BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Broth erhood (GL 5696) that:
1. Carrier violated the Clerks' Rules Agreement at Nahant, Iowa, when it called an employe to fill a temporary vacancy on a regularly assigned position and reduced its hours to less than eight for that day.
2. Carrier shall now be required to compensate employe J. V. Crisci at the overtime rate of Yard Clerk Position No. 2550 for an additional four (4) hours on each of the following days:
EMPLOYES' STATEMENT OF FACTS: At Nahant, Iowa, the Carrier maintains three yard clerk positions identified as Yard Clerk Position Nos. 2550, 2551 and 2552.
Employe R. A. Tubbs is the regular occupant of Position No. 2550 and is assigned from 7:30 A. M. to 3:30 P. M., Monday through Friday, with Saturday and Sunday rest days.
Employe J. V. Crisci is the regular occupant of Position No. 2551 and is assigned from 3:30 P. M. to 11:30 P. M., Tuesday through Saturday, with Sunday and Monday rest days.
Employe F. K. Cox is the regular occupant of Position No. 2552 and is assigned from 11:30 P. M. to 7:30 A. M., Thursday through Monday, with Tuesday and Wednesday rest days.
Position No. 2550 is a five-day position. Position Nos. 2551 and 2552 are seven-day positions. The rest days of Position Nos. 2551 and 2552 are included within regular Relief Assignment No. 11, which is assigned as follows:
There is attached hereto as Carrier's Exhibit "B" copy of letter written by Mr. S. W. Amour, Assistant to Vice President, to Mr. H. V. Gilligan, General Chairman, under date of June 11, 1964 and as Carrier's Exhibit "C" copy of letter written by Mr. Amour to Mr. Gilligan under date of November 23, 1964.
OPINION OF BOARD: The following facts are not controverted: Employe R. A. Tubbs is the regular occupant of a Yard Clerk position and was assigned from 7:30 A. M. to 3:30 P. M., Monday through Friday, a five day position. Claimant J. V. Crisci was the regular occupant of a Yard Clerk position and was assigned from 3:30 P. M. to 11:30 P. M., Tuesday through Saturday, a seven day position. In January 1964, there were no available extra or furloughed employes at Nahant, Iowa. Due to the absence of the regular occupant Tubbs from his assignment, his position was temporarily vacant on Tuesday, January 28, 1964, and on Thursday, January 30. As there was no available extra or furloughed employe, Claimant as the senior available Yard Clerk was called for the vacancies and worked for four (4) hours on January 28 and four (4) hours on January 30.
Claimant concedes that Carrier has a right under their agreement to blank a position but contends that such blanking must be for the full eight hours of Tubbs' assignment, under the basic pay rule, and not for a part of the day or four (4) hours of his regular assignment; he asks for four (4) hours additional pay for January 28 and January 30, the days on which he was not permitted to complete the assignment.
Carrier contends that there is no rule which requires the Carrier to fill a position when the regularly assigned occupant thereof absents himself therefrom. Carrier, contrary to Claimant's position, contends that Carrier may blank a temporary vacancy either wholly or partially. Carrier submits that under circumstances such as those present in the instant case, :Memorandum of Agreement No. 9 is controlling and provides who shall be called to perform the overtime required. Memorandum of Agreement No. 9 (Revised June 10, 1960) Article 4 is, as follows:
Carrier further contends that in pursuance of this provision, the overtime work required of and performed by Claimant was performed during hours that were not continuous with his regular work hours and for the performance of such work Claimant was properly compensated under the provisions of Rule 34 (a) of the Agreement which reads, as follows:
It is a well known rule of construction that where there is a dispute ag to the possible application of rules, alleged to be conflicting, that the rule or rules having specific application must be used. See Award 8275-Bakke; Award 12686-West.
Applying this rule of construction to the instant case, Memorandum of Agreement No. 9 provided who should be called to perform the overtime required due to Tubbs absence and Rule 34 (a) of the Agreement provided the method of payment for such employes called to perform such overtime work; in view thereof Claimant was not only properly called for the required overtime work but he was, also, properly compensated for it.
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
The Referee erred in his Opinion when he denied Claimant a full day's pay for Tuesday, January 28, 1964.
Claimant Crisci was called to perform service for four (4) hours on that day (Tuesday, January 28, 1964) on a vacancy that existed between the hours of 7:30 A. M. and 3:30 P. M. The 5-day work week of Claimant Crisci extended from 3:30 P. M., Tuesday to 3:30 P. M., Sunday; and his two rest days extended from 3:30 P. M., Sunday to 3:30 P. M., Tuesday. Therefore, he was called to work on his second rest day, and should have been compensated in accordance with Rule 33-Service on Rest Days, Paragraph (c) reading as follows: