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Form 1

)T).TIONAL R:ULROfa.Il A.DJTJSTM:SJ:TT BOAP.D

SECO?ill Dr/ISIOI.J

Award !:!o. 6764

Jacket :ro. 6606

2-B&OCT-CM-'74

Tl:.e Second :Jivision consisted of the regular members and in addition Referee Dana E. Eis.:::!hen when award was rendered.

Pa!:ties tc Dis'Dute:

( S ·stem Federation No. 6, Railway

( Department, A. F. of L.

( ( Car::nen)

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Employes'

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   ( Ba.2..timore and Ohio Chicago TerminaJ. Rail.road Company

   
   

   Dispute: Claim of Employes:

   1. That the BaJ.tirnore and Ohio Chicago Terminal Railroad Company violated the terms of the current agreement when it failed to call Carman Dewey Stu."llp for service July 19, 1972 to August 2, 1972.

   2. ·:nat accora.11:5ly, said Compan - be ordered to com-censate Carman Stump in the amount of eight (8) hours each day lost as a result thereof, a total of fourteen (14) days.

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Findings:

Tr e Second DiYision of the Ad,justment 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 emp oye witcin the meaning of the Railway Labor Act as approved une 21, 1934.

This Division of the Adjustment Board has jurisdiction over the

dispute involved herein.

Parties to said dispute waived right of a pearance at hearing thereon.

Claimant Dewey Stump was e:nployed by Carrier as a carman at Barr Yard, RiverdaJ.e, Illinois. On October 15, 1971 Mr. Stump was furloughed

and under date of November 16, 1971 he filed written request for relief work at that point under the provisions of :\rticle rl of the August 21, 1954 Agreement. Said Article rv reads in pertinent part as follows:

"l. The Carrier shall have the right to use furloughed employees to perform extra work, a.. d relief work on regular positions during absence of regular occ pants, provided such employes have signified in the manner provided in paragraph 2 hereof of their desire to be so used. This provision is not intended to supersede rules or practices which permit employees to :place themselYes on vaca.'1cies O!:. preferred. :positions in

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Page 2

Award No. 6764

Doclrnt No. 6606

2-B&OCT-CH- 174

"their seniority districts, it being understood, under these circumstances, that the :fu.rloughed empl::Yjree ,rill be used, if the vacancy is to be filled. This does not supersede ru1es that require the filling of temporary vacancies. It is also understood that management retains the right to use the regular employee, u.. der pertinent rules of the agreement, rather than call a furloughed employee.

1. Furloughed employees desiring to be considered available to perform such extra and relief work will notif'y the proper officer of the Carrier in writing, with copy to the local chairman, that they will be available and desire to be used for such work. A furloughed employee may withdraw his written notice of willingness to perform such work at any time before being called for such service by giving written notice

   to that effect to the proper Carrier officers, with copy to the local chairman. If such employee should again desire to be considered available for such service notice to that effect - as outlined hereinabove - must again be given in writing. Furloughed employees who would not at all times be available for such service will not be considered available for extra and relief work under

   the provisions of this rule. Furloughed employees so used will not be subject to ru1es of the applicable collective agreements which require advance notice before reduction of force.n

   
   

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   ·On December ll, 1971 Clall!lant accepted employment as a carman with the C&O Rail.way Col!lIJany at Rockwell Street, Chicago, Illinois, in which capacity he remained until August 3, 1972. During July J.972,

   two temporary carman vacancies occurred at Barr Yard due to illness and personal injury of two regularJ.y assigned carmen. Carrier asserts

   and Claimant denies that he verbally was offered this relief work and declined same. In any event, the temporary vacancies were filled by Carrier on July 19 and 20, 1972 by hiring two new employees. On August 2, 1972 a permanent position opened up at Barr Yard with the retirement of a regularJ.y assigned carman. Claimant was recalled to fill that vacancy and he thereupon resigned his employment with the C&O and returned to work for Carrier.

   
   

   On August 20, 1972 the Organization on behalf of Claimant presented the instant claim for fourteen days' pay for the period July 19

   through August 1, 1972 inclusive on the grounds that the hiring of new employees to fill the temporaI""J relief positions violated his contractual rights. Specifically, Claimant alleges violations of Rule 18(g) and of .Artie.le r,r of the August 1954, set forth supra. Rule 18(g) is a Restoration of Service rule which reads as follows:

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   '' ( g) In the estoration of forces, senior laid­ off men including those who have waived their rights under paragra h (c) of this rule, w1ll be given preference in returning to service,if avail.able vrithin a reasonable time, a..11.d sha.] 1 be ret1.1rned to their form.er positicns if possible.

   The local committee will be furnished a list o

   men to be restored to service.!T

   
   

   Carrier bases its denial of the claim on several points.

   Insofar as Rule 18(g) is concerned, Carrier maintains that this case

   does not invol,re a restoration of services inasmuch as only a temporary

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   vacancy on two existing positions were fiJJed. In respect of the

   a.J J eged .itrticle I ! violation, Carrier offers a two-pronged rebuttal:

   l) Claimant oraJ 1:r vrithdrew :iis request for relief worl( upon accepting

   1is :::&o -=nr.910 .Tner.t s11d orally- declined an oral tend.er of the temporar:"­

   ,raca.:icies on or about July 19, 1972 and 2) Claimant by necessary

   
   

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   act of accepting other employment with the C&O Railway Company on

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   . December 11, 1972.

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   • Careful consideration of tne record h r6in compels a to 0 8l i2

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   • tha1: P.,1le 18 is not -n cu-e!'l1...r. here iniroked.. ina..s11r:.1ch a.s :10 red1_1ction

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in t orce is demonstrated on tr1ese facts. We have held on n1Jmerouz occasions that filling a temporary- vacancy is not a restoration of se rices. ..A_wa.rds 632 1262 1912, 3130.

Such finding however, does not obviate the claim for violation

of Article IV. , The issue presented therein is in most essentials the

same as that presented in our earlier Award No. 5725 and we conclude that a similar resolution of the instant claim is warranted.

The record and the pertinent agreement provisions demonstrate that written withdrawal of the relie work request under .L\rticle rv

.' is req_uired. Carrier asserts that oral withdrawal was made by clai:.rnant

but offers no proof of same. Claimant denies withdrawing his request.

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?e cannot resolve this conflict in testimony but !mlst stand on the express contractual provision and hold that absent a showing of written ":·:-i tt.dre. ·:-tl or ": ol:at:. ."'e e" ride!lce O!! the record of other 1-rithd e.wal.

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ClaL ant's request was still viable on July 19, 1972.

Carrier also asserts that Clajmant verbaJJy refused a verbal tender of the temporarJ relief assignments on July 19, 1972. Claimant denies such oral offer and refusal. ie have carefull:ir combed the ecord

for corroboration of a re sal. to accept such assignment but there is

no such supporting evi,ience on the record.

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Finally, Carrier argues t h.a t inasmuch as Claimant had a regular assignment on the C&O he was by necessary implication unavailable for relief work on Carmen assigrmients at Barr Yard. We conclusively

resolved this point in our earlier award, holding that ''Carrier could

not presu."n.e what Claimant would do upon the contractua.J..J y required

.offer of a Carman relief assigrunent. The election was contractua.J J.y vested solely- in Clai ma...Y1t. '' Awa.rd 5725. In a.J J of the foregoing circumstances the claim must be sustained.

Without prejudice to its substantive case, Carrier submitted evidence to demonstrate that the claim for 14 days was excessive. In this connection the record shows that the temporary employee hired

on July 19, 1972 worked a total of 10 days. This evidence is

uncontroverted by Claimant and, accordingly, the clajm will be sustained to the extent of 10 eight hour days.

AWARD

Claim sustained to the extent indicated in the Findings•

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Attest: Executive Secretary

NATIONAL

By Order of Second Division

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National Railroad Adjustment Board

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By

semarie Brasch - Administrative Assistant

Dated at Chicago, Illinois_, this 26th day of September, 1974.

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