The Third Division consisted of the regular members and in addition Referee Marty E. Zusman when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
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.
The Claimant occupied one of five positions at the Oakland Operating Department Agency. The Claimant was notified on September 13, 2002, that his Form 1 Award No. 38063
position of Agent was slated for abolishment under Implementing Agreement New York Dock-217 pursuant to Article II, Transactions. His position was one to be abolished and transferred from the Oakland Agency to the National Customer Service Center in St. Louis, Missouri. As part of the abolishment of positions, the Claimants involved elected to receive severance under NYD-217.
Thereafter, the record indicates the following. By Notice dated November 5, 2002, the Carrier indicated that the transaction notice of abolishment was "hereby cancelled." Such action was followed with the Carrier change of title from "agent" to "Chief Clerk" and protest by the Claimants.
The Claimants argue that the Carrier's reliance on Rule 42 is misplaced. The Carrier abolished the positions and moved the work to other areas. Thereafter, the Carrier failed to fulfill the obligations related to abolishment. The Claimants' election of severance under the Implementing Agreement was ignored as the Carrier claimed that Rule 42 provided proper authority to change hours, rest days, locations, assigned departments, duties and rates-of-pay. As per the questions of claim, the Board is asked to award severance. The Claimants argue that severance was wrongfully withheld in violation of NYD-217 and Rule 42.
The Board notes at the outset that it has no jurisdiction under New York Dock217. That Implementing Agreement and its protective conditions including severance must be resolved by mechanisms under the language of that Agreement. Further, we note that the Carrier rescinded the abolishment of the Claimants' positions and we find no authority or evidence that such action violated any Agreement. As we do not consider New York Dock cases within the auspices of this Board, the remedy of a separation allowance is also beyond our authority.
With regard to the abolishment of the Claimants' positions, there is a lack of proof that such action occurred. The record indicates that the Carrier changed the Claimants' starting time, rest days, assignment and rate of pay by notice dated November 11, 2002. Rule 42 states in part:
There is no evidence of record that the Claimants' positions were ever abolished. While the Claimants maintain that they were abolished, the Board must resolve such disputes by the Rules of the Agreement and the record advanced and discussed on the property. Anything included within this record that was not discussed on the property is not proper for our consideration.
After full and careful review of all facts and evidence properly before the Board, we can find no Carrier violation of the Agreement. There is a lack of any proof that the Carrier abolished the jobs and even if, areuendo, the Carrier did maintain a position number and shift the employees to new work, there is nothing in this Agreement that would entitle the Claimants to a severance.
We are forced to conclude that if this were a New York Dock claim, severance might be considered, but it is not a dispute properly before the Board. Alternately, if this were a Rule 42 interpretation, no proof exists that the Carrier violated the Agreement or that severance would be a proper remedy. Accordingly, both questions must be answered in the negative and the claim before the Board dismissed.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.