ( Steamship Clerks, Freight Handlers,
 PARTIES TO DISPUTE: Express and Station Employee




(a) The Southern Pacific Transportation Company violated the Agreement when it failed and refused to grant Mrs. HIM& Noes an investigation duly requested in accordawe with Rule 50 thereof; and,

 (b) The Southern Pacific Transportation Compar shall now be required to grant Mrs. 811ds Moss the investigation as requested on April 24, 1973.

 OPMCN OF HOARD : While working as a night janitress on the seventh
 floor of the Carrier's General Office Building in
 San Francisco, the Claimant was the senior bidder on a first floor janitress
 position designated as Position No. 89. The Claimant was warded the first
 floor assignment by Clerks' Assignment Notice xo..6, dated April 16, 1973;
 however, the Carrier declined to place her on the position on the ground
 that there are no seniority rights to a specific floor and thus no con
 comitant obligation by the Carrier to assign any janitor to a specific
 floor. Under date of April 24, 1973, the Claimant protested the Carrier's
 action in not assigning her to Position 89 and requested an "unjust treat
 ment" hearing under Rule 50. This request was denied by the Carrier in a
 letter of April 27, 1973 which stated that:

Under date of May 2, 1973, the Division Chairman filed a claim alleging that the Carrier's handling of the Claimant violated several enumerated rules of the Agreement.

 The May 2, 1973 claim alleging rules violations is still an open claim on the property, so far as the instant record indicates, and the


merits of that claim are not involved in this dispute. The sole issue here is whetheer or not the Carries improperly denied the Claimant's request for an "unjust treatmen follows:

        "An employ* wbo considers himself unjustly treated, shall have the same right of investigation and appeal a provided in Rules 46, 48 and 49 if written request is made to his superior within fifteen (15) days of the cause of complaint."


The Employes' position is that the Claimant is the moving party under the above Rule and that nothing in the Rule gives the Carrier the right to say that the Claimant had no right to the requested investigation. The Carrier's Submission states that "no sharing had or could be made that Claimant had been aggrieved in any way that would justify a Rule 50 hearing procedure"; and that the Claimant's remedy in the dispute lies in the application of the Agreement to the facts concerning her assignment to Position 89. The Carrier's theory for the foregoing, an reflected in its Submission, is that Rule 50 is intended to apply where an employe claims a benefit above and beyond the benefits encompassed by the Agreement and that a claim alleging Agreement violations must be processed under the usual claims procedures which do not provide a hearing. The Carrier's Rebuttal Brief reiterates that the May 2, 1973 claim alleging Agreement violations is in the proper forum for disposition of the instant dispute; however, the Rebuttal Brief goes on to state that the Carrier "has no quarrel with the application of Rule 50" and that-its objection is that the "Employer are progressing the same claim on two bases." The Carrier's Submission and Rebuttal Brief, when read together, thus appear to take the position that the instant claim should be estopped because of the existence of a collateral proceeding arising from the same facts, or alternatively, that the Rule 50 parties' handling of the collateral proceeding (i.e. the May 2, 1973 claim) has been concluded.

 In support of their respective positions, the Employee cite Third Division Award Bo. 8233 and the Carrier cites Award No, 3, Public Low Board NO. 843, involving these same parties. In Award No. 8233 the Carrier's denial of an unjust treatment hearing was held to be a violation of the Agreement where such hearing had been requested after the employe's removal from service on medical
        "The only qualification necessary was that the employee 'Consider himself unjustly treated.'"


In Award No. 3, Public Law Board Ho. 843, the Board considered a claim wherein the Carrier failed to grant a Rule 50 hearing which had been requested in conjunction with a
                    Award Number 21178 Pas

                    Docket Number CL-21070


employs's displacement privileges under Rule 36. In denying the claim, and in ruling that no violation resulted from the Carrier's failure to hold a Rule 50 hearing, the Hoard stated:

        "The Claimant had the right to complain of unjust treatment, but such complaint should be made with to matters not covered by the rules of the Agreement. In this dispute the Claimant could only obtain relief, if app under a rule of the Agreement covering the situa. tion that exists in this dispute.


        The claim that the failure to hold the investigation under Rule 50 'renders this demand due and payable, without consideration of the merits of the claim' in not correct. There is nothing in the Agreement to sustain such a claim.


        We hold that the failure of the Carrier to hold the investigation pursuant to the provisions of Rule 50 was not a violation of the Agreement."


in assessing the foregoing, and the whole record, it is noted that the ruling in Award No. 8233 was limited to the request for an unjust treatment hearing and that no claim alleging Agreement violations was involved. The claim in the dispute now under consideration in likewise so limited in that the Statement of Claim speaks solely of the request for an unjust treatment hearing, without any reference to a claim alleging Agreement violations. The instant claim in therefore within the purview of Award No. 8233 and the claim will accordingly be sustained on the basis of that Award. The claim in dispute in Award No. 3, Public Law Board No. 843, was of a nature substantially different from the herein claim and such Award is therefore not herein applicable. In that Award, as here, the Employes contended that a Rule 50 hearing had been improperly denied. However, unlike the instant claim, the claim in Award No. 3 also involved an alleged violation of an Agreement Rule. More important, the contention about Rule 50 in that Award was not that the Board should award the employe his hearing right; instead, the contention was the Board should sustain the part of the claim alleging an Agreement violation without even considering the merits of the claim. In contrast, this dispute does not involve any contention that a compensatory award should issue solely because of the denial of a hearing.

 In studying this dispute, it has been recognized that at first blush there in some plausibility to the Carrier's position against being confronted with tyro proceedings on the same facts at the same time; however, the aforementioned aut whole do not disclose support for this position. Since the employe's claim alleging an Agreement violation was actually adjudicated by the Hoard
                    Award Number 21178 page 4

                    Docket Number CL-21070


in Award No, 3i this Award provides no authority for the proposition that collateral estoppel applies in the facts of this case. Moreover, the instant record clearly establishes that the Claimant did not simultaneously initiate the two proceedings and indeed the record strongly indicates that the Claimant would have been satisfied to pursue her rights solely under Rule 50. In aav event, the record show that the collateral proceeding involving the claim alleging Agreement violations wu not instituted until after the Carrier denied the Claimant's request for a Rule 50 hearing, The collateral proceeding was thus in part a direct result of the Carrier's action in denying the hearing. In these circumstances, it would be inappropriate to "top the instant of the collateral proceeding. Also, since there has already been a substantial passage of time since a further denial of the Claimant's Rule 50 rights would not be appropriate.

 In view of the foregoing, it is concluded that the claim is meritorious and that it should be sustained.

        BINDINGS: 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 tees within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

        The Agreement was violated.


                    A W A R D


        Claim sustained.


                          NATIONAL RAIIROAD AWLSTMW BOARD

                          By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 13th day of August 1976.