NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
David Dolnick, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
MISSOURI PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-4862) that:
1. Carrier violated the Clerks' Agreement when it permitted
Clerk R. W. Emanus, Alexandria, Louisiana, to move to a temporary vacancy of Check Clerk, allegedly under the provisions of Rule
9 (a), on the rest days of his regular assignment and work that position at the pro rata rate on Wednesday and Thursday, December 16
and 17, 1959, when Clerk W. E. MeManemin, a senior qualified employe, was available and entitled to the authorized overtime work
under Agreement provisions. Carrier's action was in violation of
Rules 9 (a), 25 (b), (c), 26 (a) and related rules of the Clerks'
Agreement.
2. Carrier shall be required to compensate Clerk R. W. Emanus
for the difference between the pro rata rate of $18.84 allowed and the
punitive rate of $28.26, to which he was entitled, amount $9.42, on
each day, Wednesday and Thursday, December 16 and 17, 1959, total
claim $18.84, account permitted to work on his regularly assigned
rest days; and
3. The Carrier shall be required to compensate Clerk W. E.
MeManemin for 8 hours at the punitive rate of $3.5325 per hour,
amount $28.26, for each day, Wednesday and Thursday, December
16 and 17, 1959, total claim $56.52, account not permitted to work the
authorized overtime, since he was the senior qualified, available
employe who filed claim and was entitled to perform the work.
EMPLOYES' STATEMENT OF FACTS: Alexandria, Louisiana, is located on what is known as the Carrier's Louisiana Division, and is located
approximately 293 miles south of Little Rock, Arkansas.
On the dates of claim the Carrier maintained the following clerical force
at the Freight Office and Yard Office at Alexandria, Louisiana, on the Louisiana Division Station and Yards seniority district and roster:
[7511
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783
(d) MeManemin was not entitled to be used under the rules.
(e) MeManemin did not perform work outside his regular assignment; therefore, is not entitled to the overtime rate of
pay for December 16 and 17, 1959, under the provisions of
Rule 25(b).
(f) The penalty rate for an employe wrongfully deprived of work
to which entitled is the pro rata rate of pay, and not the
overtime rate of pay, as claimed. See Awards cited on this
point.
The Employes have failed to establish that there was a violation of the
Agreement, and the Carrier respectfully requests that the Board deny the
claims.
OPINION OF BOARD:
Immediately prior to December 15, 1959, Claimant, R. W. Emanus, was the regularly assigned Check Clerk with work hours
of 12:01 A. M. to 8:30 A. M., Monday through Friday. On December 15, 1959,
he received notice that he was displaced by a senior employe effective 12:01
A. M., Wednesday, December 16, 1959. Claimant Emanus immediately exercised his seniority rights under Rule 14 (e), and displaced a junior employe
on Relief Yard Clerk Position No. 4, which position had designated rest days
of Wednesday and Thursday.
Claimant Emanus, on December 15, 1959, also exercised his seniority rights
to a new Check Clerk position, and requested assignment to that position.
The hours and the work week of the new position were identical with the
hours and work week of the position from which Emanus had been replaced.
Both had assigned hours 12:01 A. M. to 8:30 A. M., Monday through Friday.
Carrier assigned Emanus to the new Check Clerk position effective at
12:01 A. M. on December 16, 1959.
On December 15, 1959, Carrier sent Claimant Emanus two wires. The
first, which dealt with his request to displace the junior employe on Relief
Yard Clerk Position No. 4, read as follows:
"Account being displaced by A. B. Bankston at the Alexandria
Freight House, this is your authority to displace V. E. Simmons on
Relief Position No. 4, Alexandria Yard, effective Friday, December
18th. M-4-5."
The second was in response to Emanus' request to fill the new Check
Clerk position. This wire read:
"This is your authority to oldhead 12:01 A. M., Warehouse Clerk
Position pending bid and assignment. M-53."
It is obvious that Claimant Emanus could not have occupied both Relief
Position No. 4 and the new Check Clerk position on December 16, 1959. Since
he requested assignment to the Check Clerk position after he exercised his
right to displace the junior employe on Relief Position No. 4, it is a proper
assumption that he preferred the Check Clerk position, and the Carrier complied with that request.
Petitioner contends that Carrier violated Rule 9 (a) when it permitted
Claimant Emanus to work the Check Clerk position on the rest days of
Relief
Position No. 4. Rule 9 (a), in part, says:
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"1. The employe making application to move will not be permitted to begin work on the temporary vacancy on either of the
rest days of the position occupied at the time he makes the request."
(Emphasis ours.)
Claimant Emanus did not occupy Relief Position No. 4 on December 15,
1959. While he was authorized to displace the junior employe in that position on December 18, he did not occupy it for the purpose and intent of
Rule 9 (a).
The purpose and intent of Rule 9 (a) is to permit employes to fill temporary vacancies within the provisions of Rule 14. Rule 14 (e) says:
"(e) Employes actually displaced account position abolished or
through the exercise of seniority by senior employes, must exercise
their seniority rights (subject to the fitness and ability provisions
of Rules 4 and 7) over junior employes by assuming the duties and
hours of asspgnment of the position sought, or by designation of
record, copy to the Division Chairman . . . ." (Emphasis ours.)
Claimant Emanus did not assume the duties of Relief Position No. 4.
Further, he chose assignment to the new Check Clerk position. By so doing,
he could not have assumed the duties of Relief Position No. 4.
Since Claimant Emanus was properly assigned to the new Check Clerk
position on December 16 and 17, 1959, it follows that there is no basis for
the claim of Claimant McManemin.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That Carrier did not violate the Agreement.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of July 1964.