PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES

CHICAGO, BURLINGTON AND QUINCY

RAILROAD COMPANY


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, (GL-5236) that:





EMPLOYES' STATEMENT OF FACTS: Prior to the claim dates there was in existence at Alliance, Nebraska a Relief Clerk, Job No. 1, with the following assignment:









Under date of March 21, 1961 the Carrier issued notice to the employes advising that the Second Yard Checker, Job No. 1188 and Relief Clerk No. 1, as being abolished, effective March 19, 1961. See Employes' Exhibit No. 1.

Also under date of March 21, 1961 the position of First Yard Checker, Job No. 1187, was bulletined as a permanent vacancy, Monday through Friday, 12:00 Noon to 8:00 P. M., Saturday and Sunday rest days. See Employes'


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In the case at bar there can be no dispute over whether or not the furloughed or unassigned clerks used on the claim dates were "bona fide" employes.
















The Carrier is certain that it has produced ample evidence to prove that. the claim is invalid. However, without receding from that position in the slightest, the Carrier would point out that even if for some unexplained reason the claim should be sustained, the demand for punitive rate cannot be supported. The National Railroad Adjustment Board has consistently held that pay for time lost can only be made at the pro rata rate. This principle has been so well established that citation of authority should no longer be necessary.






OPINION OF BOARD: For the period from March 25 to and including May 7, 1961, Carrier used the services of one or another of three named furloughed employes to work the unassigned rest days (Saturday and Sunday of each week) of the position of First Yard Checker, Job No. 1187, at Alliance, Nebraska. Claimant was the regular incumbent of that position. He makes claim for compensation for these days at the overtime rate for the job.


When this claim was initiated and progressed on the property it was predicated solely on the ground that "due to the delay of the Carrier in establishing and setting up an extra list as provided for under the provisions of Rule 25, of the Agreement effective January 1, 1961, for the relief of such positions as 1st Yard Checker, Job 1187, and as no agreement was made for handling this relief between the parties, we claim that Rule 36 (k) of the Agreement * * * has been violated." In other words, the sole basis for the claim as considered on the property was that, absent the timely establish-

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ment of an Extra List, the Carrier was not privileged to use the services of the three laid off employes to work the unassigned rest day of the Claimant's position. Instead, this work, under the strictures of Rule 36 (k) of the Agreement, had to be performed by the "regular employe" occupying the position, namely the Claimant. Manifestly, there was no suggestion at that time that the three furloughed employes in question were ineligible to accept the assignments because of any failure to protect their seniority rights, or that they were not bona fide employes of the Carrier on legitimate layoff status and available for call at all times. (Cf., Award 6999-Carter.)


It was only on appeal to this Board that, for the first time, the basis of this claim was entirely recast. Thus in the Employes' submission of the dispute to this Board the stated position in support of the claim was that the three furloughed employes whose services were used were ineligible because they "failed to protect their seniority rights when laid off in force reduction", and consequently had "forfeited all seniority rights to work when a regular employe was available and willing to perform the services." In this .context the Employes' earlier position urged on the property was seemingly abandoned or relegated to the background.


While the Carrier makes vigorous rebuttal of this newly injected basis for the claim, it urges primarily that it now be dismissed in its entirety on jurisdictional grounds. In light of the provisions of Section 3, First (i) of the Railway Labor Act, as consistently construed and applied by this Board, the Carrier's jurisdictional position is here well taken. The opinion of this Division in Award 11182 (no Referee) sets forth in some detail the traditional rationale for such a result, as follows:








See also Awards 12178 (Stack), 11346 (no Referee), 11212 (no Referee), 10416 (Sheridan), 12001 (Dolnick), 11910 (Coburn), 8324 (McCoy), 6692 ~(Leiserson), 7030, 5151 (Carter), 6140, 5502 (Whiting), among many others.

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We hold, therefore, that the claim in its new guise is not properly before us, is barred from our consideration and should be dismissed in its entirety.

FINDINGS: The Third Division of the Adjustment Board, cpon 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





    Claim dismissed.


              NATIONAL RAILROAD ADJUSTMENT BOARD

              By Order of THIRD DIVISION


              ATTEST: S. H. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 17th day of June 1965.