NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
Willard E. Hotchkiss, Referee
"Complaint of F. C. Paul against ins displacement from position of highway crossing watchman at Wichita Falls, Texas, April 26, 1935. Request for restoration to him of his former regular assignment in that position. Claim for loss in compensation by him by reason of displacement from this position effective April 26, 1935:"
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The Carrier and the Employe involved in this dispute are, respectively, Carrier and Employe within tile meaning of tile Railway Labor Act, us approved June 21 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The parties to said dispute were given (tile notice of Bearing thereon. The case being deadlocked, Willard E. Hotchkiss wets called in as Referee to sit with the Division as :t nicuiber thereof.
An agreement is in effect between the parties dated January 10, 7029.'F. C. Paul was regul:oly employed as lilgliway crossing watchman at Wichita Falls, Texas, having been first hired as such in August 1926 from outside the ranks of Carrier's employes until April 26, 1935, when lie wits displaced from that position by .1. B. Spillmmi, employed its clerk, who has but one arm. 111r_ Paul has worked intermittently on this position since that time. Mr. Spillman's nanue is carried on current clerics' seniority roster with date of October 8, 1919. Rule 25 (p) of ciurent hI:rinteiance of Way Employes' wage schedule agreement reads
Employes contend that the Railway Company violated Rule 2.3, paragraph (p), which is quoted in the joint submission under the ]reading of Exceptions, In allowing J. B. Spillman, employed its clerk, to displace F. O. Pool as highway crossing watchman at Wichita Falls. The yylanagetnent contends that Mr. Spiilman had tile right to displace Mr. Paul oil account of ]its disability.
The Employes contend further that Rule 25, paragraph (p) makes no provision for ,bumping in order to create a vacancy, and that, therefore, the position could only be fillecl if a vacancy existed They agree that hall there been a vacancy and no incapacitated employe in tile Maintenance of Way Dupartment, Mr. Spilhnan or any other eutploye could have been assigned to tile position. Employes further contend that Mr. Spillman is not incapacitated in accordance with the intention of Rule 25 (p), as lie is still physically able to carry
on the work which he had previously performed, and only accepted the crossing watchman position as a temporary position, which they hold is not in conformity with the rules. They maintain that his incapacity was no greater at the time he displaced Mr. Paul than it was at the time lie was hired as a clerk on October 8, 1919.
The position of the Carrier was set forth in considerable detail by General Manager Farrington in his statement of January 14, 1938, and further elaborated before the Referee, with citation of Decision No. 1881, Docket 2389, by the U. S. Railroad Labor Board, July 8, 1923.
In brief, the Carrier's position is that Mr. Paul, not being an incapacitated employe, was not exempt from displacement by an incapacitated employee from any department, no incapacitated employe from the Maintenance of. Way Department being available. Mr. Paul, the Carrier contends, acquired no seniority rights to the position under Rule 75 (p).
The record contains extensive correspondence between the parties in reference to granting hearing and certain other angles of the case.
This is not a clear cut case from the standpoint of the letter of the agreement between the parties. Superficially, there appears to be some Inconsistency on both sides. The Employes, at an earlier date, tried to prevent Mr. Paul's assignment to the position, maintaining that it should be given to an incapacitated employe; whereas, they now ask that Mr. Paul be retained in the position. The Management, on the other hand, rejected the earlier claims of the representatives of the Employes in favor of Mr. Paul, because they said the position required an able-bodied man, and they now propose to place a man of one arm In the position.
These superficial inconsistencies are understandable 1n the light of all the circumstances, but the Referee finds no justification under the agreement for replacing Mr. Paul.