STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that the Carrier violated the rules of the Clerk's Agreement at East Buffalo Freight Office, Buffalo, New York when the Carrier failed and refused to assign Mariano Cappuzzo to fill vacancy on position of Car Record Clerk working 10:59 P. M. to 6:50 A. M., during the absence of Joseph Richard, July 7 through July 11, 1952, on vacation, preference having been given to a junior employe, no effort made to observe seniority in filling the vacation assignment, and
That the Carrier shall now compensate Mariano Cappuzzo for the difference if any, between the rate of pay of the position occupied on July 7 through 9th at straight-time rate and what he would have earned had he been assigned to the position sought and for July 10 and 11 at pro rata rate of Car Record Clerk rate of pay. (File 1027.)
EMPLOYES' STATEMENT OF FACTS: Joseph Richards, Night Car Record Clerk, was scheduled to take his vacation July 7 to 11th, 1952, both inclusive. His position was worked by extra employe Banks from July 7 to 9th, inclusive, and the assignment completed by Miss Theresa Prescott, July 10 and 11th, 1952.
Mr. Mariano Cappuzzo, seniority date August 22, 1948, regularly assigned to Relief Position No. 12 on May 12, 1952, addressed the following letter to Mr. C. F. Henry, Assistant Agent (since retired)
On Monday, July 7, Mr. Cappuzzo was aware that Mr. Banks, seniority date July 1952, was instructed to work on Car Record Clerk osition of J. Richards on vacation. He immediately advised Mr. Cook, Assistant Agent in place of Mr. Henry, that he desired the position while Joseph Richards was on vacation. On enial of his request, he addressed the following letter to Mr. Cook, dated July 7, 1952:
In the light of all of the foregoing, it is clear that the motive behind this claim is to secure to regular employes the right to fill positions of vacationing employes in the same manner as temporary vacancies are filled under Rule 7 of the Schedule Agreement. This, of course, is expressly prohibited by the provisions of Article 12(b) of the Vacation Agreement and decisions of this Board with respect to the same.
The Carrier has established the fact that the use of the extra employes on the vacationer's position did not constitute a violation of the applicable agreement. Therefore, the claim is not justified and should be denied.
The Carrier submits that all data in support of its position in this case has been discussed with or is known to the Organization or the employes.
OPINION OF BOARD: This claim concerns the question as to whether Rules 3, 5, 6, 7 and Section 12 (b) of the National Vacation Agreement were violated when claimant's request to fill a vacancy, existing due to the occupant thereof being on vacation, was denied.
The position in question is that of Car Record Clerk. The regular occupant thereof was Joseph Richards. The period involved is July 7 through July 11, 1952.
Richards' position was covered by an Extra Clerk, Ronald Banks, on July 7, 8 and 9. The said Banks was displaced by extra employe Schichtel, who worked the position during the balance of the period in question. Each of the named employes who occupied this position was junior (in seniority) to the claimant.
Claimant was regularly assigned to relief position No. 12. He likewise made written request to fill the vacancy in question This request was denied. Respondent raises no question as to the qualifications of the claimant to fill the vacancy, contending only that in using extra employes to fill the vacancy, the terms of the effective agreement and the National Vacation Agreement were followed.
It is well settled that vacation absences do not constitute "vacancies" that must be filled. In some instances, the work of such positions might, at the carrier's discretion, be left undone or portions thereof assigned to other employes. When "Vacation Relief Positions" are created, such vacancies are properly the work of the holders of the positions so created.
However, if the carrier desires to fill the position of an employe on vacation, and there is no (as here) vacation relief employe utilized, Article 12 (b) requires that "effort" be made to follow the principle of seniority.
Claimant here advised respondent of his desire to fill the "Vacation Vacancy" of Employe Richards, thus it cannot be said they lacked knowledge of his availability.
The respondent violated Rule 12 (b) of the National Vacation Agreement when it failed to observe the principle of seniority while filling the position with someone other than the claimant. 7163-12 725