Award No. 7019
Docket No. CL-7251
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN PACIFIC COMPANY (Pacific Lines)
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(a) Carrier violated the Rules of the Clerks' Agreement at
Los Angeles California, when it failed and refused to allow Outdesk Clerk Harvey L. Moles to displace junior employe K. E. Brown
from Assistant Service Clerk Position No. 154; and
(b) Harvey L. Moles shall now be paid a day's pay, in addition
to other earnings, each date September 30, October 1, 2, 3 6,
7, 8, 9, 1953, at the pro rata rate of Position No. 164, and a day's
pay each date October 4 and 5, 1953, rest days of Position No. 154,
at time and one-half rate instead of straight time allowed on Position
No. 140.
EMPLOYES' STATEMENT OF FACTS: 1.
An Agreement between
the Southern Pacific Company (Pacific Lines) (hereinafter referred to as
the Carrier) and its employes represented by the Brotherhood of Railway and
Steamship Clerks, Freight Handlers, Express and Station Employes, effective
October 1, 1940, reprinted January 1, 1953, including revisions, (hereinafter referred to as the Agreement) is on file with your honorabe Board
and by reference thereto is hereby made a part of this dispute.
2. Rule 34 of the Agreement reads:
"Rule 34-Short Vacancies
(a) New positions and/or vacancies of thirty (30) calendar
days or less duration, may be filled without being advertised, at
the option of the employing officer. New positions and/or vacancies
of doubtful duration, need not be advertised until the expiration
of thirty (30) calendar days, in connection with which, so far as
practicable, the approximate duration of the work will be given.
Note: Subject to (b) and (c) of this rule.
(b) New positions or vacancies of thirty (30) calendar days
or leas duration, shall be filled, whenever possible, by the senior
qualified unassigned employe wo is available and who has not per-
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Sections (a) and (b) of Article 12 on Vacation Agreement signed at
Chicago, Illinois, on December 17, 1941 (which is made a part of the current
agreement by Rule 65 thereof) read as follows:
"12. (a) Except as otherwise provided in this agreement
a carrier shall not be required to assume greater expense because
of granting a vacation than would be incurred if an employe were
not granted a vaeation and was paid in lieu therefor under the provision hereof. However, if a relief worker necessarily is put to substantial extra expense over and above that which the regular
employe on vacation would incur if he had remained on the job, the
relief worker shall be compensated in accordance with existing
regular relief miss.
"(b) As employes exercising their vacation privileges will
be compensated under this agreement during their absence on vacation, retaining their other rights as if they had remained at work,
such absences from duty will not constitute `vacancies' in their
positions under any agreement. When the position of a vacationing
employe is to be filled and regular relief employe is not utilized,
effort will be made to observe the principle of seniority."
It will be noted that Article 12(b) of the Vacation Agreement defines a
vacation absence as not a vacancy under any agreement, and that, therefore,
the application of Rule 34(c), Note 2 of the current agreement is limited
thereby to the extent that said rule is not applicable to vacation absences.
Since Position No. 154 was filled in accordance with Article 12(b) of the
Vacation Agreement, Rule 34(c), Note 2 obviously does not support the
claim in this docket.
Even if there were a valid basis, the claim presented would not be a
proper one because in that event the claimant would be entitled to payment
only at straight-time rate of pay under Article 12(a) of the Vacation Agreement, which provides that "carrier shall not be required to assume greater
expense because of granting a vacation than would be incurred if an employe
were not granted a vacation and was paid in lieu therefor . . . .
CONCLUSION
Carrier asserts it has conclusively established that the claim in this
docket is entirely lacking in either merit or agreement support and, therefore,
requests that said claim be denied.
All data herein submitted have been presented to the duly authorized
representative of the employes and are made a part of the particular question
in dispute.
(Exhibits not reproduced.)
OPINION OF BOARD:
Under the provisions of Rule 34 (c) of the
Agreement between the parties, Claimant Harvey L. Moles, Outdesk Position
No. 140, was entitled to dispace Junior Employe Brown from Assistant
Service Clerk Position 154, during the period September 30 through October
9, 1953.
Claimant Moles, therefore, should be reimbursed for lose in earnings
during the period September 30 through October 9, 1953.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That both parties to this dispute waived oral hearing thereon;
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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
That Claimant Moles shall be additionally reimbursed for loss in earnings
in accordance with the Opinion.
AWARD
Claim sustained in accordance with Opinion and Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Secretary
Dated at Chicago, Illinois, this 24th day of June, 1955.