Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11721
SECOND DIVISION Docket No. 11581
89-2-88-2-64
The Second Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE: (
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM
:
1. That the Missouri Pacific Railroad Company violated Rule 12 of the
controlling agreement of September 1, 1988, as amended, when General Car Foreman Kipp refused to post job bulletin Y-8 in the Settegast yard due to a vacancy which is required as per Rule 12 of the controlling agreement.
2. That accordingly, the Missouri Pacific Railroad Company be ordered
to compensate Carman C. Miller in the amount of twelve (12) hours
per day for
each day that he was nut allowed to fill this vacancy, commencing on January
25, 1987 and continuing until violation is corrected.
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 employee involved in this
dispute are respectively carrier and employee 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.
Parties to said dispute waived right of appearance at hearing thereon.
The Organization contends that the first sentence of Rule 12 (c),
reading:
"Vacancies, except vacation vacancies, known to be
of fifteen (15) days or more duration will, if the
vacancy is to be filled, be advertised as 'temporary vacancies' in the manner prescribed in (b) of
this Rule 12."
was violated when Carrier failed to temporarily bulletin Carmen Job Y-8 in
the Settegast Train Yard when the incumbent was unable to fill the assignment
account being laid up because of an on-duty injury. The Organization contends
that the incumbent notified his Foreman that he would be off work more than
fifteen days. During this time the Carrier filled the vacancy on "an as
needed basis."
Form. l Award No. 11721
Page 2 Docket No. 11581
89-2-88-2-64
From the facts before us it seems conclusive that Carrier knew that
the vacancy on Job Y-8 was known to be of "fifteen (15) days or more duration." The facts are also conclusive that the vacancy was filled during this
period. The literal language of the Rule requires, when two conditions are
met, knowledge that the vacancy will extend beyond fifteen days and the vacancy is to be filled, that the vacancy be bulletined. This was not done and the
Claim will be sustained.
The amount initially claimed was for 12 hours pay, five days per
week, until the violation was corrected. There is no basis to award more than
8 hours pay for each scheduled workday. Accordingly, the amount claimed will
be reduced to 8 hours pay per day. Also, there is evidence that Job Y-8 was
abolished due to change of assignments as of March 3, 1987. Carrier's liability will terminate on that date. Accordingly, the Claim is sustained for 8
hours pay at straight time rates, for each day, except Fridays and Saturdays,
commencing January 25, 1987, and ending March 3, 1987.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 3rd day of May 1989.