Award No. 4513
Docket No. 4375
2-B&LE-CM-'64
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Joseph M. McDonald when award was rendered.
PARTIES TO DISPUTE
SYSTEM FEDERATION NO. 57, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. 0. (Carmen)
BESSEMER AND LAKE ERIE RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the controlling agreement the Carrier used other
than mechanics to fill temporary vacancies of foremen.
2. That accordingly, the Carrier be ordered to additionally compensate Carman J. J. Pabyecki for the period of May 31 to June 16,
1961 and Carman W. K. Black for the period of July 3rd to July 7th
1961 the difference of their Carmen's rate of pay and that of Foremen's rate of pay.
EMPLOYES' STATEMENT OF FACTS: Carmen J. J. Pabyecki and W.
K. Black, hereinafter referred to as the claimants, are employed, by the Bessemer and Lake Erie Railroad Company hereinafter referred to as the carrier,
at Butler, Pa.
At Butler, Pa. Car foreman H. J. Diefenderfer was absent from duty from
May 31, 1961, inclusive, Mr. Diefenderfer's position was filled by foreman
F. R. McConnell on three (3) of the twelve (12) days listed in the claim of
Carman J. J. Pabyecki and by Car Foreman M. E. Weikal on the other nine
(9) days of the claim. Both of these supervisory employes, Messrs. McConnell
and Weikal, are regularly employed as foremen at Greenville, Pa., in the car
department. .Butler Carman J. J. Pabyecki was assigned to temporarily fill Mr.
Diefenderfer's position from June 19, 1961 to June 23, 1961, inclusive.
District Car foreman L. R. Crosby at Butler, Pa. was absent from duty
from July 3rd, 1961 to July 7th, 1961, inclusive, Mr. Crosby's position was
filled on the four (4) days listed in the claim by Butler Car foreman H. J.
Diefenderfer. Foreman Diefenderfer's position of car foreman was filled by
Foreman M. E. Weika.l of Greenville, Pa.
This dispute has been handled with all carrier officers designated to handle
such matters, including the highest designated officer of the carrier, all of
whom have declined to make satisfactory adjustment.
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erty. The claim has not been handled in accordance with the Railway Labor
Act and should therefore, be dismissed.
However, without prejudice to the carrier's position as stated above, if
the board assumes jurisdiction and rules on the merits of the issue in dispute,
it is the position of the carrier that the claimants' claims are without merit
for the following reasons:
1. Rule 25(b) of the current schedule agreeement had its inception as Rule 34 of agreement betweeen the United States Railroad
Administration and the employes represented by the Railway Employees' Department of the American Federation of Labor dated
September 20, 1919 and has been in effect on this property since that
date. The interpretation of the rule as issued by the Director General
of Railroads and reaffirmed by Railway Board of Adjustment No. 2,
United States Railroad Administration, stated that it was not the
intent of the rule to prevent gang or other foremen from filling vacancies caused by foremen up to and including the general foreman
laying off. Rule 25(b) has been applied for over forty (40) years in all
crafts on this property consistent and in conformity with the interpretation of the Director General of Railroads and subsequent decision
rendered by Railway Board of Adjustment No. 2, United States Railroad Administration.
2. A careful reading of the full text of Rule 25(b) definitely
establishes that it is a permissive rule rather than a mandatory rule,
containing no prohibition whatsoever against the practice of management transferring the incumbent of an established supervisory position from one area of responsibility to another or to combine the
supervisory responsibilities of regularly assigned supervisors.
3. Second Division, National Railroad Adjustment Board Award
No. 1628, upon which the employes specifically based their position
in the handling of the issue on the property, is not applicable to this
dispute. There is no similarity between the facts, conditions and circumstances in this instant dispute.
On the basis of the facts outlined herein, the carrier respectfully requests
that the Board render a denial award supporting the carrier's denial of the
claim in this case.
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.
Parties to said dispute waived right of appearance at hearing thereon.
It is the contention of Claimants herein, that on 16 days during May,
June and July, 1961, the Carrier improperly assigned Foremen McConnell and
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Weikal to fill temporary vacancies of Car Foreman at the Butler yard Car
Department where Claimants are employed as Carmen on the repair track.
Carrier first objects that the Organization has submitted to this Division
a claim different than that which was processed on the property in that the
claim as submitted here encompasses more days than the claim submitted and
processed on the property. An examination of the claim as submitted here
indicates that it is a claim for sixteen days of alleged violations; the same
as that processed on the property, and this objection of the Carrier is overruled.
Rule 25 (b) of the Controlling Agreement reads as follows:
"(b) Should an employe be assigned temporarily to fill the place
of a foreman, he will be paid his own rate-straight time for straighttime hours and overtime rate for overtime-hours-if greater than the
foreman's rate; if it is not, he will get the foreman's rate. Said
positions shall be filled by mechanics of the respective craft in their
departments." (Emphasis ours)
It is the Carrier's position that this is a permissive rule and contains no
prohibition against management transferring the incumbent of a supervisory
position from one area of responsibility to another.
The Organization contends that the rule is mandatory once a decision is
made to temporarily assign an employe to fill the place of a foreman. That
employe must be a mechanic of the respective craft from that department.
This identical Rule and similar rules have been examined by this Division
on several occasions. The keystone award appears to be our Award 1628. Carrier attempts to distinguish Award 1628 and subsequent Awards from the
instant dispute. Award 1628 is factually distinguishable in that the temporary
assignment was there filled by a former supervisor who was at the time of
the assignment working as a Machinist at another point. But there the distinction ends. This Division's interpretation of the Rule in Award' 1628 clearly
separates the first and second sentences of the Rule, and holds that the
second sentence contracted the work in question to mechanics of the respective
crafts in their departments.
It has been urged that Award 1628 and the Awards based upon it should
be repudiated by us, as .improper interpretations of this Rule. A re-examination
of the Rule, the record made herein, and our former Awards leads us to
decline such action.
The unequivocal language of Rule 25 (b) gives a contractual right to the
temporary vacancy of a foreman to the mechanics of the respective craft in
their departments whenever the Carrier determines to fill such vacancy.
AWARD
Claim 1: Sustained.
Claim 2: Sustained. Claimant Pabyecki to be additionally compensated for
the dates of May 31, June 1, 2, 5, 6, 7, 8, 9, 12, 13, 15 and 16, 1961; Claimant
Black to be additionally compensated for the dates of July 3, 5, 6 and 7, 1961.
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Compensation to be the difference they received for such dates at their Carmen's rate of pay and that of the foreman's rate of pay.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 22nd day of May 1964.