STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes that the Carrier violated the rules of the current agreement,
EMPLOYES' STATEMENT OF FACTS: On or about August 10, 1956 Mr. J. H. Moynihan learned that Mr. D. A. Moynihan was going to start his vacation on August 13, 1956. Mr. J. H. Moynihan immediately addressed a message to the supervisory agent, Mr. M. W. Hoyle, requesting that he be allowed to perform this work as provided in accordance with the provisions of the current agreement. The agent informed Mr. J. H. Moynihan that there would be no vacancy as the work would be taken care of by older employes during the time that Mr. D. A. Moynihan was off on vacation. Instead of the work being performed this way, the supervisory agent, Mr. M. W. Hoyle, an official entirely outside of the agreement, performed the work of this position.
POSITION OF EMPLOYES: There is in existence an agreement between the Carrier and the Organization containing the following rules:
1. Rule 68-Vacations-is self-executing. The Company did not violate that Rule when it chose not to employ a vacation relief worker or allow Reliefman J. H. Moynihan to double over during the period August 13 to August 31, 1956, when Inspector D. A. Moynihan was on vacation.
2. Reliefman J. H. Moynihan was regularly employed on his relief assignment during the period August 13 to August 31, 1956. The salaries of the positions being the same, he suffered no loss of pay by not being taken off of his relief assignment and assigned to Inspector D. A. Moynihan's position during that period. There was no vacancy in D. A. Moynihan's position while he was on vacation. There has been no allegation of burden to any one by reason of not filling the vacationing employe's position, and no such allegation could be supported. The Vacation Rule states that the Company shall not be required to provide a relief worker under the circumstances.
All relevant argumentative facts and data herein have heretofore been made known to the Brotherhood.
OPINION OF BOARD: Inspector D. A. Moynihan went on a vacation starting August 13, 1956. On August 10, 1956 Mr. J .H. Moynihan requested that he be allowed to perform Mr. D. A. Moynihan's work while he (Mr. D. A. Moynihan) was on vacation. The Agent informed Mr. J. H. Moynihan that there would be no vacancy as the work would be taken care of by older employer (luring the time that Mr. D. A. Moynihan was on vacation. Instead of the work being performed in this way it was performed by Agent Hoyle, who was not covered by the Clerk's Agreement. Claimant relies on Rule 68 (e). While it is true that Carrier "shall not be required to provide such relief workers", the Rule does not permit them to have the work done by an outsider.
Carrier next contends that the Claimant suffered no monetary loss and that the work done by Mr. Hoyle was negligible. This claim is primarily to enforce the scope of the Agreement and not for work performed. Employes who have lost work should be made whole, but where Agreement is breached claim is primarily to enforce the scope of the Agreement and not for work performed.
Nor is the amount of work performed material to the decision in this case. As was said in Award 1611 "to condone a seemingly slight violation would tend to undermine the basic structure of seniority rights".
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: 9813-7 720
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 problem dealt with in Award 9813 was subject solely to Rule 68, as amended, which provides in clear and positive terms that absences on vacation will not constitute vacancies in positions under this Agreement. It provides, also, the specific conditions under which an effort is to be made to observe the principle of seniority. In addition, specific penalty provisions are expressly included in Rule 68, as amended. Inclusion of such conditions must be taken as exclusion of all others.
Accordingly, there was no vacancy here and Claimant possessed no right under the pertinent provisions of the Agreement to exercise his seniority. Thus, the basic structure of seniority rights was not involved in this case.
In light of the explicit provisions of Rule 68, Award 9813 is in error and we dissent.
It is understandable why the Dissenters desire to confine the instant dispute to Rule 68 and thereby evade the force and effect of other rules of the Agreement.
Rule 68 is a general rule relating to vacations and provides that the Company will provide vacation relief workers, except under certain conditions not here pertinent. Nowhere in Rule 68 does it provide that the work of a vacationing employe may be performed by an employe or subordinate official outside the scope of the Clerks' Agreement, as was the case here. 9813-8 721
The position in dispute was a 7-day position, relief being furnished on the rest days of the regular assignment. Rule 23Vz(d) is a special rule governing the filling of seven (7) day positions. The Rule provides, in part:
There are no exceptions to the above quoted provision. Consequently, carrier's failure to fill the position for the full eight hours each day the regular occupant was on vacation, violated this Rule. Further, the seniority provisions of the agreement were violated by Carrier's refusal to allow claimant to exercise his seniority thereto and the Scope Rule was violated by allowing the Agent to perform the work. See Third Division Award 5657.
In Panel Argument, Carrier Member referred to Award 6311, Referee Elkouri, which is here controlling, even though Rule 68 could be interpreted in the manner contended by the Dissenters. In that Award, the Board said:
Rule 23'/2 is a special rule requiring that 7-day positions be filled 7-days per week and would, therefore, prevail over Rule 68. However, there is nothing in Rule 68 that allows carrier to blank positions during vacation periods by permitting a non-scheduled employe or "outsider" to perform the work of the vacationing employe.
The Dissenters assertion that "specific penalty provisions are expressly included in Rule 68", which would exclude others, is unsound and untenable in view of the involved circumstances. Rule 68 has no bearing on the proper application of the Scope, seniority provisions and Rule 23V2 of the Agreement. Therefore, the award of damages here was proper and in accord with a long line of awards on this Division. See "Labor Members' Answer to Carrier Members' Reply to Labor Member's Answer to Carrier Members' Dissent to Award No. 9546, Docket No. CL-9218.
Award 9813 properly disposed of the issues before the Board by sustaining the Employes' claim.