EMPLOYES' STATEMENT OF FACTS: An agreement by and between the parties to this dispute, and which is hereinafter referred to as the Telegrapher's Agreement, dated July 1, 1948, is in effect between the parties. A copy thereof is on file with the Third Division of the National Railroad Adjustment Board. The violations involved in this dispute took place on the St. Lawrence Division of the Carrier.
Mr. L. C. Peacock, wass regularly assigned to the second shift (Assistant Agent) position at Lacona, N. Y., with hours from 1:00 P. M. to 9:00 P. M. The Carrier suspended him from that position on March 5, 6 and 7, 1951 and required him to work the third shift (Assistant Agent) position at Adams Center, N. Y., hours 11:00 P. M. to 7:00 A. M. He was again suspended from is reguar position and required to work the second shift (Assistant Agent) position at Brewerton, N. Y., hours 3:00 P. M. to 11 :00 P. M., on on March 9 1951.
Claimant, Mr. R. E. Waterman, the regularly assigned incumbent of the Tenth Rest Day Relief Assignment, scheduled to work Tuesday, March 13, and Wednesday, March 14, 1951, from 3:00 P. M. to 11:00 P. M., at Remsen, N. Y., was suspended from his regular assignment and required on these two dates to work the agent's position at Barneveld, N. Y., from 8:00 A. M. to 5:00 P. M., with one hour out for lunch.
The Organization protested the action of the Carrier in removing claimants from their regularly assigned positions in non-emergencies, for the purpose of performing relief work on positions other than those to which they were properly entitled, and which had been acquired by seniority right. Penalty claims were made for infringement upon the rights of these employes. The claim was denied by the Carrier.
POSITION OF EMPLOYES: As set forth in the Statement of Facts, this claim is predicated on the Carrier's action in declining to pay the claimants, L. C. Peacock and R. E. Waterman, in accordance with the terms of the Telegraphers' Agreement. The Carrier has denied the proper payment to these employes because it is claimed there were no extra men available to perform the duties at Adams Center, N. Y., Brewerton N. Y. and Barneveld, N. Y., on the dates here involve, and because of heavy troop movements over that portion of the St. Lawrence Division. The Carrier contended that it had the right under such circumstances to use regularly assigned employes at will without being obligated to make any penalty payments to such employes. 8613-16 757
No facts or arguments have been herein presented that have not been made known to the Employes.
OPINION OF BOARD: Claimant Peacock was regularly assigned assistant agent at Lacona, N. Y. On March 5, 6 and 7, 1951, he was required to perform relief work on the assistant agent position at Adams Center, N. Y., instead of working his own position, because of the illness of the incumbent of the Adams Center position. On March 9, Peacock was required to relieve the assistant agent position at Brewerton, N. Y., instead of working his own position, because the Brewerton incumbent was ordered by the military to take a physical examination on that date.
Claimant Waterman was regularly assigned to the Tenth Rest Day Relief Assignment, relieving at Remsen and Maxcy, N. Y. On March 13 and 14, 1951, he was required to perform relief work on the position of agent at Barneveld, N. Y., instead of working his own position, because of the illness of the agent :at Barneveld.
Claim is made under Article 4-Overtime, Article 5-Calls, Article 9-Suspension, Article 12--Guarantee, and Article 13-Regular Employes Performing Relief Work, for 8 hours at regular rate for each day Claimants were required to work assignments other than their own, and also for compensation at time-and-one-half for hours actually worked on the days in question which were outside the hours of their regular positions.
It has been held in awards of this Division involving the same Petitioner and a different District of the same Carrier that, where there were vacancies due to illness and no qualified extra employes were available to fill them, that an emergency existed; and that such vacancies could be filled by removing regularly assigned employes from their positions and assigning them to perform relief service on the vacant positions, without violating the Agreement. Awards 2511, 3132, 3438, 3439, 3440. These awards were based upon Article 13, which provided in pertinent part:
Petitioner contends that there was no emergency here, respite the admitted illness of the incumbents, because there were two student operators available to perform the necessary relief service; it is also asserted that there were qualified operators off on their rest days who could have been called to fill the vacancies. Carrier asserts that the student operators were not yet oualified to relieve these positions; in the absence of any evidence to the contrary in the record, we must accept this judgment. Similarly, Carrier's statement that there were no regular employes on their rest days available to perform the required service is not controverted by any evidence. No name of any employe is suggested in the record as one who was off on his rest day and available to perform the required service on any of the dates in question. We think the facts and circumstances here as to the relief service performed because of illness are similar to those in the award cited above, and that those awards require the denial of the present claims to that extent. 8013-17 7 bg
There remain the somewhat different circumstances under which Claimant Peacock relieved at Brewerton on March 9, 1951. The awards which holds that illness creates an emergency under Rule 13 and similar rules are based to a large extent on the fact that illness is unpredictable, sudden and not subject to prior planning and control. On the other hand, the Board held in Award 4626, between these same parties and involving the same rules, that a vacancy caused by the incumbent's going on vacation was not an emergency under Rule 13, even though no qualified telegrapher was available to fill, the vacancy, since the necessity for the relief "was
=ot a sudden or unexpected occurrence." Award 6015 involved Itnparties and circumstances, but discussed the question of what constituted an emergency in connection with requiring a regular employe to provide relief service. The Board there said: "We are not in accord with the Carrier that an emergency existed by Hood being inducted into the military service. Events of this nature are common and an everyday occurrence, as distinguished from sickness or accident, or some unforeseen occurrence that could not be anticipated."
The record is bare of any evidence as to whether Carrier had advance notice that the assistant agent at Brewerton had to take a physical examination on March 9. However, we feel justified in assuming that the agent had advance notice of this fact, since such is the usual practice, and that Carrier also knew about it in advance. We conclude, therefore, that the vacancy at Brewerton on March 9 was not an emergency and that Claimant Peacock is entitled to be paid eight hours at the straight time rate of his regular assignment for that date in addition to the pay he has already received. To sustain the claim for an additional two hours at time and onehalf rate would be a double penalty; this part of the claim as to Brewerton is denied.
FINDINGS: The Third Division of the Adjustment Board, 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
Claim sustained in part and denied in part in accordance with Opinion and Findings.