BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: (1) Is a position necessary to continuous operation of the railroad "blanked" when the occupant thereof voluntarily absents himself from his assignment for personal reasons and the duties thereof are performed by another employe?
(2) Has the carrier complied with the meaning and intent of the applicable rules when the occupant of a position necessary to the continuous operation of the railroad is absent voluntarily and is filled by an employe on the same shift occupying a six-day position at a higher rate and is paid such higher rate?
CARRIER'S STATEMENT OF FACTS: The existing agreement between the parties, effective June 23, 1922, revised September 1, 1927, contains 64 rules. Rule 42, thereof, reads:
On March 4 and 5, 1946, first trick roundhouse clerk George Kerr, on a position necessary to the continuous operation of the railroad, requested and
Clerk, C. G. Torner for eight (8) hours pay at time and one half rate March 4 and 5, 1946, and that dispute is properly before your Board in Ex-parte submission filed by the organization pursuant to its notice May 24, 1947.
POSITION OF EMPLOYES; It is indeed unfortunate that management has seen fit to indulge in practices of this kind, the questions it has propounded not being properly representative of any dispute pending between the organization and the carrier.
The questions put before your Board by management are designed solely to confuse the issues involved in the claim of Roundhouse Clerk C. G. Torner now before your Honorable Board in a dispute brought by our Organization, and being purely hypothetical, we hold that such questions cannot be dealt with by your Honorable Board without doing violence to the Agreement.
The carrier can have no purpose in coming before this Board as it has done except wishful thinking on its part that your Board may deal with such hypothetical questions and thus destroy the effectiveness of the agreement and the award in the Torner case.
Should your Board attempt to deal with the questions raised by management, the answer to Question 1 must obviously be No, but that answer must be qualified to make it crystal clear that positions necessary to continuous operation will be considered the same as having been blanked in the application of agreement rules where the work is performed by employes not covered by the agreement or by employes covered by the agreement not properly entitled to perform such work.
Carrier's second question is more in point for it will be observed it' there deals with employes in two different classes of service, those occupying positions necessary to the continuous operation of the railroad assigned seven days each week, and those occupying positions not necessary to continuous operation assigned six days each week with Sunday automatically the rest day.
In principle your Board in Awards 336 and 2282 held that employes occupying positions necessary to continuous operation and those occupying positions not necessary to continuous operation were separate and distinct, and that neither could do the work of the other to the detriment of the other, and the carrier is here seeking to have your Board undo that principle.
If the Board deals with the matter, the answer to the carrier's second question must obviously be that the carrier has not complied with the meaning and the intent of the agreement in any instances where it uses employes assigned to six days service to the detriment of those assigned to seven days service or vice versa.
As stated in our Statement of Facts, the two questions raised by carrier are not representative of any dispute pending or unadjusted between the parties but are purely hypothetical questions and there being no dispute before the Board as contemplated by Section 3 (i) of the Railway Labor Act, as amended, we respectfully request that carrier's submission be dismissed.
OPINION OF BOARD: The two questions here presented arise out of the same state of facts as are set forth in Award 3770 and will not be here repeated.
Award 3770 fully answers question two in the negative. As to question one, it is of course necessary that the position be filled during all vacancies. See Awards 594, 750, 1635, 2536, 2783 and 3645. As to the manner of filling we have answered that in Award 3770.
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: