The Second Division consisted of the regular members and in
addition Referee Jacob Seidenberg when award was rendered.
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Sheet Metal Workers)
EMPLOYES' STATEMENT OF FACTS: At Roanoke, Virginia, the Norfolk and Western Railway Co., hereinafter referred to as the carrier, maintains a heavy repair shop known as the East End Shop and a running repair shop known as Shaffers Crossing Shop. Carrier employs sheet metal workers at each shop with seniority rights confined to the shop where employed. Sheet Metal Worker J. W. Epperly is employed in the Roanoke East End Shop and holds seniority as a sheet metal worker only at the East End Shop.
J. W. Epperly was furloughed from the Roanoke East End Shop on May 8, 1959. On August 16, 1960, while three sheet metal workers were furloughed from the Shaffers' Crossing Shop, carrier urged and permitted J. W. Epperly to sign up for and be used as a furloughed relief worker at Shaffers' Crossing Shop.
Subsequent thereto, the sheet metal workers employed and holding seniority at Shaffers' Crossing Shop deemed Carrier's action in using J. W. Epperly as a furloughed relief worker at Shaffers' Crossing, where he held no seniority, to be in violation of the controlling agreement. Accordingly, on August 17, 1961, Local Chairman M. L. Obenshain, notified General Foreman D. S. Haga, that it was the opinion of the sheet metal workers that J. W. Epperly was being worked in violation of the agreement, and requested that the practice be discontinued, as evidenced by copy of statement dated August 18, 1961.
Carrier's general foreman failed to discontinue the practice as requested and thereafter formal claims were filed with carrier for each date (specified in Part 2, Claim of Employes) on which J. W. Epperly was worked as a furloughed relief worker, in behalf of a sheet metal worker regularly employed as such and holding seniority at Shaffers' Crossing Shop. 4479-13 468
not hold seniority. Such principle is recognized throughout the agreement. Article IV of the August 21, 1954, agreement does not restrict carrier by confining an employe to work at his home point only.
The emergency board which made the recommendations which ultimately resulted in Article IV of August 21, 1954, agreement stated that such a rule would remove the necessity for overtime for regular employes and would help reduce unemployment of furloughed employes. Such was the case in the instant claim, as furloughed Pipefitter Epperley had not been able to secure outside employment and was in need of a job. It will be seen that carrier's application of the rule is strictly in line with the intent of the findings of the emergency board.
The claim of the employes is without merit and carrier respectfully requests that it be denied.
Without prejudice to carrier's position that this claim is entirely without merit, it should be pointed out that this claim has been made for time and one-half on behalf of regularly assigned pipefitters. These pipefitters were fully paid for the time they worked on their regular assignments, and certainly they had no right to furloughed relief work. The employes, themselves, have contended that the furloughed employes at Shaffers' Crossing should have been called first. There was no loss or damage to the claimants and the agreement does not provide for any arbitrary or penalty for this alleged violation. (See Second Division Awards Nos. 3967, 3672, 2722, 1638.) Further, there can be no justification for time and one-half, as your board has ruled many times that pay for service which is not performed is at straight time rate. (See Second Division Award No. 3932.)
All of the aforesaid in this statement has been a matter of discussion and correspondence between the Employes and the Carrier.
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.
The Division is here called upon to determine whether a furloughed employe from seniority point "A" may properly be used for relief work at seniority point "B", where he holds no seniority, at a time when there are furloughed employes at point "B".
The Division finds that the Carrier did not contravene the appropriate provisions of the relevant agreements when it used Mr. Epperly, the furloughed worker from seniority point "A" at seniority point "B" where he held no seniority, at a time when there were furloughed workers on the seniority register at point "B". 4479-14 469
The Division further finds that Article IV of the August 1954 Agreement, subsequently enacted to Rule 30 of the Agreement of the parties, has modified aforementioned Rule to the extent that relief workers, who indicate desire to do relief work, may be used without regard to the territory or point where they have earned and do carry their seniority. There is nothing in the language of the subsequently enacted Article IV to suggest that the right of the furloughed worker to do relief work was limited to the territory where he had earned his seniority. The parties to the 1954 Agreement were competent to limit the operation of the Agreement if they had wanted to, and this is evidenced by the fact that they specifically excluded extra work from its operative provisions. The well known canon of construction that the naming of one thing is the exclusion of the other has applicability to interpreting Article IV in light of Rule 30.
The Division's finding is further buttressed by the statement of the Organization that even before 1954 furloughed employes were used for temporary work at points. other than where they had earned their seniority, but this was confined to situations where there were no available furloughed employes. (See Organizations' Rebuttal Statement, page 1.)
The Division is constrained to hold that there were no furloughed employes "available" at point "B" other than the one employe there who signed up for relief work and was so used by the Carrier. The other furloughed employes who did not indicate their interest and desire to work in accordance with the provisions of Article IV were not furloughed employes "available" for relief work. This finding is supported by the fact that the claimants in this matter are not furloughed, but, rather, regularly employed employes from point "B".
In summary, the record indicates that in the past furloughed employes from one seniority point have been used for temporary work at a point or points where they enjoyed no seniority; that the canon of construction applied in construing Article IV against Rule 30 does not limit the aforementioned Article only to the territory where the furloughed worker seeking relief work enjoyed seniority; and that a furloughed worker is not an "available" worker for relief work until he has indicated his desire therefor by complying with the appropriate provisions of the relevant agreements. In view of the foregoing, this Division has no recourse but to deny the cognizant claims.