The Second Division consisted of the regular members and
in addition Referee J. Harvey Daly when award was rendered.
RAILWAY EMPLOYES' DEPARTMENT, A. F. of L.-C. I. Ow
INTERNATIONAL ASSOCIATION OF MACHINISTS
1. That under the current Agreement the Carrier's arbitrary unauthorized action in unilaterally appointing Machinist R. Collier to Position of Lead Machinist on March 16, 1962, without in any manner complying with procedures outlined in applicable provisions of the parties contract for bulletining and assignment of New Jobs, was improper, in violation of the collective bargaining contract.
2. That accordingly, the Carrier be ordered to additionally compensate Machinist Arthur Johnson (hereinafter referred to as claimant) for the difference between the Machinist hourly rate of pay claimant has received each working date, and that paid Lead Machinist R. Collier, commencing with the date of May 10, 1962, and continuous therewith until violation of the collective Agreement is discontinued and applicable provisions for bulletining and assignment of positions subject to said Agreement is complied with.
EMPLOYES' STATEMENT OF FACTS: The record establishes that carrier employed Machinist R. Collier as machinist on February 13, 1962 at its McCloud diesel shop, McCloud, California.
On March 16, 1962 carrier unilaterally appointed Machinist R. Collier to duties and a position identified as lead machinist.
Positions of lead machinists -leading working mechanics-are subject to and covered by specific, unambiguous provisions of the current agreement, and employes assigned to such positions in accordance with applicable provisions of the controlling agreement, have negotiated seniority and other service rights thereunder, including contractual right to perform mechanics' work of their respective craft while occupying such positions. No dispute appears in the record regarding these facts.
(d) Should the Board find for the claimant, rate adjustment should be. made in compliance with Rule 36 on a basis of actual hours worked by claimant Johnson, not in difference in pay received.
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.
Machinist R. Collier was hired on February 13, 1962, and worked at the Carrier's Diesel Shop at McCloud, California.
On March 16, 1962, the Carrier appointed Machinist Collier to a Lead Machinist's position and the Organization protested that Carrier's action violated Rules 13(a) and 36 of the controlling Agreement-which is dated February 17, 1961.
The pertinent part of Rule 13(a) of the controlling Agreement reads as follows
Neither the Carrier's nor the Organization's Ex Parte Submission contains any evidence of the claim's development and progress on the property. Therefore, the Board has no evidence to indicate that the 60 day time-limit question was raised ~on the property. It is true that the Carrier raised that question in its Ex Parte Submission, but the Board holds the question was not timely and properly raised and, therefore, it is unacceptable.
It is a fact that the positions of Lead Machinists are covered by the controlling Agreement. It is also a fact that Rule 13(a) provides that "new jobs" must be bulletined, and the record indicates that the Carrier failed to do so. Consequently, the Carrier violated the Agreement.
The Carrier's plea that it had the management right to select a Lead Machinist on the basis of "leadership qualities" is unacceptable, because the Rule, supra, does not reserve or grant to the Carrier such a right.
Accordingly, the Board must rule in favor of the Organization and grant to the Claimant the additional sum of six cents per hour for each hour the Claimant has worked between May 10, 1962 and up until the time the violation of the Agreement is corrected.