NATIONAL RAILROAD ADJUSTMENT BOARD
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:
1. Carrier violated the Rules of the Clerks' Agreement when
work was required by the Carrier to be performed on the unassigned
rest days of the First Yard Checker position, Job No. 1187, Alliance,
Nebraska and the regular employe was not permitted to work.
2. Mr. B. C. Brice, occupant of Job No. 1187, be compensated eight
(8) hours at the overtime rate of the position, ($18.82 per day) starting Saturday and Sunday, March 25 and 26, 1961 and for each succeeding Saturday and Sunday to and including May 6 and 7, 1961.
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:
Wednesday - Roundhouse Clerk - Job No. 7005
Thursday - 2nd Yard Checker-Job No. 1188
Friday - 2nd Yard Checker-Job No. 1188
Saturday - 1st Yard Checker-Job No. 1187
Sunday - lst Yard Checker-Job No. 1187
Monday - Rest Day
Tuesday - Rest Day
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'
(5181
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536
It appears that it was proper to use Mrs. Everett and Mrs.
Jernigan under such circumstances. This is the conclusion reached
by the Board in Award 7191 covering a dispute between the same
parties and involving an identical issue. That Award is controlling
here. Accordingly, claim will be denied."
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.
In conclusion, the Carrier respectfully submits:
1. The work claimed by the Claimant was unassigned work to
which Rule 36 (k) is applicable.
2. The unassigned clerks used stood for this work under Rule 36 (k).
3. It is recognized on this property that "unassigned", "laid off"
and "furloughed" are synonymous in the application of the rules.
4. Rule 25 does not require the establishment of an extra list before unassigned clerks may be used under Rule 36 (k).
5. Settlements on the property and Adjustment Board awards
conclusively support the Carrier's contentions.
6. The unassigned employes used 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.
The claim must be denied in its entirety.
(Exhibits not reproduced.)
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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537
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:
"The Railway Labor Act provides, in Section 3 First (i), that if,
after certain described disputes between an employe or group of employes and a carrier or carriers have been handled in the usual manner
up to and including the chief operating officer of the carrier designated to handle such disputes, no settlement is reached the parties or
either of them may refer such disputes to the Adjustment Board.
The Rules of Procedure of the Board, as set out in 'Circular No. 1',
contain the following:
'No petition shall be considered by any division of the
Board unless the subject matter has been handled in accordance with the provisions of the Railway Labor Act, approved
June 21, 1934.'
Thus, an absolute prerequisite to consideration by the Board of
any petition is a showing that the subject matter has been handled
'in the usual manner up to and including the chief operating officer
of the carrier designated to handle such disputes' prior to its submission to the Board.
The record before us shows that such handling was not given
its subject matter. We are, therefore, without the power or authority
to consider the petition on its merits. The claim must be dismissed
accordingly."
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.
13664-21
538
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 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 the Agreement was not violated.
AWARD
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.