NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee John H. Dorsey when award was rendered.
SYSTEM FEDERATION NO. 42, RAILWAY EMPLOYES'
DEPARTMENT, AFL - CIO
(CARMEN)
EMPLOYEES' STATEMENT OF FACTS: The Claimant, R. L. Owens, Carman Helper, hereinafter referred to as the Claimant, holds seniority. date of 4-23-1952 on the Freight Carman Helper's roster of the Atlantic Coast Line Railroad, hereinafter referred to as the Carrier, at Lakeland, Florida. J. Sweet holds seniority date of 4-23-1952 on the same roster, their positions on roster being denoted by a 1 and 2 opposite their seniority dates. The 1 being opposite the Claimant's seniority date and he being listed before J. Sweet denotes the Claimant being the senior of the two. (See Exhibit "A.")
The Carrier called and promoted to a mechanic's position the junior furloughed Carman Helper J. Sweet to perform relief work from July 5th to August 10th, 1966.
This claim has been progressed successively on appeal, as prescribed under the controlling agreement, up to and including the highest designated officer with whom such disputes are handled and the Carrier has consistently declined to make adjustments.
The agreement effective November 11, 1940, as amended, is controlling.
Carrier reserves the right, when it is furnished with ex parte submission filed by the petitioner in this case, to make such further answer and defense as it may deem necessary and proper in relation to all allegations and claims as may have been advanced by the petitioner in its submission and which have not been answered herein. (Exhibits not reproduced.)
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.
The Division of the Adjustment Board has jurisdiction over the dispute involved herein.
During the period involved in this dispute-July 5-August 10, 1966vacancies at Carrier's Shops in Lakeland came into being due to Carmen taking vacations. Furloughed Carman Helper J. Sweet was used in vacation relief during the period. Claimant, a furloughed Carman Helper senior to Sweet on Carmen Helpers Seniority Roster-Lakeland, filed claim that he, because of his seniority, should have been assigned to the work.
Both Claimant and Sweet were furloughed at Lakeland Shops on November 29, 1963. Thereafter, Claimant was employed in Carrier's Store Department at Lakeland as Laborer. He was so employed during the period here involved. The collective bargaining agent for Laborers in that Department is Clerks. Claimant, under Clerks' Agreement, established seniority in the Department effective December 16, 1963.
Rule 16-A of the Shop Crafts Agreement, which includes Carmen, reads in material part:
On June 16, 1966, prior to the work periods here involved, Claimant notified Carrier in writing:
This satisfied the prerequisite for consideration of assignment of Claimant to Carmen relief work as prescribed in Rule 16-A(2).
The issue is whether Claimant, being employed on a regular assignment in the Stores Department, was available to work the relief assignment filled by Sweet.
Immaterial in the resolution of the issue is Claimant's holding seniority under more than one agreement. His rights under a particular agreement are not divested or adversely affected, in the absence of a contract bar, because of vested rights under another agreement. In the railroad industry it is commonplace for an employe to acquire and enjoy rights under more than one collective bargaining agreement on the same property.
Carrier's defense is premised on the sentence in Rule 16-A(2) which reads:
From that it argues that inasmuch as Claimant had a regular assignment in the Stores Department he was not at all times available for relief work on Carmen assignments. This on Carrier's part is a selfserving presumption. Claimant's June 16, 1966, request for Carman Relief Work, supra, must on its face, in the light of Rule 16-A(2), be construed as a declaration by him that he would be available for such work. What might be the consequence of his deserting his Store Department position to accept Carmen relief assignments is not material.
Claimant had a vested contractual right to Carmen relief work to the extent of his contractual seniority rights under Carmen's Agreement. He having expressed that he would be available to fill such assignments passed the burden of proving that he "would not at all times be available for such services" to Carrier. We hold that Carrier had the contractual obligation to offer Carmen relief assignments to Claimant, merited by his seniority standing and in response to his June 16, 1966, application for such assignments, until such time as it was factually demonstrated that he "would not at all times be available for such service." Whether he would desert his Store Department position to accept the Carmen relief assignments, regardless of consequences, is, in the posture of this case, conjecture. Carrier could not presume what Claimant would do upon the contractually required offer of a Carmen relief assignment. The election was contractually vested solely in Claimant. We will sustain the Claim.