The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
At the time of the incident in question, Claimant L. J. Cain held seniority as a Roster 1, Rank A Foreman in the Track Sub-Department.
The facts in this matter appear to be uncontested. By Bulletin No. TC-05, dated February 22, 1993, the Carrier advertised Job No. 14013, a position identified as a Laborer/Track Inspector position with headquarters in Willmar, Minnesota. The position was identified as a five-day position with Monday through Friday workdays and Saturday and Sunday as designated rest days. Effective March 8,1993, the Carrier assigned L. A. Stoeser to the new Laborer/Track Inspector position.
According to the Carrier, the Track Inspection duties in the Willmar Yard take about two days per week to perform. When the employee assigned to this position is not working as Track Inspector at Willmar, the employee works as a Laborer on the Willmar Section.
The Organization takes the position that the Carrier violated the Agreement when it created the position of Laborer/Track Inspector. According to the Organization, the position of Laborer/Track Inspector never existed priorto the instant matter. The Carrier's action of creating, bulletining and assigning a permanent "combination" position of Laborer and Track Inspector was not allowed under the Agreement. While the Organization claims that "combination" positions are allowed under Rule 24F (relief positions), the instant case does not involve a relief position. Further, the Organization contends that the Carrier cannot find any support for the creation of such a position on the basis of any historical practice or application. Thus, the Organization claims that the claim should be sustained.
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. According to the Carrier, it is a fundamental principle that a Carrier's right to lawfully manage its business is limited only by specific Form 1 Award No. 35960
Agreement of the parties. There is no language in Rule 24 that would prohibit the utilization of a combination position to perform the limited track inspection duties in the Willmar Yard. While the Organization cited a number of Rules that were violated (2, 4, 5, 21, 22, 24 and 55) the Carrier contends that the creation of a Laborer/Track Inspector position does not violate any of those Rules and in fact, does not violate any of the Rules in the Agreement. Thus, the Carrier contends that the claim should be denied.
After a review of the evidence, the Board finds that the Organization has not been able to sustain its burden of proof in this matter. We reviewed the language of the Agreement and can find no language that prohibits the Carrier's right to create the position of Laborer/Track Inspector. It is well known that absent express language in the Agreement, the Carrier is free to exercise its management rights. The Board addressed this issue in Third Division Award 19596 wherein it held:
We agree with the Organization that the position of Laborer/Track Inspector is not a relief position. A review of Rule 24F indicates that it only governs relief positions. As we have determined that the instant position was not a relief position, Rule 24F is not applicable. However, we have nonetheless determined that the Carrier was allowed to create such a position pursuant to its management's rights.
We reviewed the record in this matter and have determined that the Carrier did properly post and fill the position of Laborer/Track Inspector pursuant to Rules 21 and 22A stated in part below:
Based on these determinations, we find that the Claimant was not aggrieved in this matter. The Carrier was within its rights to create the instant position. Further, not only did he not bid on the position, he also was fully employed at all relevant times and thus lost no compensation.
Based on the record in the instant case, we find that the Carrier acted appropriately when it created the position of Laborer/Track Inspector and placed L. A. Stoeser to the position. The claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.