CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
at the straight time rate of pay applied to August 2, 1957 in disposition of this claim but the offer of the Carrier in that regard was refused. Please see Mr. Downing's letter of July 30, 1958 (Carrier's Exhibit "C"). There is attached as Carrier's Exhibit "D" copy of letter written by Mr. H. V. Gilligan, General Chairman, August 4, 1958 to Mr. Downing declining the proposed settlement.
We submit that if there is any basis for the contention that the overtime rate should have applied to employe Hall on Position 3 on August 2, 1957, the circumstances in existence on that day were not in existence on the following day and the Carrier maintains that there is no basis whatever for the contention that employe Vannoy should have been called on the basis of the overtime rule to perform vacation relief work on the 5-day vacation vacancy on August 3, 1957, rather than use vacation relief employe Hall.
There is no basis for this claim. There has been no violation of the rules. The Carrier respectfully requests that the claim be denied.
All data contained herein has been presented to the employes and made a part of the question here in dispute.
OPINION OF BOARD: The Claimant held a regularly assigned relief position Sunday thru Thursday with Friday and Saturday as rest days. The Yard Clerk position No. 3 was one of the positions he relieved. On Friday, August 2, 1957, the occupant of position No. 3 started his scheduled vacation. The Claimant advised the Chief Clerk that he would be available to fill Position No. 3 on Friday and Saturday, August 2 and 3, such days being Claimants' rest days. The Carrier, however, placed employe Hall on the vacation vacancy. Hall, a furloughed employe, was junior to Claimant. Prior to filling the vacation vacancy on Position 3, Hall had filled Position No. 111 during the regular employe's vacation. Position No. 111 was worked Monday thru Friday with rest days Saturday and Sunday. Hall worked Position No. 111 on Friday, August 2, 8:00 A. M. to 5:00 P. M. and went onto Position No. 3 at 10:00 P. M. the same day. He was paid pro rata rates.
The claim is premised on the theory that the work performed on Position 3 on August 2 and 3 was overtime work and under the provisions of Memo No. 9 the Claimant, being senior, should have been called. It is admitted that using Hall on a second shift within a 24 hour period the work would necessarily be at the overtime rate, and being such the Claimant should have been used. If the work would, under the rules, be performed at the overtime rate on August 3 by either Hall or the Claimant, then the Claimant being senior, should have been called.
August 3 and 4 were the rest days of Position No. 111. It is the contention of the Carrier that when furloughed employe Hall finished the last work day (August 2) of the vacation vacancy that he had been filling, his status reverted to that of a furloughed employe and when he moved to Position No. 3 to cover the vacation vacancy he was not entitled to overtime by reason of the exception in 32(c). The Organization contends that August 3 and 4 were the rest days of Position llland Hall did not revert to a furlough status until the expiration of the work week. [Rule 27(h)]. This rule provides that if a furloughed employe takes the 11039--14 919
assignment of a regular employe they will have as their days off the regular days of that assignment. This rule applies here, and August 3 was one of employe Hall's rest days. Thus when he worked Position 3 on Saturday, August 3, Rule 33(c) became applicable.
It is admitted that if employe Hall had been available to perform the vacation relief work on Position 3 at straight time rates the Claimant Varney would not have a claim; but having concluded that the punitive rate would apply to either Hall or Claimant on August 2 and 3, then Claimant, being senior, should have been used. The claim is, therefore, valid at the pro rata rates for August 2 and 3, 1957.
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