The Second Division consisted of the regular members and in
addition Referee J. Harvey Daly when the award was rendered.
TRANSPORT WORKERS UNION OF AMERICA,
RAILROAD DIVISION, A. F. of L.-C. I. O.
THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY
AND THE LAKE ERIE & EASTERN RAILROAD COMPANY
EMPLOYES' STATEMENT OF FACTS: This case arose at McKees Rocks, Pa., and is known as Case M-319.
Mr. G. Jencik is an employe of the carrier and he is covered by the Railroad Division, Transport Workers Union of America, AFL-CIO contract as a helper.
The Railroad Division, Transport Workers Union of America, AFL-CIO does cover the helpers on the property of the carrier but in no way represents the laborer's on the property.
The organization does have the right to process case that involves helpers on the property of the carrier.
The carrier did use a junior helper, who was working as a laborer, while a senior helper was furloughed.
That the organization has no control over other contracts, but only its own contract and the carrier should abide by the contract that was negotiated with this organization.
That the Railroad Division, Transport Workers Union of America, AFLCIO does have a bargaining agreement, effective May 1, 1948 and revised
1. There is no provision in the Carmen's Agreement requiring the carrier to recall an employe from furlough to fill day-to-day vacancies;
2. The claimant in the instant case, who had been displaced from his position, elected to take a furlough rather than exercise his seniority and thus removed himself from the opportunity to work as a carman helper;
3. Since carrier was not obligated by the agreement to recall claimant from furlough, it was within its rights to fill the vacancy on a day-to-day basis by using a laborer, having seniority as a carman helper, and
4. Carrier's right to exercise such managerial prerogative is upheld by numerous awards of the National Railroad Adjustment Board.
Carrier respectfully submits, therefore, that the claim is absolutely without merit and requests that same be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
An analysis of this record and the applicable rules of the agreement leads us to conclude that the carrier violated the recall and seniority rules when it used a junior employe on the dates in question. However, in view of the circumstances there will be no pay allowance made.