Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7+11
SECOND DIVISION Docket No.
7336
2-B&M-CM-'77
The Second Division consisted of the regular members and in
addition Referee James C. McBrearty when award was rendered.
( System Federation No. 18, Railway Employes'
( Department, A. F . of L. - C . I . 0 .
Parties to Dispute: ( (Carmen)
(
( Boston and Maine Corporation
Dispute: Claim of Employes:
(a) That the Boston and Maine Corporation violated the controlling
agreement, namely Rule
13,
Paragraph (c) thereof, beginning on
August 11,
1975
and until Cayman R. W. Lowe was returned to the
Carman's position in question, at Lawrence, Mass., after being
avsrded same on March
5, 1976. -
(b) That accordingly the Boston and Maine Corporation be ordered to
additionally compensate Cayman R. W. Lowe at the Carmen's time and
one-half rate of pay on a daily basis for all overtime accrued on
the Carmen's position in question at Lawrence, Mass., beginning
on August ll,
1975
and until claimant was returned to the disputed
Carmen's position after being awarded same on March
5, 1976.
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,
193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Padties to said dispute waived right of appearance at hearing thereon.
At issue here is the meaning of the phrase "fails to qualify for the
new position" in Rule
13(c).
The record indicates that on June 10,
1975,
a one Hubert P.
Brennan,
a Cayman, was assigned to the Roadman position at Lowell, Massachusetts.
As a result of an incident with a Mr. G. V. Moore of G. V. Moose Lumber Co.
on July
3, 1975,
Mr. Brennan was prohibited by Mr. G. V. Moore from
entering his property. After a hearing on July 24, Cayman Brennan was
removed from the Roadman position at Lovell on August 11, and displaced
Claimant at Lawrence, Massachusetts on August 12,
1975.
The position
Form 1 Award No. 7+11
Page 2 Docket No.
7336
2-B&M-CM-'77
held by Claimant at Lawrence, was formerly held by Brennan, and Vacated by
Brennan when he took the Roadman position at Lowell.
Now, Rule 13(c) states:
"An employee exercising his seniority rights for, or
assigned on account of application, to a vacancy under
this rule will lose his rights to the job he left. If
after a fair trial he fails to qualify for the new position,
he will have to take whatever other position ma be open in
his craft. Emphasis added
Now, in the record before us, Carrier's General Foreman clearly
states that Cayman Brennan "failed to qualify as a Roadman, but not as a
Cayman." (Emphasis added)
Thus, Brennan lost his rights to the job he left at Lawrence, and was
required to take whatever position was open in the Cayman craft, pursuant
to the terms of Rule 13(c).
Cayman Brennan could not perform all the duties of Roadman at Lowell
since he could not enter the property of the G. V. Moore Lwnber Co. It
is irrelevant that this restriction was placed upon Brennan by an outside
party, rather than Carrier. -
As long as Carrier required the occupant of the Roadman position to
enter the premises of the G. V. Moore Lumber Co., and Brennan was forbidden
to do so, at the "request" of this lumber company, Brennan "failed to
qualify" for the Roadman position.
Webster's Third New International Dictionary defines "qualify as
follows:
"vi l: to become fit (as for an employment): become capable:
measure up to or meet a set standard or requirement."
Therefore, based on all of the foregoing, the Board finds that Carrier
violated Rule 13(c) of the Agreement.
However, the second part of the Claim requesting time and one-half for
overtime accrued on the Carman's position at Lawrence is very vague and
indefinite. Petitioner only refers in the record to "lost numerous hours
of overtime work at Lawrence," but there is absolutely no showing that any
overtime was indeed worked. Consequently, we must deny that part of the
Claim.
Form 1
Page 3
Award No
. 7+11
Docket No. 7336
2-B&M-CM-'77
A W A R D
Part 1 of Claim upheld.
Part 2 of Claim denied.
NATIONAL RAILROAD ADJUS TMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad. Adjustment Board
~marie Brasch - Administrative Assistant
Dated a~'Chicago, Illinois, this 2nd day of December,
1977.
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