STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The claimant has established .and holds seniority as a First and Second Class B&B Mechanic on the Carrier's J. O. District, but was regularly employed as a Second Class B&B Mechanic on Foreman J. L. Smith's B&B gang, because of insufficient seniority to hold s First Class B&B Mechanic's position.
Commencing on June 9, 1958, First Class B&B Mechanic W. K. Hurst, who was regularly assigned as such on Foreman A. Wallace's B&B gang on the same seniority district, was absent from duty account of illness for a period of forty-three working days.
The Carrier, instead of notifying and using the Claimant, who was the senior available eligible employe on the seniority district, to fill the aforementioned temporary vacancy, assigned the position to a junior employe.
The agreement violation was protested and the instant claim filed in behalf of the claimant as follows:
The Claimant has failed to comply with the agreement and the claim that he should be paid as though he worked as a First Class Mechanic should be denied.
OPINION OF BOARD: Exhibits as to past practice and suggesting physical impairment of Claimant are attached to Carrier's Ex Parte Submission. The exhibits show by the date thereof that they could not have been exhibited to Employes during handling of the claim on the property. The exhibits are excluded from our consideration. Circular No. 1 of this Board; .Award No. 11887.
Carrier filled such position with an employe junior to Claimant. Carrier's .defense of past practice fails of proof. Carrier's remaining defense is that Claimant had actual (unofficial) notice of the vacancy and waived his right to fill the vacancy by his failure to leave the J. L. Smith Gang on his own motion and report to the A. Wallace Gang for work. Employes rely on the obligatory language of the rule and evidence of past practice that notice and acceptance customarily was through Foremen.
There is no question as to Claimant's seniority or geographical availability, or as to his eligibility.
The rule involved is clear. It is not ambiguous. By its own terms it is obligatory on Carrier. The burden was on Carrier to either comply with the plain mandate of the rule or, in the alternative, to show an affirmative good faith effort to meet the obligations of the rule, using such reasonable procedure as might be designed by the exercise of its sound discretion to implement the rule instead of ignore it.
Carrier's defense of waiver is not well founded. Waiver pre-supposes knowledge of all material facts. Here, Claimant had actual knowledge of the vacancy; but Claimant had no knowledge either express or implied, of how Carrier desired Claimant to manifest his wish to fill the vacancy. It was within the province and duty of Carrier to prescribe and make known in a reasonable manner the fact of how it desired employes so situated as Claimant to manifest their wish. Having failed to exercise this managerial prerogative, Carrier cannot defend on the ground of waiver.
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:
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; 11959--11 308