NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM> Claim of the System Committee of the Brotherhood of Railway Clerks that P. J. Calcaterra, Stockton, be compensated for wage loss sustained account of action of Carrier in holding him on position of Check Clerk, Wharf Warehouse, Stockton (rate $5.96 per day) longer than necessary to arrange transfer to position of Assistant Cashier, Stockton (rate $7.00 per day).
EMPLOYES' STATEMENT OF FACTS: Prior to October 31, 1942, P. J. Calcaterra was incumbent of position of Check Clerk (rate $5.96 per day) at Stockton Wharf Warehouse.
1942, Calcaterra was assigned to position of Assistant Cashier (rate $7.00 per day) at Stockton Freight Station. He was transferred to position of Assistant Cashier on November 12, 1942. Calcaterra was paid at the rate of $5.96 per day until November 11, 1942.
POSITION OF EMPLOYES: The following rules are cited from the Agreement effective October 1, 1930:
"Rule 10. Employes assigned temporarily to higher rated positions shall receive the higher rate. Employes assigned temporarily to lower rated positions shall not have their rates reduced.
"A `temporary assignment' contemplates the fulfilment of the duties and responsibilities of the position, whether the regular occupant is absent or present; merely assisting a higher rated employe during a temporary increase in the volume of the work does not constitute a temporary assignment."
tion applied for. Assignment shall be made within ten days from the date of the original notice and the name of the successful applicant shall be posted promptly.
The wording of the claim indicates that the employes are of the opinion that Calcaterra should have been transferred on October 31st because that is the date which assignment circular was issued. There is nothing in the schedule which requires the immediate transfer to a position bid in. In the actual handling of situations of this kind this is not practicable. The designated official for issuing circulars involving the assignment of clerical employes is the Division Superintendent at Sacramento and it is necessary for the circulars to be posted in all stations at which clerks are employed between San Francisco, California and Reno, Nevada, a distance of about 350 miles. The circular appointing Calcaterra to the position of Assistant Cashier was issued at Sacramento on Saturday, October 31, 1942. Correspondence is not handled by the Agent's office on Sunday and, of course, this circular was not available at that point until Monday, November 2, 1942.
As indicated by the above quoted letter from the Agent immediate steps were taken to provide relief for Calcaterra. In view of the manpower situation Carrier feels that the fact that he was transferred to the position and performed work thereon commencing November 11, 1942 is evidence that he was not held on the position occupied longer than necessary to arrange transfer to position bid in.
OPINION OF BOARD: ,It appears from the record that the Trucker, F. J. Ennis, to whom the Carrier, on November 11, 1942, assigned the position of Check lerk, Wharf Warehouse, Stockton, California, in order that P. J. Calcaterra might take the position of Assistant Cashier to which he had been assigned on October 31, was "an experienced railroad clerk qualified to perform the duties of Check Clerk at the Wharf Warehouse." Ennis obtained his employment as a Trucker on November 2, and the Carrier's sole excuse for not promptly assigning him to the Check Clerk position is that Carrier did not discover that he was qualified for it until November 10. It will be observed that Carrier does not state that it could not have discovered Ennis' qualifications prior to November 10, although it does point out that "Applicants for positions of trucker are not required to immediately file written applications for employment" and that prior to November 10, "it was the understanding of all concerned that he was an inexperienced railroad man."
None of the previous awards construes a rule containing a provision identical with the second paragraph of Rule 31, reading:
Award No. 2174 (cited by both parties) in construing rules relating to the bulletining of new positions and vacancies, but containing no provision limiting the period which the assigned employe might be withheld from enjoying the emoluments thereof, held that an assignment to a position "does not carry with it the right to immediate transfer to it. However, this does not leave the time of transfer to the caprice of the carrier. The ransfer must be made within a reasonable time. What is a reasonable time must be determined from the facts and circumstances of the particular case" and that since there was nothing in the record to indicate that the Carrier had arbitrarily or capriciously withheld the transfer the assigned employe was not entitled to recover.
The Petitioner asserts that the purpose of the second paragraph of Rule 31 was to meet arguments of the Carrier similar to those later upheld in Award 2174. We concur in this view; and it is obvious that if the rule is to have the intended effect it should be strictly construed against the Carrier. Moreover, it is proper from the standpoint of justice that the burden of showing that the transfer was not withheld longer ban necessary should be upon the Carrier since it alone has the power to facilitate the transfer.
It would seem apparent that the Carrier could have filled the position of .Check Clerk by November 3rd, the day following Ennis' employment. At least it was not shown that it was impossible for it to have done so; and applying the principles above enunciated we find that Calcaterra should recover the difference between the wages paid him and what he would have earned as Assistant Cashier during the period, November 3 to November 11, 1942, inclusive.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and