Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12191
SECOND DIVISION Docket No. 12066
91-2-90-2-243
. The Second Division consisted of the regular members and in
addition Referee Barry E. Simon when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
(Chesapeake and Ohio Railway Company)
STATEMENT OF CLAIM:
1. That the Chesapeake & Ohio Railroad Company (CSX Transportation,
Inc.) (hereinafter "carrier") violated the provisions of Rule 27 1/2 .if the
Shop Crafts Agreement between Transportation Communications Internationai
Union - Carmen's Division and the Chesapeake & Ohio Railroad Company (CSX
Transportation, Inc.) (revised June 1, 1969) and the service rights of Cayman
Stanley Reed (hereinafter "claimant") when on December 18 and 19, 1986 the
carrier called Cayman Randy Meeks in violation of Rule 27 1/2 of the Controlling Agreement.
2. That, accordingly, the claimant is entitled to be compensated for
sixteen (16) hours at the applicable straight time rate for the carrier's
violation of the aforementioned Rule.
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 employes 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.
On dates of claim, wh::le Claimant was in furlough status, Carrier
used an employee junior in sen::ority to Claimant to fill a two day vacancy as
an ABD valve repairman in the Air Brake Shop at Carrier's Raceland Shop.
Claimant had requested he be used for relief work under Rule 27-1/2, which
reads, in pertinent part, as fellows:
Form 1 Award No. 12191
Page 2 Docket No. 12066
91-2-90-2-243
"(a) The Carrier shall have the right to use fur
loughed employes to perform extra work, and relief
work on regular positions during absence of regular
occupants, provided such employes have signified in
the manner provided in paragraph (b) hereof their
desire to be so used. This provision is not intended
to supersede rules or practices which permit employes
to place themselves on vacancies on preferred posi
tions in their seniority districts, it being under
stood, under these circumstances, that the furloughed
employe will be used, if the vacancy is filled, on
the last position that is to be filled. It is also
understood that management retains the right to use
the regular employe, under pertinent rules of the
agreement, rather than call a furloughed employe.
(b) Furloughed employes desiring to be considered
available to perform such extra and relief work will
notify 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.
(c) Furloughed employes who have indicated their
desire to participate in such extra and relief work
will be called in seniority order for this service.
low
Where extra lists are maintained under the rules of
the applicable agreement such employes will be placed
on the extra list in seniority order and used in
accordance with the rules of the agreement."
The Carrier submits the applicable Rules allow it to make assignments
under Rule 27-1/2 based upon the qualifications of the employees, rather than
on a strict seniority basis without regard to qualifications. It notes Rule
27-1/2 requires employees be used "in accordance with the rules of the agreement," and argues those Rules dealing with relief service and temporary vacancies all provide for the use of qualified employees. Carrier further asserts
Claimant was not on the list of employees who were qualified to repair ABD
valves.
The Organization argues Rule 27-1/2 is clear and unambiguous, making
no reference to qualifications. It asserts Carrier had a duty to allow Claimant a fair opportunity to demonstrate his abilities to perform the work in
question. Further, the Organization denies the Carrier's allegation Claimant
lacked the requisite qualifications for the job in question.
At the outset, we must determine whether or not Rule 27-1/2 contemplates the use of employees strictly on a seniority basis without regard to
qualifications. It is our determination it does not. First, we note the Rule
requires reference to other Rules of the Agreement; it does not stand alone.
Form 1 Award No. 12191
Page 3 Docket No. 12066
91-2-90-2-243
All other Rules in the Agreement which deal with the filling of short-term
vacancies allow the Carrier to consider qualifications. The only Rule to
which we have been referred which does not require the employee to have previously demonstrated he is qualified is Rule 18, which governs the filling of
bulletined vacancies. Even that Rule requires the employee bidding a vacancy
to be familiar with the work in a general way. It provides for a trial period, which ordinarily should not consume more than three days, for the employee
to "get the run of the work." The Rule further distinguishes this trial period from a period of learning the job.
In addition to the above, we note Rule 27-1/2 states positions filled
thereunder are done so on a day-to-day basis. In light of the nature of these
vacancies, it would be an unreasonable interpretation of the Rule to require
the Carrier to call an employee without knowing whether or not he could do the
work. There is obviously no opportunity for training under such circumstances,.
Turning our attention to the issue of whether Claimant was qualified,
we rely upon the principle that it is the Organization's burden to prove the
Carrier erred or was arbitrary in its determination. There is nothing in the
record before this Board which goes toward meeting this burden of proof.
Accordingly, we must conclude the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
y J. D -Executive Secretary
Dated at Chicago, Illinois, this 6th day of November 1991.