NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5232) that:
(a) The Carrier violated the rules of the Clerks' Agreement, including but not limited to Rules 11, 19(d), 20(e), 29 and 84, when it required Mr. D. L. Gregson, occupying position of Yard Checker on the 12:00 Midnight to 8:00 A. M. shift at Stockton Yard, to leave that assignment in order to work a short vacancy on position of Train Desk Clerk on the same shift on June 23, 1961, and
(b) Mr. Gregson is entitled to and shall now be compensated at the straight time rate of his regular assignment of Yard Checker account denied the right to work his regular assignment on June 23, 1961, plus additional half time at the rate of Train Desk Clerk account required to leave his regular assignment to work the latter position on that date.
EMPLOYES' STATEMENT OF FACTS: On June 28, 1961, Mr. D. L. Gregson was holding a regular assignment to position of Yard Checker at Stockton Yard, rate $19.33 per day, which he had secured as a result of exercising his seniority, which seniority date was May 8, 1955.
The position of Train Desk Clerk at Stockton Yard, rated at $19.93 per day, with hours 12:00 Midnight to 8:00 A. M., was held by Clerk W. B. Giford, whose seniority date was October 18, 1960. Mr. Gifford laid off account illness and Mr. Gregson was required to leave his regular assignment as Yard Checker in order to work the short vacancy on the .position of Train Desk Clerk in the absence of Mr. Gifford, Mr. Grepon filed "Statement of Overtime Claim" reading:
"alc stepped from my regular assignment of Yard Checker, 12 A. to 8 A. M. to position of train-desk clerk 12 A. to 8 A. M. under protest, I claim time and one half for position of train-desk plus straight time for regular position."
(3) Under Award 4600, the Organization and your Board found that other employes could have worked the vacancy on overtime. In the instant dispute no qualified employe was available to work the vacancy on overtime and overtime was actually paid to another employe to fill the vacancy on claimant's 'Yard Checker assignment. No reference in the handling of this dispute on the property was made by either the Local Chairman or the General Chairman that claimant was required to suspend work to absorb overtime nor was there any intimation that overtime was allegedly absorbed as Carrier pointed out in its decision dated January 30, 1962.
Thus, it is clearly evident that the Organization is citing the three awards as precedents without considering either the underlying facts or its own arguments therein.
Further, neither Award 2884 nor Awards 4499 and 4600 support the claim here presented for the payment of time and one-half to claimant when he was used on the vacancy on the position of Train Desk Clerk. In fact, Award 2884 specifically denied the portion of the claim involving the payment of time and one-half.
The instant claim for two and one-half days' pay for one day's (eight hours) work is totally without support under the Agreement and Carrier strongly urges it be denied for the following reasons:
(1) The correspondence in connection with this claim quoted in Carrier's Statement of Facts reveals no dispute exists that no other qualified employs was available to fill the vacancy on the position of Train Desk Clerk.
(2) Claimant was properly compensated at the higher rate of the two positions under Rule 11; this rule does not support the claim for two days' pay for one day's work.
(3) Claimant worked each work day of his work week, including June 23, 1960, and the number of work days during that period were not reduced below five as provided in Rule 19. Further, his compensation for the week exceeded that provided by Weekly Guarantee. Paragraph (d), Rule 19, does not provide support for the claim for two days' pay for one day's work.
(4) Claimant was not suspended from work during regular hours to absorb overtime nor has any evidence been presented to Carrier that overtime was absorbed by using claimants. Further, Carrier paid overtime to Castle for filling claimant's assignment under paragraph (a), Rule 20.
(5) Neither Rule 29 nor Rule 34 provide for the additional compensation here claimed.
OPINION OF BOARD: The Petitioner contends that the Carrier violated Rules 19(d) and 20(e) when it assigned the Claimant to work a short vacancy on the position of Train Desk Clerk on the same shift.
Award 10594 held that the above rule does not give the employs an absolute right to work their assigned position five days per week.
Award 2884 which involved a similar dispute between the same parties held:
Therefore, a violation of the Agreement would occur only when the Carrier suspended work for the purpose of absorbing overtime.
The Petitioner relies on Awards 4499 and 4500 between the same parties. It must be noted in those two disputes that the Claimant's positions were blanked. In this dispute the Claimant's position was not blanked. The Carrier paid the overtime rate to the employe who worked the position. This is sufficient evidence to establish the fact that the Carrier did not suspend work to absorb overtime.
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