BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Employe L. E. Phillips is regularly assigned to Second Train Clerk Position No. 443 at Bensenville yards, Chicago, Illinois. Position No. 443 is assigned to work from 3:00 P.M. to 11:00 P.M. seven days per week with rest days of Saturday and Sunday.
Employe J. A. Scully was regularly assigned to Relief Position No. 24, which position includes relieving Position No. 443 on Saturday and Sunday. (Employes' Exhibit "A".)
Employe William Ohm is regularly assigned to Yard Clerk Position No. 460.
On or about April 11, 1953, Employe Scully was removed from Position No. 24, leaving Relief Position No. 24 vacant. Position No. 24 remained vacant for a period of approximately one month. Position No. 24 was rebulletined on April 27, 1953. No applications were received for the position and a new employe, W. L. Johnston was appointed to the position. See Employes' Exhibits "B" and "C".
vacancy on his position (Employe Ohm's Position) lend any support to the claim that employe Phillips should have been used to fill Relief Assignment No. 24 (Position 443) on such days. It is the Carrier's position that the use of the various employes, all of whom had properly established seniority under the schedule rules, to fill the vacancies on employe Ohm's position and on employe Maze's position was entirely proper under the schedule rules .but we also contend that such question is not before your Honorable Board. In the instant dispute we have the question as to whether or not employe L. E. Phillips, who was assigned to Position 443 Monday through Friday, should have been used to fill Relief Assignment No. 24 (Position No. 443) on the various Saturdays and Sundays included in the claim, and that is the only question before your Honorable Board.
The claimant was assigned to Position 443 Monday through Friday. On Saturday and Sunday, Position 443 was a part of Relief Assignment 24, The latter position was assigned to employe Scully until sometime in April 1953. When it was known that he was not to return to that position it was rebulletined and assigned to employe W. L. Johnston. Please see Carrier's Exhibits "All ad "B".
It is the Carrier's position that by reason of employe Ohm being the senior qualified employe making request for the temporary vacancy on Relief Position 24 (Position 443) on Saturday, April 18 and Sunday, April 19, 1953, employe Ohm had the prior right to be used to fill that position on those two days. Therefore, Claimant Phillips has no proper claim that he should have been used to fill Relief Position No. 24 (Position 443) on those days. It is further the Carrier's position that by reason of the fact that employe Maze was the senior qualified employe requesting the temporary vacancy on Relief Position No. 24 (Position 4431 on April 25th, 26th, May 2nd and 3rd, he had the prior right to be used on such position and that Claimant Phillips has no proper claim that he should have been used to fill the position on those days. It is further the Carrier's position that when no employe made request for the temporary vacancy on May 9 and 10, 1953 it was entirely proper and in accordance with the schedule rules that the Carrier continue to use extra or unassigned employe O. E. Hasty to fill the temporarily vacant relief position No. 24 as he did on May 8, 1953.
Therefore, there is no basis for the claim which has been submitted in behalf of employe L. E. Phillips and we respectfully request that the claim be denied.
OPINION OF BOARD: At time of dispute Claimant Phillips was regularly assigned to Clerk Position No. 443 at Carrier's Yards in Bensenville, Illinois. This was a 7-day position, Claimant's assigned days being Monday through Friday, with rest days Saturday and Sunday. These rest days were part of regular 5-day Relief Position No. 24, held prior to this dispute by J. A. Scully. The relief work schedule of Position No. 24 was as follows:
The copies say "I wish this temporary vacancy." Similarly with Maze in respect to April 25 and 26. As to Maze's work on No. 443 on May 2 and 3, the photostatic copies say not that he wished to work the temporary vacancy but that he was "willing" and "agreeable" to do so.
The substance of the Employes' contentions is that (1) Relief Position No. 24, a regular 5-day position, having been worked only on certain selected days by Carrier, was not properly filled as such during the period in question, as a temporary vacancy under Rules 9 (f) and 9 (g); (2) Claimants' regular Position No. 443, being a 7-day one, had to be filled on Claimant's rest days; and (3) said rest days of No. 443 having been improperly assigned via the temporary vacancy route in respect to Relief Position No. 24, the work became overtime work, covered by Section 4 of Memorandum of Agreement No. 9 (plus note thereto), that should have been given to Claimant.
Carrier argues that (1) to agree with Employes would be in contravention of Rule 27 (g)(7); and (2) Relief Position No. 24 was properly filled under the temporary vacancy provisions of the Agreement; and (3) Ohm and Maze had the right to withdraw from said temporary vacancy (No. 24) and go back to their regular positions, thus leaving No. 24 unfilled on certain days.
For the purpose of determining the instant dispute the period involvedApril 12 through May 10, 1953-may be divided into three sub-periods: (1) April 12, the day Scully's absence from Relief Position No. 24 began, through April 26, the day before Carrier re-bulletined said Position following Scully's discharge; (2) April 27, the date of said re-bulletining, through May 4, the day before said Position was assigned to Johnston; and (3) May 5, the date of said assignment, through May 10, the day before Johnston began work on the Position. ,
During the first and third of these sub-periods Position No. 24 is to be considered a vacancy of less than 30 days, i.e., a temporary vacancy as defined by Rule 9 (g) and therefore subject to the provisions of that Rule. During the second of these periods the Position is to be considered vacant pending assignment and therefore subject to the provisions of Rule 9 (f).
So far as facts are available from the record, during the first period, Position No. 24 was scheduled for 11 days, and on seven of these was not worked. During the second period the Position was scheduled to work six days and was so worked. During the third period the Position worked on three of the four scheduled days.
The Board holds that there is nothing in the Rules governing temporary vacancies that requires the Carrier to fill such vacancy on every one of its scheduled work days. And even if the facts not disclosed in the record were that Position No. 24 was actually worked by employes other than Ohm, Maze, and Hasty on the days stated above to be ones on which the Position did not work, the Board finds nothing prohibiting this in respect to temporary vacancies. The Board rules further that, given no wish or willingness of working employes to work such temporary vacancy, the Carrier was not prohibited by any Rule from using an extra or furloughed employe such as Hasty to fill said vacancy. In short, the Board does not find that the temporary vacancy on Relief Position No. 24 was improperly filled during the entire period April 12 through May 10, 1953.
Given this decision, it follows that Claimant was not deprived of any rights under the Parties' Agreement. A denial award is in order. 8429-13 154