STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Ann Arbor Railroad Company, that:
1. Carrier violated the parties' Agreement when it used junior extra Telegrapher R. E. Daywalt to fill a tag-end rest day vacancy on the third shift Telegrapher-Leverman's position at Hallett, Michigan, on April 6, 13 and 20 1960 at a time when senior extra Telegrapher T. G. Sage was idle, available, and qualified and willing to perform the work.
2. Carrier shall, because of the violation set out in part 1 hereof, compensate extra Telegrapher T. G. Sage, a day's pay at the rate of the third shift Telegrapher-Leverman's position at Hallett for each of the three (3) days on which he was deprived of work by reason of Carrier's violative act.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement by and between the parties to this dispute, effective September 1, 1955, and as otherwise amended.
T. G. Sage, hereinafter referred to as claimant, entered Carrier's service on July 9, 1956, and pursuant to the provisions of Rule 23 of the parties' Agreement acquired a standing on the seniority roster as of that date over the "Ann Arbor Railroad from Toledo to Frankfort, both inclusive."
R. E. Daywalt, hereinafter referred to as the "junior employe" entered Carrier's service on October 11, 1958, and in line with the provisions of Rule 23 he, too, acquired a standing on the seniority roster as of that date over the "Ann Arbor Railroad from Toledo to Frankfort, both inclusive." His established headquarter station is at Toledo, Ohio.
In the exercise of seniority as acquired under Rule 23 the claimant in accordance with the provision of Rule 24 (Filling Positions) became the regularly assigned occupant of a Telegrapher's position at Boat Landing, Frankfort, Michigan. He held this position until displaced therefrom by the occupant of the Agent-Telegrapher's position at Beulah, Michigan, an employe holding superior seniority rights, following which he reverted to the extra list.
Seniority rights of employes covered by the telegraphers' agreement are limited to those rights expressly set forth therein. This Division in its Award No. 4439 held:
The burden of proof of violation of the telegraphers' agreement as contended in the Committee's ex parte Statement of Claim is upon the petitioner and the petitioner has not cited any rules in the telegraphers' agreement which required the Carrier to use the claimant to perform "tag-end" relief work on the date in question.
In the absence of a restriction imposed by law or granted to the employes by agreement through the processes of collective bargaining, an employer has the right to manage its business and direct the working force as the discretion of its officers may indicate will best serve its needs, and it is the function of good management to arrange the work, within the limitations of the collective agreement, in the interests of economy.
Therefore, as the telegraphers' agreement does not grant senior extra telegraphers first call for "tag-end" relief work, and as the telegraphers' agreement provides that the Carrier is not required to pay "for deadheading" to employes who perform "relief service" on the rest days of the employes whom they are relieving, and further provides that "Turnovers between regular and relief employes shall be without expense to the Carrier, "Rule 9, Section 1 (e), it was not only within the scope of good management to use an extra telegrapher both qualified and on hand at Toledo, to perform "tag-end" relief work at Hallett Tower at Toledo, and to thus eliminate the expense involved in having an extra telegrapher deadhead from Beulah, where claimant voluntarily maintained his headquarters, to Toledo, a distance of about 279 miles, and a similar distance on the return trip from Toledo to Beulah in connection with filling the three "tag-end" relief days in question but such use of the junior employe fell within the latitude retained by the Carrier under the terms of the telegraphers' agreement.
OPINION OF BOARD: Except for the dates involved we have the same identical parties, including Claimant, and the same identical issues presented here as in Award No. 13227, recently adopted by this Board, and controlling here.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
to the Chief Dispatcher. This does not apply to vacancies where auditor's check is necessary.
(1) When reducing forces seniority shall govern. When forces are increased, employes shall be returned to service in order of their seniority. Employes desiring to avail themselves of the provisions of this paragraph must file their address with the Chief Dispatcher at the time of reduction, and advise promptly of any change in address. Employes failing to file their address with the Chief Dispatcher at the time of reduction, or advise promptly of any change in address, or to return to the service within seven (7) days after being notified by mail or telegram sent to their last known address or give satisfactory reason for not doing so will be considered out of the service.
Seniority rights of employes are confined to those which exist only by reason of an agreement between them and the Carrier.
Under the telegraphers' agreement in effect on this property September 1, 1955, the employes covered thereby are entitled only to the seniority rights which are therein accorded them.
Neither Rule 23 nor any other rule in the telegraphers' agreement in effect on this property provides that this Carrier is required to use senior extra telegraphers to perform "tag-end" relief work.
The fifth paragraph of Rule 9, Section 1 (e) (quoted on page 2 of this submission) relating to the performance of necessary work on rest days of employes regularly assigned on positions does not stipulate that work on rest days not covered by regular relief assignments ("tag-end" relief work) will be performed by the senior qualified extra man or men, the rule simply states that such work "may be performed by qualified extra men, if available."
which contemplates clearly that the senior extra telegrapher will not necessarily be used in filling temporary vacancies. However, this is the only provision in the rules under which an extra telegrapher may use his seniority to obtain a temporary vacancy of less than thirty (30) days duration.