The Second Division consisted of the regular members and in
addition Referee Joseph S. Kane when award was rendered.
STATEMENT OF FACTS: At the time involved in this claim, Thomas Schmidt, hereinafter referred to as the Claimant, was an employe of the Detroit and Toledo Shore Line Railroad Company, hereinafter referred to as the Carrier, in the status of furloughed carman helper.
Carrier was in need of additional men to augment its force of carmen and in the absence of available qualified carmen, did, beginning January 1, 1965, assign furloughed painter R. Sorge to a position of carman, purportedly in the status of a promoted helper. Painter Sorge held no seniority in the classification of caiman or carman helper.
The Claimant held seniority as carman helper and was listed on the Carman Helper Seniority Roster with date oif September 23, 1963. Under date of -January 7, 1965 Carrier directed letter to Claimant notifying him of his recall from furlough, to which notice Claimant immediately responded.
This dispute has been handled with Carrier officials up to and including the highest officer designated by the Company, all of whom have declined to adjust it.
The Agreement effective January 1, 1959 as subsequently amended and the Agreement dated June 4, 1953 are controlling.
POSITION OF EMPLOYES: It is respectfully submitted that the Carrier erred when on the dates of claim an employe classified and rostered as a
The wording "constitutes the entire agreement in effect" also gives weight to Carrier's argument that no other agreements, not cited or included tberein, have any effectiveness.
Subsequent to the instant case being progressed, the employes on the property have progressed a claim for another carman for August 28, 1966 account of a painter doing carmen's work, setting forth their position that the painter is not a carman and should not be used as a carman as he is on a separate seniority roster as a painter and should be used as a painter only. Conference was .held on the property involving the above cited claim, on October 19, 1966, and as a result of the conference the employes' grievance committee agreed to drop the claim with the understanding that the committee would take up with its Grand Lodge a request for a dove-tailing of the various seniority rosters of employes covered by the carmen's craft and that the carrier was permitted to continue to use painters as carmen when they felt the need to do so, until the matter could be disposed of between the local committee and the Grand Lodge.
It can, therefore, be seen that the carrier's position with regard to the instant dispute is supported by the local grievance committee.
Based on the above the Carrier requests this Board to find that the Agreement .has not been violated and to deny the claims.
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 dis. pute 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.
This claim arose when an employe holding seniority as a painter was called from furlough to perform service as a carman. There was no carman furloughed or available for service. The claimant was furloughed as a carman helper and contends he should have been called for service. The carrier contended that the current agreement did not provide that carmen must be selected from the roster of carman helpers. In addition, the greater experience of the painter fulfilling the duties required was an exercise of management's prerogatives.
The claimant relied on Letter of Understanding dated 1947, which provided for the promotion of carmen helpers. In addition, a national agreement executed in June 1953, Article III entitled "Upgrading Carmen Helpers and Apprentices" wz:s offered in support of the claimant's contention.
The question to be determined: Is the national agreement of June 1, 1953, Aill in force and effect?
We can dispose of the Memorandum of Agreement of 1947 by stating that it was superseded by the provision of Rule 102 of the current agreement, both agreements being between the parties to this dispute.
The national agreement of June 1953 was executed by the Eastern Carriers' Conference Committee, as pertains herein, and the Carmen Organization. In Article V of this Agreement, it was considered a separate agreement by each of the said carriers, jointly represented by the committee, and remains in effect until changed or modified in accordance with the provisions of the Railway Labor Act as amended. This agreement was never changed or modified as provided for.
In Third Division Awards 3813-11331, the final agreement was between the same parties at the local level. In the instant dispute, we have a national agreement executed on an industrial and geographical level which to change or modify would have to be accomplished as provided for or by agreement as was done in Rule 99 wherein a national agreement was incorporated into the current agreement.
In Second Division Awards 3748-4688, the principle is enunciated that the carrier has the right to select the best qualified employe within the craft or class wherein the employe holds seniority. This issue is not in dispute here.
In the instant claim the work was carman's work. The agreement of June 1, 1953, is still in force and effect. Article III provides: