( Express and Station Employes PARTIES TO DISPUTE:

STATEMENT OF CLAM: Claim of the System Committee of the Brotherhood

"1. The Western Pacific Railroad Company violated the Agreement when it relieved Ms. G. Guadamuz from her Rule 2 Position of Secretary to Chief Mechanical Officer without just and proper cause.

 2, The Western Pacific Railroad Company shall now be required to reinstate Ms G. Guadamuz to her former position, or comparable position with like salary, plus the difference in the rate of pay, including all wage increases between her former position of Secretary to the Chief Mechanical Officer and her present position, including any other assignments she may hold before settlement of this claim."

 OPINION OF BOARD: The claimant was hired by the Carrier in March,
 1974. She began as a Steno-Clerk in the Accounting Department. Having demonstrated above-average typing and shorthand competence, she was considered, along with others, as a candidate for filling a vacancy in the position of Secretary to the Chief Mechanical Officer. This is a so-called excepted position under Rule 2. The claimant became the successful candidate and entered the position in mid September, 1974.

 According to the Carrier (and the record is not without documentation on this score), the quality of the claimant's work, as well as her attitude, turned out to be below expectations and below acceptable levels. She was removed from the position in late' July, 1976 (thereupon exercising her seniority and landing in a Demurrage Clerk Job).

 It is clear beyond question that we cannot grant either of the demands which the Organization makes in the Statement of Claim. As to the demand that the claimant be returned to the


position from which she was removed, the fact, as already given, is that this is an excepted, Rule 2 position. It is firmly established, by a long line of Adjustment Board Decisions, that both the selection of employes for and their removal from such positions are reserved as exclusive Carrier rights. And as to the demand that the claimant be placed in a position of equal pay, the answer must be that the claimant's seniority -- not the asserted right to suffer no pay reduction -- governed her placement upon removal from the excepted position.

 The real question in the case (not reflected in the Statement of Claim but fully raised on the property as part of the dispute) is whether the Carrier validly resisted the claimant's request for an "unjustly treated" hearing pursuant to Rule 46. The Rule reads as follows:

        "An employe who considers himself unjustly treated, otherwise than covered by these rules, shall have the same right of hearing, appeal, and representation as provided in Rule 45, if written request which sets forth the employe's grievance is made to his immediate superior within 10 days of cause of complaint."


Essentially raised is an interpretative question going to the proper application of the phrase "otherwise than covered by these rules". We are proceeding with awareness of all of the following: that the Rule was adopted in times when Carriers held many more managerial prerogatives than they do nowadays -- which is to say that it is to be granted that the presence of the Rule in a modern collective-bargaining Agreement represents something of an anachronism; that there is divergence among past Decisions which deal with the meaning of the phrase; and that it can plausibly be argued, just as the Carrier argues, that the area here in question is a Rule 2 area -- i.e., an area addressed by the Agreement -- and hence not an area "otherwise than covered by these rules."

 We have nevertheless concluded that the claimant was entitled to the "unjustly treated" hearing she sought. We think the key lies in the fact that her removal from the position was a matter of unilateral managerial authority and that she was therefore without redress under Agreement rules.
                  Award Number 2247'/ Page 3

                  Docket Number CL-22231


We are mindful of the fact that the Carrier has already submitted documents of various sorts in defense of its decision to remove the claimant from the position. But such documentation is not the equivalent of affording her the opportunity of a Rule 46 hearing. We are also mindful of the Carrier's belief that such a hearing is bound to produce renewed acrimony and mud-slinging. But neither the anticipated posture of one or the other or both of the parties nor the anticipated strength or lack of it of the employe's complaint can be accepted as justification for refusing to provide the hearing. For, if a hearing can be refused on the grounds that the result of the hearing is a foregone conclusion, the right to be heard is no right at all. We hold that the claimant, if she still requests it, is entitled to a Rule 46 hearing.

 We should reiterate, however, that it is not for us to direct the claimant's reinstatement to the position or to direct that she be placed in a comparable job or to direct wage restitution. The claimant's persuasive powers Are her sole Agreement recourse on these scores.

        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

 That the removal of the claimant from the position of Secretary to the Chief Mechanical Officer was not a violation of the Agreement, but that the Carrier erred in declining the claimant's request for a Rule 46 hearing.
                  Award Number :22477 -Page.l~

                  Docket Number CL-22231


                  A W A R D


Claim denied in part and granted in part, as given in the Opinion.

                        NATIONAL RAILROAD ADJUSYHENT RQkM

                        By Order of Third Division


ATTEST; 14/1
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of July 1979.

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