The Second Division consisted of the regular members and in
addition Referee Jesse Simons when award was rendered.
SYSTEM FEDERATION NO. 29, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
(Where "Call" is shown, a carman was called
off the overtime board; where nothing shown,
the second shift car inspector was held over).
Carrier's operational requirements are not such that the car inspector's position on the third shift could be blanked on Sunday night and work the car inspector on the third shift on Saturday, thus giving the relief car inspector Sunday as a rest day-which is really the reason that this claim is before this Board.
(1) There is no claim or contention before this Board that the regular assigned positions at Jackson, Mississippi are improper. Therefore, this Board can only conclude that such assignments are in accord with the agreement.
(2) The only claim before this Board is that the regular relief assignment should not work on Sunday, and that the claimant should work on Tuesday. The facts are that the third trick position on Tuesday is occupied by a regularly assigned employe.
(3) The relief assignment at Jackson, Mississippi has rest days of Monday and Tuesday. Paragraph (F) of Rule 1, supra, does not require that the rest days of a regular relief assignment must be Sunday and Monday.
(4) The claim is not supported by the agreement or past practice, and should be denied.
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 employ e 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 is a claim that Car Inspector C. J. Ming, employed in a relief capacity, was improperly assigned Monday and Tuesday as days off. The relief
sought is payment for one-half day's pay for each Sunday worked and for one day's pay for each Tuesday not worked, such payments to be made retroactive to April 25, 1969.
The work schedule below details the assignment at Jackson, Mississippi of regular relief man, C. J. Ming.
It is clear from the above schedule that all four Car Inspectors at Jackson work a 40 hour week, that all have consecutive days off, and, finally, that Ming, the grievant, is a relief man, relieving Morris on Wednesdays and Thursdays (7 A. M. to 3 P. M.), relieving Wilson on Fridays and Saturdays (3 P. M. to 7.1 P. M.), and, finally, relieving Shirly on Sunday from 11 P. M. to 7 A. M.
When work needs to be performed on the third shift on Saturday night, it is usually for not less than three, or for more than five, hours, and it is performed either by holding over the second shift employe, who is the grievant, or calling another employe to work from the Overtime Board.
Article II, Section 1-(e), and 2-1-(g) of the March 19, 1949 Agreement are clearly controlling in the instant grievance.
Carrier discharged its obligations under Article 11, Section (a), (c), (d), to establish consecutive days off to the Car Inspectors having Regular Assignments, i.e., Carmen Morris, Wilson and Shirly. Carrier then created a Relief Assignment, the design of which is challenged here by the organization.
The challenge of the organization of the design of grievant Ming's assignment misses its mark, first, by ignoring the fact that the assignment complained of is in fact a Relief Assignment, and, second, by asserting erro-
necusly that Ming has a "6 day position" xhich has been dealt with improperly by the Carrier.
The Board finds that the grievant's work assignment is in fact a Relief Assignment and further finds that the Carrier has in fact satisfied all the conditions set forth in Article 11, Section 1-(e), which, it is noted, specifically authorizes the establishment of Relief Assignments "to do the ·:~·oz; necessary on rest days in assignments of 6 or 7 days' service or combinations thereof." The Board particularly notes that (e) only specifies consecutive days of for a relief assignment, and in no way specifies particular calendar days as days off, or as days to be favored as days off, as do paragraphs in Article 11, Section 1-(a), (b), (c) and (d) -all of which, of course, deal with Regular Assignments.
It is abundantly clear that the rules in Article 11 not only establish guidelines, but, in addition, provide within its structure and by the arrangement and sequence of its Sections, for a sequential application of its terms. Thus, Article II deals with Regular Assignments first; it then deals with specific problems affecting Regular Assignments; it then in (e) deals with Relief Assignments, and then in (g) deals with consecutiveness of days off, which is again reiterated as a basic objective to be strived for, and provides finally for non-consecutive days off. In (g), both 5 and 6 each begin respectively with the phrase:
Thus the Board finds that: 1) the very language contained in (e), 2) the specific title given to (e), namely, "Regular Relief Assignments," 3) the actual language used in (g)-5, 6, and 7, when added to the very sequence and arrangement of the guidelhaes in Article 11, establish beyond question,, that Article II of the Agreement meant to and does in fact, provide for specific treatment for Regular Assignments as distinct from Relief Assignments.
Furthermore, the Board takes particular note of Article II, Section 1-(g)-7, which is quoted as follows:
Article 11, Section 1-(g)-7, is unique in that it is the only paragraph in which a value judgment, as distinct from a guideline, is expressed. The Board cannot and should not, nor should the parties to this Agreement, ignore the opprebrium placed on a practice providing overtime to regulars and thereby denying work to Relief Men. The parties clearly intended that Relief Men's work opportunities should not suffer because of the overtime of Regulars.
The organization places great stress on Article II, Section 1-(c), in arguing its claim on behalf of grievant Ming. But, Article 11, Section 1-(c), has no application to this grievant. It does have application to Shirly. However, Shirly, the regularly assigned third shift Car Inspector, has Saturday and Sunday of and thus Carrier is in compliance with Article II, Section 1-(c).
Carrier having complied with the requirements of the Agreement with respect to Shirly still, nonetheless, was in need of a Car Inspector on Sunday night, and had assigned Ming. Apparently, as noted previously, there is work to perform on Saturday night after 11 P. M. and Carrier has been using employes on overtime to do that work. This is not on its face violative of the Agreement, and it is not a cause for complaint or contention that such overtime is violative of the agreement.
The Board finds that citation in Employes' Ex Parte Brief of Award 1444 is not pertinent to the issues raised in this case.
Finally, the Board notes that the organization's basic contention rests on a misconstruance and misapplication of Article 11, Section 1, to wit:
The Beard in denying the instant grievance finds that in fact the third shift assignment, Shirly's, consists of Monday to Friday with Saturday and Sunday off, and further finds that such assignment is in accord with the Agreement. The Board further finds no bar in the Agreement to Carrier's assignment of Ming on Sunday to fill in on the third shift. Finally, the Board finds that the organization's use of the phrase "6 day operation", in the above quoted citation from their Brief, is an erroneous reference to Article 11, Section 1, (a), (b), (c) and (d), which speaks of 5 and 6 and 7 day positions, and by that language merely intending to provide where there is particular work to be performed, 5 or 6 or 7 days, the various levels of preference that are to be accorded to particular calendar days-off of the Regularly Assigned employes.
The Organization has, first, misconstrued the above language as being applicable to Relief Assignments; secondly, it has further misconstrued it by defining the third shift as a "six day position" as applied to Ming, and thus it argues that Ming's assignment must be governed by the Article 11, Section 1-(c), which requires rest days of Saturday or Sunday, or Sunday and Monday. This argument is erroneous, not only because it treats Ming as if he had a Regular Assignment, which he does not, but also treats him as if there was in existence a concrete, defined "six-day position" to which Ming is attached or related, or to which he ought to be attached or related in some manner. Such a view of Article II does violence both to its clear intent and language, and particularly so with respect to "Note to Article II, quoted as follows:
The Board sees no purpose in construing Article II, Section 1-(a), (b), (c), (d), beyond stating that these portions of Article II, Section 1, are not applicable or controlling with respect to the grievant and are confined in their