Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7899
SECOND DIVISION Docket No. 780+
2-MP-CM-'79

The Second Division consisted of the regular members and in addition Referee Abraham Weiss when the award was rendered.

System Federation No. 2, Railway Employes'

Department, A. F. of L. C. 16 Oe
Parties to Dispute: ( (Carmen)
(
( Missouri Pacific Railroad Company

Dis=pute: Claim of E~nployes:

1. That the Missouri Pacific Railroad Company violated rule 3 and

Note to Rule 5 of the controlling Agreement, September 6, 1976,

when they arbitrarily established a Holiday force of Cax°lnen

E. C. Selmchert, R. F;. Fioock, and E. K. Hanes,, Jr. (sic)

2, That the tv"issouri Pacific Railroad Company be ordered to compensate

Carmen J. A. Schroeder, J. f. Sanse~rew, and 2.T. R. Dietzel in

the amount of eight (8) hours each at the punative rate account of

violation of September 6, 1976. (sic)

Findings:

The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employs or employs= involved in this dispute are respectively carrier and employs within the meaning of the Railway Labor Act as approved June 21, 1g31+.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Claimants were assigned by bulletin to the "Little Repair Track". Notice eras posted that that facility along with other named repair facilities would be closed on Monday, September 6, 1876 (Labor Day), which, were it not a holiday, would be a regularly scheduled work day for Claimants.

Though the posted notice abolished all jobs no'-wrwlly assigned to work Labor Day, on the morning of September 6, 1976, it was determined that three carmen would be required to repair freight cars which were considered "hot loads". Carrier started at the top of the seniority roster and called three car:nen holding assigra:ents at the Evans Track and the "Big Repair Track", thereby giving rise to -the instant claim.
Form 1 Award No. 7899
Page 2 Docket No. 7804
2-MP-CM-°79
Note to Rule 5 of the Agreement reads:

"Rule 5. Note: Notice will be posted five (5) days preceding a holiday listing the names of employees assigned to work the holiday. Men will be assigned from the men on each shift who would have the day on which the holiday falls as a day of their assignment if the holiday had not occurred and will .protect the work. Local Cotrr.:nittee will be advised of the number of Y,,-.en required and will furnish names of the men to be assigned, but in the event of failure to furnish sufficient cv_n_r-i roTees to complete the reauirernents, the juni.or men on each shift will be

__._.~ ._._.~_..r

oas:ignedo'''_(Underlin i ty added.)

-

Numerous disputes between the parties over the application of the above-,quoted rule have been before this Board. In each dispute called to our attention the rosition of the Employees ·,·ms upheld. Carrier argues, however, that the instant dispute is on a d:i.fferent footing. It alleges that the Local Chairmen refused to furnish a list of carrnen for "standby". The Employees allege that there vas no specific request for a "standby" list for a specific facility.

We find that the Note to _F`1.ile 5 does not. 1 end itself to a "standby" list. However, if we could determine from the record that Carrier did request a list of canTlen for a specific repa-i.r facility, "standby" or otherz~;ise, our decision here would be different. The Note to Rule 5 is not a tool designed fox evasiveness on the part of the Local Committee to place Carrier in a vulnerable position. But from the record we cannot determine that Carrier did request a list for a specific location.

Award No. 5236 (Johnson) among others, states clearly:

"The note to Rule 1 clearly provides that when positions have to be filled on holidays they shall he filled from among those who would have worked if the holiday had not occurred."

Award No. 7704 (Marx) holds;

"In the particular circumstances related herein, the Carrier obviously could not have fully co:npli.ed with the Note to Rule 5, since it could not have given the five days' notice for work requirements unanticipated until the holiday itself. But aside from this point of timing, the Board finds no justification for the Carrier to believe itself free or". the requirements of the remainder of the Note to Rule 5, nor does the Carrier obviate its responsibility under

Form 1 Award No. 7899
Page 3 Docket No. 780+
2-MP-CM-'79

"the Note by requesting help in work assignment from the Carmen on duty,"

On the basis of the numerous awards between the parties on the same subject matter, particularly the reasonings set forth in Award No. 5956 (Zwnas), we will sustain the claim at the punitive rate.

A W A R D

Claim sustained.

NATIONAL RAILROAD ADJUSTM-EEi3`1' BOARD

By Order of Second Division

Attest: Executive Secretary
National railroad Adjustment Board

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_Rt5s~tmarie 3rasch - Administrative Assistant

Dated a&hicago, Illinois, this 19th day of April, 1979.