Award No. 5895
Docket No. CL-5943
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Paul G. Jasper, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE DENVER AND RIO GRANDE WESTERN RAILROAD
COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The rights of Group 2 employes were violated under the provisions
of Rule 3, paragraphs (a) and (e), and the intent and purpose of Rule
39 (a) was disregarded when the employe regularly assigned to Group 1
position of Sectional Storekeeper, G. L. Truscott, was required to suspend
work on his regular position and was used at various times on certain dates
during his tour of duty to perform Group 2 work and duties of counterman
at Helper, Utah storehouse, while the regularly assigned Group 2 employe,
Storehelper (cunterman) lbert Sacco, was used to perform other Group 2
work outside the storehouse within the hours of his assignment.
(2) Storehelper (counterman) C. T. Haycock regularly assigned 4:01
P. M. to 12:01 A. M. at Helper, Utah storehouse, shall be paid at time and
one-half rate for six (6) hours and twenty-five (25) minutes August 4,
1949 ; two (2) hours and forty (40) minutes August 6 1949; two (2) hours
and thirty-five (35) minutes August 15, 1949; two
(2)
hours and five (5)
minutes August 18, 1949; two (2) hours and thirty-five (35) minutes September 6, 1949; three (3) hours and forty-five (45) minutes September 13,
1949; a minimum of two (2) hours September 14 1949 and two (2) hours
and thirty (30) minutes September 16, 1949, under Rule 37, account not
called and used to perform Group 2 work when Group 1 Sectional Storekeeper G. L. Truscott was used on the dates cited to relieve Storehel er
(counterman) Albert Sacco, regularly assigned 8:01 A. M. to 4:01 P.
M.,
so that Sacco could be used o perform other Group 2 work outside the storehouse within the hours of his assignment.
EMPLOYES' STATEMENT OF FACTS:
Prior to July 31, 1949 the
Store Department force at Helper, Utah was comprised of one Group 1
position of Sectional Storekeeper, assigned hours 7:30 A. M. to 4:00 P M.
with thirty minute lunch period three Group 2 positions of Storehelper
(counterman), assigned hours 8:01 A. M. to 4:01 P. M., 4:01 P. M. to 12:01
A. M. and 12:01 A. M. to 8:01 A. M.; one Group 2 position of Utility Storehelper, assigned hours 7:30 A. M. to 4:00 P. M. with thirty minute lunch
period. The duties of the Group 1 position of Sectional Storekeeper consisted of checking and keeping record of material in stock, making requisi-
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(1) That the carrier violated, and continues to violate, the Clerks' Agreement when it blanked the only position of trucker (Group 3) at Colorado Springs, Colorado,
and assigned the duties of that position to employes in
Group 1, and
(2) That the occupant of the position of trucker
at Colorado Springs, Mr. Dale R. Liljerstrom, be compensated the difference between what he was paid and
eight hours for each working day he was liad off at the
expiration of four hours, or prevented from performing
any service subsequent to January 1, 1947.
OPINION OF BOARD:
Claimant, Dale R. Liljerstrom, was assigned
as a trucker at Colorado Springs, Colorado, with Group 2 seniority date of July 3, 1945. On January 1, 1947, the Carrier
instituted the practice of laying Claimant off at the end of four
hours' service daily and assigning the trucking of freight remaining to Clerks regularly assigned to Group 1 positions. The Organization contends that this practice is violative of the Agreement.
The rules applicable to the situation are:
'(a) Seniority rights of employes to vacancies or
new positions will be governed by these rules. Seniority
is restricted to the three groups designated in Rule 1 of
this Agreement as follows:
Group 1 shall constitute one seniority class
Groups 2 and 3 combined shall constitute one seniority class
(b) Seniority in Group 1 begins at the time an employe is first assigned to a position in accordance with Rule
10, in the seniority district where assigned. Seniority in
Groups 2 and 3 begins at the time pay starts, in the seniority district where initial service is performed.
(e) Employes advanced from one seniority group to
another in the same seniority district will retain and continue to accumulate seniority on the roster from which
promoted. Employes who have been promoted from seniority Groups 2 and :3 to seniority Group 1 must first exhaust their seniority on Group 1 positions, for which they
may be qualified, in event they are disturbed from their
regularly assigned position. Having thus exhausted their
Group 1 seniority, they may, within five (5) calendar days,
resume date and exercise seniority in displacing employes
of seniority Groups 2 and 3. In order to retain their
seniority date in Group 1, employes who have reverted to
seniority Groups 2 and 3 must protect Group 1 vacancies
or new positions, for which they may be qualified, immediately when available and bid for and accept such vacancies or new positions, except as provided in Paragraph (f).'
Art. III, Rule 3 (a), (b), (e), current Agreement.
Similar disputes have been before this Division and a clear
interpretation of the meaning of the foregoing rules does not appear to have resulted. That difficulties lie in the way of harmonizing the various rules, and various clauses within some of the rules
themselves, is apparent on their fact.
It is clear- to us that the only seniority district here involved
is the 'Colorado Springs station and
yard forces'. See Art. III,
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Rule 5, current Agreement. This assertion is also borne out by the
language used in Art. III, Rule 3 (e), wherein it is stated that
'Employes advanced from one seniority group to another in the
same seniority district will', etc.
It is evident from a careful reading of Rule 3 (e), hereinbefore quoted, that Group 1 and Groups 2 and 3 employes were
not to be used whimsically and interchangeably in performing the
work of the other group or groups. It is true that seniority
attaches to the individual emloye and that positions include the
performance of the work of the position. But when seniority
entitles an employe to occupy a position, he is entitled by the very
nature of things to perform the work of that position. A trucker
is a Group 3 employe, and we think the Agreement contemplates
that if there is available work for the establishment of a trucker
position, an employe holding seniority in Groups 2 and 3 seniority
class is entitled to the position and to perform the work thereof.
On the other hand, if there is insufficient work for the establishment of a trucker position or if there is additional extra work not
sufficient to require a second trucker position, we think the Agreement permits Group 1 employes to perform it.
This, of course, raises the question: When does work exist
which requires the establishment of a position? This question was
answered in Award 1211 wherein it was stated that it applied to
a position worked 'with substantial regularity'. But the answer
proved just as indefinite and ambiguous as the situation previously
existing until this Board in Award 2161, more or less arbitrarily,
defined 'substantial regularity' as `three days' work or more per
week'. Until the parties produce a better definition by agreement,
we shall continue to apply that standard.
The record shows that trucking work in excess of three days
per week existed at Colorado Springs. It in fact shows that more
than six days trucking work existed there. The position of trucker
occupied by Liljerstrom under Group 3 should, therefore, have been
retained.
If this was not so, no effect would be given to that part of
Rule 3 (e) providing: 'Employes who have been promoted from
seniority Groups 2 and 3 to seniority Group 1 must first exhaust
their seniority on Group 1 positions, for which they may be qualified, in event they are disturbed from their regularly assigned
position. Having thus exhausted their Group 1 seniority, they
may, within five (5) calendar days, resume date and exercise
seniority in displacing employes of seniority Groups 2 and 3.'
Clearly, a Group 3 employe can be deprived of his position where
the work of the position exists only in the manner stated in the
foregoing rule; that is, by a proper exercise of seniority rights.
If Group 1 employes could be assigned indiscriminately to perform
the work of the Group 3 position as the Carrier saw fit, much of
the rule would be meaningless, a situation to be avoided if possible in contract interpretation.
The claim of the Organization is sustained under the facts
here shown, subject to the provisions of Rule 25, current Agreement, effective June 1, 1941.
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
resptively carrier and employes within the
meaning of the Railway
Labor Act, as approved June 21, 1945:
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That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was violated.
AWARD
Claim (1) sustained. Claim (2) sustained from June 1, 1947.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: A. 1. Tummon
Acting Secretary
Dated at Chicago, Illinois, this 28th day of April, 1949."
Organization heretofore has not objected to the use of Group One (11)
seniority employes to perform irregular Group Two (2)-Three (3) seniority
employes' work. In support of this statement attention of your Board is:
directed to Award 3371. Award 3371 involved a dispute which arose in the
Store Department at Helper, Utah. Organization in Award 3371 made a
claim that Carrier should pay sectional storekeeper L. W. Johnson (group one
(1) seniority) because not permitted to unload wheels which is group two
(2)-three (3) seniority employes' work.
Award 3371 involved the following claim:
"That Store Helper W. H. Rodeback and Sectional Storekeeper
L. W. Johnson be paid two and one-half hours' pay at time and onehalf of their respective rates account Mechanical Department employes, not having seniority rights under the scope of the Clerks'
Agreement, being used to unload wheels 11:00 A. M. to 2:00 P. M.,
exclusive of meal period 12 Noon to 12:30 P. M., Saturday, May 6,
1944. This claim is based on the provisions of Rules 1, 3, 36, 37
and 50."
If Organization does not believe its agreement with Carrier permits Carrier to use Group One (1) seniority employes to perform irregular Group 2
(2)-Thee (3) seniority employes' work why then did it make claim for a
sectional storekeeper (group one (1) seniority) because he was not permitted
to perform group two (2)-three (3) seniority employes' work in Award 3371.
There is no merit to this claim and it must be denied on the basis of
Awards 4385 and 3371.
All data in support of Carrier's position have been submitted to Organization and made a part of this particular question in dispute. The right to,
answer any data not previously submitted to Carrier by Organization is,
reserved by Carrier.
OPINION OF BOARD:
Claimant Haycock is a storehelper (counterman) Nvith seniority in Groups two and three. He is assigned to the Store
Department at Helper, Utah. His regular assigned working hours are 4:00
P. M. to 12:00 Midnight six days a week.
Storehelper (counterman) is an around-the-clock position.
On July 30, 1949 due to decrease work D. R. Wharff, a utility storehelper's position was abolished. As a utility storehelper he assisted in loading and unloading cars of Store Department material.
G. L. Truscott on August 4, 1949 and the dates hereinafter set out,
was a sectional storekeeper with a Group 1 seniority. Under the rules he
also held seniority in Groups 2 and 3.On August 4, 1949 Albert Sacco, a
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store helper (counterman) was required to leave his work inside the storehouse to help load a car with Store Department material.
Both the counterman's duties and the loading and unloading of cars
were Groups 2 and 3 seniority work.
C. T. Haycock claims he should have been called to perform the Groups
2 and 3 work taken over by Truscott on August 4, 5, 15, and 18 of 1949
and September 6, 14, 17 of 1949.
The Claimant contends that the Carrier violated Seniority Rule 3 (a)
and (e) which are as follows:
"(a) Seniority rights of employes to vacancies or new positions will be governed by these rules. Seniority is restricted to the
three groups designated in Rule 1 of this Agreement as follows:
Group 1 shall constitute one seniority class
Groups 2 and 3 combined shall constitute one seniority class.
(e) Employes advanced from one seniority group to another
in the same seniority district will retain and continue to accumulate seniority on the roster from which promoted. Employes who
have been promoted from seniority Groups 2 and 3 to seniority
Group 1 must first exhaust their seniority on Group 1 positions,
for which they may be qualified, in event they are disturbed from
their regularly assigned position. Having thus exhausted their
Group 1 seniority, they may, within five (5) calendar days, resume
date and exercise seniority in displacing employes of seniority
Groups 2 and 3. In order to retain their seniority date in Group
1, employes who have reverted to seniority Groups 2 and 3 must
protect Group 1 vacancies or new positions for which they may be
qualified, immediately when available and bid for and accept such
vacancies or new positions, except as provided in Paragraph (f)."
:and also violated Rule 39 (a) which is as follows:
"Employes will not be required to suspend work during regular hours to absorb overtime."
A system roster was maintained for all Division storehouses. See Rule
.5, item 35.
The facts readily reveal that Sacco could not physically perform the
duties required of him in assisting the loading and unloading of cars outside the storehouse and also perform the duties of storehelper (counterman) inside the storehouse. The work belonging to Groups 2 and 3 was
entitled to be done by a man from Groups 2 and 3, if available. As has
been said, a Group 1 man cannot be used interchangeably to perform the
work of the other Group, nor could a Groups 2 and 3 man be used to perform the work of Group 1.
Under the Agreement Group 1 is a separate seniority Group and Groups
2 and 3 are a separate seniority group.
When Sacco was moved from the counterman's duties to perform work
of loading and unloading cars outside the storehouse, Claimant Haycock
was available to do the work of Groups 2 and 3. If a Groups 2 and 3 man
had not been available then a Group 1 man could have been used. See
Award 3371.
It was a violation of Rule 39 (a) to use a Group 1 man to do a Groups
2 and 3 man's work. Truscott was used to absorb overtime of another
position by being required to suspend his work.
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We cannot agree with the contention of the Carrier that Award 4385
is controlling. The facts are distinguishable in the last cited Award. In
Award 4385 all jobs were Group 1 positions except the trucker which was
a Group 3 position. Men in Group 1 held seniority in Groups 2 and 3.
When the Carrier was forced to reduce its man power it abolished the
trucker position leaving only Group 1 employes to do the work of the
trucker, which work was in excess of three days, and required the position
of trucer to be established. The claim of the trucker was sustained. The
absorbing overtime rule was not involved. In the claim now before this
Board the utility storehelper's position was abolished, but there were other
storehelpers working on Groups 2 and 3 work. They were therefore entitled
to perform the extra work of their Group before a Group 1 man was entitled
to it. Here the absorbing overtime rule is involved. Truscott was required
to suspend regular work to perform work in another position which work
would have required overtime to be paid. See Award 5331.
The Claimant did not perform the work and therefore is entitled to be
paid only at the pro rata rate. See Award 4244. There is some question
about the exact amount of overtime azsorbed by Truscott on the dates in
the claim. This can be ascertained by the parties on the property.
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 oBard has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained for the pro rata rate.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Acting Secretary
Dated at Chicago, Illinois, this 28th
day of July, 1952.