The issue in this case is whether Carrier violated Rule 15 and the Working Zone Agreement by advertising a new Foreman substation position headquartered at Penn Coach Yard in Philadelphia, Pennsylvania, with an assigned work territory extending over two work zones, Philadelphia and Wilmington, Delaware.
Rule 15 establishes two separate seniority districts for Electric Traction Equipment, and provides that:
A n Electric Traction Work ZoneAgreement was made between the Organization and Carrier, updated in October 1987, which sets forth, in pertinent part, different work zone limits for gang Foreman substations headquartered at Philadelphia and Wilmington, Delaware. There is no dispute that Carrier's bulletin in issue was the result of an abolishment of the prior Philadelphia Foreman position and the establishment of a new position responsible for the additional supervision of three new Wilmington zone substation positions. The bulletin listed a territory encompassing two different work zones and qualification requirements of passing a satisfactory exam.
The Organization argues that Rule 15 clearly states that the only change that can be made to work zones established by the parties is by written agreement between the General Chairman and Chief Engineer. It contends that the Work Zone Agreement sets forth different zone limits for Philadelphia and Wilmington, and that Carrier's unilateral combination of these two established separate zones in Advertisement No. 121-PETC-1093 is akin to the establishment of a new work zone in violation of both Rule 15 and the Work Zone Agreement. The Organization distinguishes Carrier's cited cases as having to do with different Agreement Rules and the issue of assignment of work cross zones, rather than bulletining a position with multiple zones. It notes that Carrier failed to prove its asserted defense of prior practice, and relies upon a 1988 letter from Assistant Chief Engineer Early to support its interpretation of the limitation on advertisements to a single work zone contained within Rule 15. Form 1 Award No. 32943
Carrier argues that it has been clearly established that it has the right to assign employees to work cross-zone service, citing Public Law Board No. 3932, Award 1; Third Division Awards 32223, 32219, 26372. It contends that the issue is whether an advertisement can accurately set forth the range of territory for which the Foreman will be held accountable and upon which the successful applicant will be selected.
Carrier asserts that the Organization failed to sustain its burden of proving that the Work Zone Agreement restricts the content of advertisements to a single work zone, relying upon Third Division Award 32217. It contends that it did not create anew work zone, but, rather, assigned a supervisory position responsibility for multiple work zones. Carrier avers that the formalizing of its cross-zone work assignments in a bulletin does not create a new work zone any more than the addition of a qualification creates a new job classification, citing Third Division Award 29863. Finally, Carrier notes that the Organization has not shown that there is any alleged aggrieved Claimant, or that any employee has been deprived of overtime, since the new position was awarded to the incumbent of the abolished position.
This case is remarkably similar to the facts and arguments presented by these same parties in Third Division Award 32217. In denying the claim in that case, the Board held:
That case did not involve the creation of a new position, but, rather, the advertisement of a Foreman position which had been posted and worked as a two zone territory for four years prior to its being advertised and held as a one zone position for five months preceding the bulletin there in issue. A careful review of that Award reveals that the Board did not base its conclusion on this distinguishing fact, but rather, its Form 1 Award No. 32943
finding that the Organization failed to prove that either Rule 15 or the Work Zone Agreement prohibits advertising a position incorporating two work zones, where the Agreement has been held to allow for cross-zone service.
The record before us does not provide any basis for concluding that the findings and interpretations made in Third Division Award 32217 are inapplicable, patently erroneous or should not be followed. Accordingly, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.