NATIONAL RAILROAD ADJUSTMENT BOARD
Dudley E. Whiting, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(a) The Carrier violated the Agreement when on November
6, 1951 and continuing for a period of twenty-one working days it
employed four typists and two comptometer operators having no
seniority or previous employment relationship with the Carrier to
perform work previously assigned to Clerks holding positions covered by the Clerk's Agreement. No new positions were established
under the Clerk's Agreement and no vacancies existed in established positions; and
(b) That claimants J. R. Betsill, W. W. Irwin, W. D. Sexton
and J. M. Eidson, qualified typists, shall be compensated in the
amount of twenty-one days each at pro rata rates, representing a
proportionate part of the time worked by the four typists not covered by the Clerk's Agreement; and
(c) That Clerks K. I. Yarbrough, J. Allen, E. H. Manley,
N. M. Dodd, L. A. Coward, P. H. Wright, John icks, Jr., J. R.
Boyette and L. C. Eidson, qualified comptometer operators, shall
be compensated in the amount of thirty-seven hours twenty minutes
each, at pro rata rates representing a proportionate part of the
time worked by the two comptometer operators not covered by the
Clerk's Agreement.
EMPLOYES' STATEMENT OF FACTS: Claimants are regularly assigned Group 1 employes employed in and holding seniority in seniority
district comprising Office of Assistant Auditor, Atlanta, Georgia Their
seniority dates, assignments and rates of pay are as follows:
Rate
Name Position Seniority Date Per Day
J. R. Betsill Clerk Oct. 1, 1948 $14.44
W. W. Irwin Clerk-typist June 1, 1950 . 12.50
W. D. Sexton Addressograph Nov. 20, '1950 . . . . . . . . . 12.91
Operator
J. M. Eidson Clerk Feb. 2, 1949 . 14.44
[5401
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All relevant facts and arguments involved in this dispute have heretofore been made known to employe representatives.
OPINION OF BOARD:
The submission of the Carrier contains the
following statement:
"Carrier agrees that the extra positions should have been
bulletined, either within two days as provided in Rule 5 (e) or
after the extra clerks had worked the positions four or more days
a week for two consecutive weeks as provided in Rule 4(h)."
The Carrier then contends that it nevertheless had the right to use extra
clerks to fill new positions if bulletined and that claimants suffered no
monetary loss.
Under the agreement, Rule 4(g), preference for extra clerical work
must be given to available qualified furloughed employes and, Rule 4(g) (10),
when lists of furloughed employes are exhausted "extra clerks may be employed." Rule 4(h) then provides as follows:
"Nothing in this rule shall be construed to prevent the carriers
from using furloughed or extra clerks for one day or more where
on certain days the conditions of the service warrant their use;
payments to be made for actual number of days worked, provided
that, if extra clerks are used on the same position four days or
more for two consecutive weeks, a regular position shall be
established; such position to be abolished when the condition
of the work warrants . . ."
Thus under the rules, where no furloughed employes are available and
extra clerical work is required, the Carrier map employ extra clerks for
"one day or more" with the proviso that if used on the same position for
"four days or more for two consecutive weeks" a regular psition shall be
established. Since Carrier concedes that such a position, when established,
must be bulletined, the effect of failure to do so is that thereafter work
has been given to one not entitled to it under the agreement, which we have
consistently held validates a claim of pay for one covered by the agreement
with a seniority status entitling him to the work.
Thus we find that, since Carrier had a right to employ extra clerks
on the same position for two consecutive weeks of four days or more before
it was required to establish a new position requiring bulletin, the claim is
valid for all days worked by such extra clerks thereafter and to that extent
will be sustained.
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
The Carrier admits it violated the agreement.
AWARD
Claim sustained to the extent stated in the opinion.
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5(j
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Secretary
Dated at Chicago, Illinois, this 31st day of March, 1554.