THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Pere Marquette District)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-4807) that:
EMPLOYES' STATEMENT OF FACTS: On November 27, 1959, the position of Expense and Bill Clerk was advertised as a temporary vacancy account the regular incumbent was granted a ninety-day leave of absence. It was assigned to Clerk Dolinski, who held the position of Car Clerk, (Employes' Exhibit 1 and 2). Clerk Dolinski's position of Warehouse Yard Clerk, leaving his former position vacant. December 4, 1959, was the last day Clerk Lidtke worked as Warehouse Yard Clerk. From December 4, until December 21, 19'59, the position remained vacant, and no advice was afforded Claimant Kolb that the position was abolished until the Carrier posted an abolishment bulletin on December 16, 1959 (Employes' Exhibit No. 5).
Proper claim has been filed and progressed in the regular manner on the property up to and including the highest officer designated by the Carrier to consider such matters but the parties have been unable to compose their dispute. The claim as set out in the Employes' Statement of Claim is properly before your Honorable Board.
In the event the Employes would rely on Rule 58 in this case, Carrier points out this rule provides only that standard bulletin form will be used to cover reduction in force. The standard bulletin form was used. Nothing in Rule 58 provides that the standard bulletin form covering the abolishment of a position will be issued promptly upon a position being blanked, or, failing, an extra employe will be paid for the blanked position on and after the date the abolishment bulletin would have been effective had it been so posted.
Carrier submits Rule 58 of the agreement as well as the other rules of the agreement were complied with and Clerk Lidtke, not claimant, would have been the employe involved had the abolishment bulletin been improperly delayed. (See Rule 15). Rule 23 (a) provides that all claims must he presented in behalf of the employe involved and accordingly claim in behalf of claimant would stand to be declined in any event.
There is attached for the record, marked as Carrier's Exhibit No. 5, copy of the abolishment bulletin dated December 16, 1959 which gave notice to Clerk W. H. Lidtke that his permanent position as Warehouse Yard Clerk (Position No. 11) was to be abolished on December 21, 1959.
OPINION OF BOARD: The facts are not in dispute. Clerk Lidtke, who regularly filled yard clerk position No. 11, was assigned to fill a temporary vacancy on December 7, 1959. On December 11th he was declared the successful applicant for the job he was temporarily filling which was then on bulletin. Position No. 11 was blanked from December 7th to December 21st when it was abolished under a notice issued by the Carrier on December 16th. Claimant Kolb was the senior furloughed extra employe subject to being called to perform extra work in accordance with the rules.
The Petitioner argued that the Carrier had no authority to blank the position and should have bulletined the vacancy and returned the Claimant to the position as the next senior furloughed employe, as required in Rules 15 (d) and 15 (e).
The Carrier argued that it was not required by the rules to bulletin this position because it was a short vacancy. Short vacancies are governed by Rule 10 which reads as follows:
The word "will" used in the Rule, the Carrier urged, should not be taken to be a requirement that the position be filled but merely that if it were filled it should be filled in accordance with the Rule governing Seniority. The Carrier further argued that if the position had been bulletined the Carrier would have been under no obligation to fill it temporarily while the bulletin was pending. It pointed to Rule 9, which reads: 12397-14 670
Under this Rule, the Carrier argued, the position "may" be filled by appointment. The Carrier was thus, under no obligation to fill the position and it could, therefore, be blanked. The Carrier argued that the Petitioner acknowledged that blanking the job was proper when it abandoned its claim for the period between December 7th and 11th. Since the position was going to be abolished, bulletining the job would be an exercise in futility and unnecessary.
The Carrier also argued that if it had used all the time permitted in which to bulletin and then made an assignment on the last day permitted, it would have been after December 21st, the date on which the position was abolished and the Claimant would have had no claim.
The heart of this controversy is the right of the Carrier to blank a short vacancy. There is no rule in the agreement which permits blanking. When a vacancy occurs a Carrier is obliged to bulletin it if the vacancy is to last for more than thirty days. The rules with respect to bulletining do not, however, apply here because the vacancy was for less than thirty days. The Carrier itself determined that the vacancy would be a short vacancy and this has not been challenged by the Organization. In the absence of a challenge by the Organization the Carrier's estimate that the vacancy would be for less than thirty days must be considered as determinative of the length of the time the vacancy would take. Accordingly, none of the arguments used by the Carrier which would apply if the Carrier had bulletined the job has any relevance to this problem and must be disregarded.
The language used in Rule 10 requires that the Carrier fill such a position. The Carrier argued that if it were considered mandatory and every short vacancy had to be filled, no employe would be entitled to sick leave under Rule 47, which obliges the Carrier to allow compensation for sick time provided the employe's work is kept up by the remaining employes without additional expense to the Carrier. This argument is not relevant. We are not concerned with a position which has been vacant because the incumbent is on sick leave. Here the former incumbent now occupies another position. The Carrier's argument that the temporary assignment provided for in Rule 9, which covers the filling of a vacancy while a job is being bulletined, is also not applicable here because this job was not bulletined.
The Carrier frankly admitted that the position was not filled because business was bad and it intended to abolish the position. Carrier is permitted to abolish a job, which is the relief provided when a position is no longer needed. There is no provision permitting the blanking of a position while the Carrier debated the possibility of abolishing it. 12397-15 671
Rules 15 (d) and (e) support the Organization's argument that the Carrier is obliged to fill a short vacancy. Rule 15 (d) and (e) read as follows:
The obligation is placed on the Carrier to return the employe and on the employe to return to the job. The obligation on the employe is so binding that paragraph (e) provides that he will forfeit all seniority rights and be closed out of service if he fails to return within the prescribed time.
Note that the employe is permitted to waive his right on vacancies of less than thirty days' duration. Such language fortifies the Organization's argument that the Carrier was obliged to fill a short vacancy. Any other interpretation would render the right to return by furloughed employes meaningless. An employe who has a right to return must be returned.
The Carrier relies on the second sentence in Rule 15 (d). Since this position was not bulletined, all arguments with reference to the way bulletined vacancies were to be handled are not relevant.
Carrier argued that by withdrawing claims for the four days, December 7th, 8th, 9th and 10th, the Petitioner conceded that the Carrier may blank the position. This inference does not follow. During that period of time Lldtke was the regularly assigned employe on temporary assignment in another position. It is possible also to infer that Petitioner elected not to claim for this period because of the complications added by that fact and not because it agreed that the job could be blanked during this period of time. The failure of a Claimant to claim all the time that he might should not be construed as an admission that the Carrier's position is correct for those days omitted. It only means that the Petitioner makes no claim therefore.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: 12397-16 672