The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when award was rendered.
EMPLOYES' STATEMENT OF FACTS: A diesel locomotive shop is maintained at Vancouver, Washington by the carrier. Machinists are employed on each of the three shifts in this diesel locomotive shop. An overtime list, i.e., a list of Machinists desiring to work overtime, is maintained on each of the three shifts in the diesel locomotive shop pursuant to Rule 14 of the November 16, 1957 Shop Craft Agreement, reading:
A vacancy in a position of Machinist assigned to the third shift, working five day per week, occurred in the diesel locomotive shop, commencing with August 4, 1969. Larry James Bainter, who had no prior employment relationship with the Carrier, and who was not a qualified Machinist, was employed to fill this vacancy. Mr. Bainter continued to fill the position of Machinist up were working at their regular assignments on a full time basis during the claim period. The organization has failed completely to meet the burden of proof in defining the extent of the alleged violations or how any employe was adversely affected. On the contrary, the carrier has repeatedly asserted that absent the employment of Mr. Bainter, no additional overtime would have been worked. In its Award No. 4974, Carmen v. Southern Ry., Referee Howard A. Johnson, this Division of the Adjustment Board correctly held that:
Petitioner is seeking payment by the Carrier to employes on the posted overtime list for Machinists, in rotation, for all days worked by one Larry Bainter as a machinist between August 4 and November 5, 1969, inclusive, at time and one half their regular rate of pay. It claims that employment of Mr. Bainter as a machinist during said period was a violation of Rules 34 and 81 of the Controlling Agreement between the parties. Said rules read:
The Carrier, in denying the claim, alleges that Mr. Bainter was a qualified mechanic and that although he may not have actually completed four years of experience at the machinists' trade, he had received training in the United States Air Force and worked as a mechanic in such service to an extent comparable to that of at least an apprentice and therefore met the requirements of Rule 81. In addition, the Carrier raises two alleged defects of a procedural nature to defeat the claim.
There is no dispute that only mechanics or apprentices regularly employed as such, who have qualified in accordance with Rule 81, may be employed to perform the work of the classification and be paid the rates therefore as set forth in Rule 82 of the Controlling Agreement. The parties are at odds as to whether Mr. Bainter met this standard.
A careful study of the record discloses that Mr. Bainter commenced Onthe-Job training for a Power Production Specialist in the Air Force on or about May 2, 1966. It would appear that such basic training was completed on or about December 28, 1966. Although not specifically so set forth in the service record, it may be inferred that from that date until his separation from active service on April 14, 1969, he performed the duties of a Power Production Specialist which may be of a nature comparable to that found in the machinists classification of work in Rule 82. This is a period of two and a third years of which it may be said that Mr. Bainter plied the trade. The Controlling Agreement requires that a mechanic shall have had at least four years of experience art the trade. Even adding the one month he worked as an automotive mechanic after his release from service, his work does not permit a finding that he met the four year requirement of the Rule. Carrier's satisfaction with the experience indicated on his application and his early performance on the job, does not permit it to unilaterally grant him mechanic's status. Nor are we empowered to change, modify or make exceptions from the clearly stated terms of the Agreement. No meaningful purpose would be served in a review of the rationale behind this qualification agreed to by the parties.
No effort was made by the Carrier to equate the training received by Mr. Bainter in the Air Force with that afforded apprentices pursuant to Rule 84 of the Controlling Agreement which provides:
The mere assertion by the Carrier that it was equivalent is not probative evidence necessary to enable us to make an evaluation of the two programs and reach a valid conclusion. This is not a holding that training and experience elsewhere, including such outside of the railroad industry, is not qualifying for the mechanic's classification. When challenged, the Carrier has the burden of proving that the contractual standards have been met. This was not adequately done herein.
It therefore must be held that Rule 34 was violated when Carrier assigned Mr. Bainter to machinist mechanic's work and paid him the rate therefor.
The Carrier's contention that the Organization, in processing the claim, did not meet the time elements of Rule 37, is dismissed. The original claim was filed, in writing, long before the expiration of required time. The fact that the local chairman, appended to his notices of appeal letters repeating his original complaint of September 27, 1969 with language which appears to indicate that the claim was being initiated at the time, cannot be construed in the manner submitted by the Carrier.
The Carrier's argument that Petitioner's failure to bring the claim in the name of specific claimants must also be dismissed. Those entitled to restitution, if any, are readily identifiable from Carrier's own records, the overtime lists being in its possession. Only one employe could be afforded compensation for the alleged lost work opportunity for each day of the claimed violation of Rule 34. See Awards 1998, 2195, 3688 and Third Division Awards 9205, 10238, 10533, 10576 and 12388.
The argument that no compensation was due any machinist because no overtime work would have been assigned, non-essential work being deferrable, is defeated by Carrier's own statements of the urgency to protect the work as the key factor in its haste to place Mr. Bainter in the machinist mechanic's classification and assign him to the work.
It must be four:d, however, that the Carrier initially acted in gocd faith. It relied on information in Mr. Bainter's application which gave it reason to believe him qualified for the mechanic classification. When this judgment was first questioned by the Organization on September 12, 1969, it became incumbent upon it to carefully review and investigate the facts and be in a pcsition to support its decision shortly thereafter. It must be held that the date the Carrier became aware of a possible violation of Rule 34 is the appropriate date that compensation for lost work opportunity should commence. The date of the written claim of September 27, 1969, is therefore a proper date on which the remedy is to take effect.
Our Awards have, for proper circumstances, limited compensation for time not worked because of a. violation of a Rule by the employer, to pro-rata pay. Such circumstances prevail herein.
Therefore, we find that the Carrier violated Rule 34 and that machinists of the Vancouver, Washington overtime list, during the period commencing