NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employes, Local 351, on the property of Chicago & North Western Railway Company, that Thomas Levy, waiter, regularly assigned in service on Trains 101-102 be paid difference between the amount he was paid for service in such assignment during the month of December 1947 and the amount he should have been paid for such service in accordance with existing agreement and that he shall be compensated for additional service rendered during lay-over period at Home Terminal, Chicago, to the extent of 16 hours during the month of December 1947.
EMPLOYEES' STATEMENT OF FACTS: Claimant was assigned as Fifth Waiter in Coffee Shop, Trains 101-102 on November 21, 1947 and transferred to such assignment from his previous regular assignment. Carrier continued this assignment until December 27, 1947. Carrier stated, in correspondence between it and claimant's representative that it decided to make the position to which claimant was assigned a permanent position on December 15, 1947. It further stated that it posted bids to cover this assignment. A senior waiter bid for the position and claimant was notified of this fact upon arrival of Train 102 on December 27, 1947.
On December 28, 1947 claimant was assigned on Trains 211-212 and on December 29, 1947 he was assigned to Second Section-Trains 400-401. It further appears that claimant's entire compensation for the month of December 1947 was 27/31s of his full monthly wage.
POSITION OF EMPLOYES: The Organization contends that claimant is entitled to a full month's compensation for December 1947. Rules 12 (a) and 3(a) of the current agreement make it very clear that claimant should have been compensated for a full month for his assignment on Trains 101-102, Rule 12(a) provided as follows:
The clear intent of Rule 12 (a) is to guarantee employes such as Claimant that when they take out runs other than their regular assignment they will
The carrier did not hear anything further from General Chairman Seltzer or any representative of the Joint Council Dining Car Employes, Local 351, in regard to the claim subsequent to the Director of Personnel's letter, and the carrier, therefore, had every reason to. consider that the decision in that letter had been accepted by the organization. In fact the carrier had no intimation to the contrary until over one year and six months later, i.e., upon receipt of a copy of Secretary-Treasurer Richard W. Smith's letter of October 13, 1949, to the Acting Secretary of the Third Division, National Railroad Adjustment Board, serving notice of the organization's intention to file, within thirty days, an ex parts submission on the claim outlined in that letter.
Further, Thomas Levy is no longer in the service of the carrier, having been dismissed for cause effective May 4, 1949.
POSITION OF CARRIER: The fifth waiter position on trains 101-102 was only a temporary position during the period Levy was working on that position during the month of December 1947. He was to all intents and purposes working as an extra man and did not hold a regular assignment or an assigned run under the meaning of those terms as referred to in rules 3 and 12, quoted above, and the provisions of such rules would not be applicable in his case.
It is also the position of the carrier that any loss of compensation suffered by Levy for the month of December 1947 was due solely to his failure to exercise displacing rights as soon as he was eligible to do so.
It is the further position of the carrier that Levy was properly compensated for his services during the month of December 1947 under provisions of schedule rules applicable, that therefore the claim presented in his favor is not justified and that such claim must necessarily be denied.
OPINION OF BOARD: The facts are not in dispute in the claim' so they will not be repeated in this opinion. The only question presented by the facts is whether or not the claimant was working this position as an extra employe or as a regular occupant of a regularly assigned position during the month of December 1947.
The claimant was assigned to this temporary position on November 21, 1947, the position not having been bulletined. On December 15th, the Carrier decided that the position should be a permanent one and bulletined it. It was bid in by an employe senior to the claimant and he started to work the position on December 31, 1947.
From a careful reading of the facts presented in the claim and the reading. of the rules in the applicable Agreement, it would seem to this Board that under Rule 24 (a), which reads as follows: 5000-5 1092
that this being a new position which was not known by them to be for thirty days or more, the position was not bulletined by the Carrier until it was ascertained by the Carrier to be a permanent position, that is, December 15, 1947. The rules are silent as to the filling of temporary positions. However, Rule 24 (a) permits a position to be filled temporarily by an extra employe before it is assigned and while it is being bulletined. This being the case, a temporary position must be filled from the extra list and the claimant must have been an extra employe. Extra employes are compensated under the terms of Rule 14 which reads as follows:
The claimant, being an extra employe, he is not entitled to the benefits of the rules cited by the Organization. The claim must be denied.
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