(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (Kentucky & Indiana Terminal Railroad Company

1. Carrier violated the Agreement, particularly Rules 18 and 16, when on March 26, 1975 Clerk R. F. Burns was disallowed an exercise of seniority over a junior employe to claim the 11:00 P.M. to 7:00 A.M. Console Operator position.





OPINION OF BOARD: This Board has carefully reviewed the numerous
 arguments raised by the parties. While we
 recognize Carrier's strong averment that pertinent specifications of
 the Railway Labor Act, particularly, General Purposes, Section 2(5);
 Section 2, Second; and Section 3, First (i), were not fully met,
 we find sufficient evidence to suggest otherwise.
We will not belabor this point by an interpretive assessment of the changing argumentative disti except to note that claimant satisfied the intended requirements of the aforementioned provisions. The case is properly before us on these procedural grounds.
Conversely, we are also clearly mindful of ciimant's legal claim against Carrier for a purported back injury sustained in 1971 and Carrier's understandable concern to protect itself from expanded liability, but we believe that Carrier acted somewhat


precipitately, when it declined claimant's application for the 7:00 A.M. Console Operator's position.

 Nevertheless, despite this observation we cannot disregard the relevance of Circular No. 1 which expresses in clear and unmistakable language the mandatory requirement that "a11 data submitted in support of employees' position must affirmatively show the same to have been presented to the carrier and made a part of the particular question in dispute." Petitioner's ex parte submission to the Board contained supportive documentation D-2 through D-5 which was not in fact exchanged on the property, but in substance discussed within the tactical framework of petitioner's assertions. The documents were proper.

 But the inclusion therein of Employes'Exhibit D-1 which details dialogue and significant perceptions affects the heart of this case. The contents of this document were not made known to Carrier until the above submission was simultaneously received by Carrier and the Board. Unlike claimant's exhibits D-2 through D-5 which contain essentially uncontested and well-known fact situations, D-1 contains substantive data, conversational recollections and inferences which are germane to this dispute and deserving of rebuttal. It should not have been included as supportive evidence.

 We recognize that the apparent equities of this dispute were not fully addressed herein, but the National Railroad Adjustment Board has set forth explicit procedures which must be judiciously observed. In the instant case, we are confident that we have applied our demanding standards, consistent with our adjudicative obligation. We will deny the claim.

        FINDINGS: 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
                                                          i


                    Award Number 22199 Page 3

                    Docket Number CL-21737


        That the Agreement was not violated.


                    A Td A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        Executive Secretary


Dated at Chicago, Illinois, this 13th day of October 1978.