NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-24974
Marty E. Zusman, Referee
(Paul L. Rush
PARTIES TO DISPUTE:
(Illinois Central Gulf Railroad Company
STATEMENT OF CLAIM: Claim of Paul L. Rush in that:
1. Company violated the Clerks Agreement effective October 9, 1980,
and has continued to violate the agreement each day thereafter, when it abolished
Utility Clerk Position 100, at Johnston Yard, Memphis, Tennessee, in the Yard
Office, in violation of Rule 16, among other rules of the agreements, which
resulted in claimant Rush being illegally displaced from his regular position of
Timekeeper, RH-72.
2. Company shall now be required to compensate Clerk P.L. Rush a day's
pay at the rate of Position RH-72, in the amount of $75.50 per day,
beginning
October 9, 1980, and
continuing for
each work day thereafter, until Claimant Rush
is returned to his regular Position RH-72.
OPINION OF BOARD: Claimant Paul L. Rush argues that Company violated Clerk's
agreement when it abolished Utility Clerk Position 100 by
failing to abide by Rule 16 which reads in pertinent part as follows:
°RULE 16 - REDUCTION IN POSITIONS ,
"(b) Subject to paragraph (c) of this rule, in effecting a general
reduction in clerical forces in an office or department, if two or
more clerks are performing the same or similar work, the lowest rated
position in such group (or if all are rated the same, the job held
by the junior employee) shall be the first cut off. If no such groups
or positions exist, the lowest rated clerical position in the office
or department affected will be cut off provided the efficiency of that
office would not be impaired by so doing.
(c) any position may be abolished when the major portion of its work
or requirements is no longer needed."
The issue in the instant case is whether the Company in abolishing
Posirion 100 was subject to Rule 16(b) or Rule 16(c). Claimant Clerk Paul L.
Rush maintains the company was subject to Rule 16(b) and he has been denied his
rights under the Agreement in force. If the Company was subject to Rule 16(c) then
it operated in accordance with the Agreement and engaged in no violation.
It is the responsibility of the moving party to document by evidence any
said violation and in the instant case such clear and
convincing evidence
is lacking.
In the case at bar a careful review of the record indicates that Rule 16(c) is the
controlling rule and was correctly applied. This is consistent with past Awards
of the National Railroad Adjustment Board (Third Division Awards 11793, 14701,
24011). Absent, therefore, evidence that the actions of the Company were inconsistent
with the controlling sections of the Agreement, this Board denies the claim as having
no merit.
Award Number 24886
locket Number NS-24974 Page 2
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 Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy J Deter - Executive Secretary
Dated at Chicago, Illinois, this 28th day of June, 1984