Award No. 14378
Docket No. TE-14086
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Nicholas H. Zumas, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
(Eastern Lines)
STATEMENT OF CLAIM: Claim of the General Committee of The
Order of Railroad Telegraphers on the Atchison, Topeka and Santa Fe
Railway, that:
1. The Carrier violated and continues to violate the Agreement
between the parties when it refused and continues to refuse to
compensate D. E. Hamman account suspended from his regular
assignment in the absence of any emergency on June 19, 23, 24,
25 and 26, 1960.
2. The Carrier shall now be required to pay D. E. Hamman
eight (8) hours pro rata at the rate of his regular assignment and
in addition thereto, time and one-half for all hours worked outside the hours of his regular assignment.
EMPLOYES' STATEMENT OF FACTS: There is an Agreement between the parties, bearing an effective date of June 1, 1951, which is on file
with your Board and by reference thereto is made a part hereof.
The Agreement herein referred to provides that an extra employe
shall assume the work week and conditions of a regular assigned employe
and cannot, except as hereinafter provided, be suspended therefrom.
Extra telegrapher D. E. Hamman was assigned to protect the Relief
telephoner-towerman Position No. 9330, AT Tower, effective 7:59 A. M., June
11 to June 26, 1960, inclusive, with the following assignment:
Saturday and Sunday-7:59 A. M. to 3:59 P. M.
Monday and Tuesday-3:59 P. M. to 11:59 P. M.
Wednesday- 11:59 P. M. to 7:59 A. M.
Thursday and Friday-Rest days.
June 19 and on June 23, 24, 25 and 26, as well as the compensation that was allowed him for that service, was in
strict conformity with the terms of Article X, Section 2-a
of the Telegraphers' Agreement.
Second: The Third Division has consistently held that the unavoidable absence of extra employes to perform relief
service constitutes an emergency which permits the use of
regular assigned employes to perform relief service under
emergency relief service rules such as Article X, Section 2-a
of the current Telegraphers' Agreement. For example, see
Award No. 3768.
Third:
The resignation of Mr. Robertson, effective June 19,
1960, coupled with the unavoidable absence of available extra
employes, also created an emergency within the meaning and
intent of the emergency relief service rule, i.e., Article X,
Section 2-a. See Awards 11 and 12 of Special Board of
Adjustment No. 186.
Fourth: Since Telephoner-Towerman Position No. 8571 protected
by Hamman on June 19, as well as Telephoner-Towerman
Position No. 6572 that was also protected by the claimant
on June 23, 24, 25 and 26, were 7-day positions and had to
be filled each and every day, it would have been necessary to double the occupants of the two remaining Telephoner-Towerman positions at AY Tower in violation of the
Federal Hours of Service Law if the claimant Mr. Hamman
had not been used. The Third Division has consistently held
that agreement rules cannot be interpreted nor applied in
a manner that would countenance a violation of the Federal Hours of Service Law or any other law enacted pursuant to the police powers of the Government. Awards Nos.
4991, 4975, 6843, 8981, and others.
Yours truly,
/s/ L. D. Comer"
OPINION OF BOARD:
Claimant, an extra telegrapher, was assigned
to protect the relief telephone-towerman position commencing June 11, 1960.
Because of a resignation dated June 16 and effective June 19, Claimant was
suspended from the temporary vacancy to which he was assigned and required to protect the vacancy created by the resignation in addition to other
assignments during this period.
Claimant, through the Organization, contends that Carrier violated
Section 2-a of Article X of the Agreement by assigning him relief positions
when no emergency existed, and makes claim for a day's pay plus time
and one-half (for time worked outside his assigned hours) for June 19, 23,
24, 25 and 26.
The question in this dispute is whether an emergency existed so as to
warrant Carrier's action.
At the outset we deny that portion of the claim relating to June 19,
23 and 24. It is clear from the record that an emergency was created on
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June 19 by the resignation dated June 16 and effective June 19. The record
further shows that Claimant worked June 23 and 24 (rest days) and was
allowed payment for each of these days at the rate of time and one-half.
We are concerned, therefore, only with June 25 and 26.
This Board, in Award 10839, adopted the definition of emergency set forth
in Webster's Dictionary which states that it is "an unforeseen combination
of circumstances requiring immediate action."
Carrier contends that an emergency was created on the dates involved
by circumstances which completely depleted the telegraphers' 10-man extra
board. On Record page 47 the Carrier states:
"On June 23, 24, 25 and 26, one extra board telegrapher was
protecting an advertised temporary vacancy, one was protecting
an unadvertised temporary vacancy on the regular assignment of
the District Chairman who was on leave of absence, two were relieving regularly assigned telegraphers absent account illness, and
six (6) were engaged in protecting vacation relief and/or incidental vacation relief. The 1960 vacation schedule lists a total of
274 weeks of vacation to be protected, which would require an average of five (5) extra employes, but with the unexpected absence of
two telegraphers on leave to attend two weeks' military training
and the District Chairman also on leave of absence, in addition to
the two telegraphers absent account illness, there were not sufficient extra board employes available to protect the vacancies
on the dates here involved." (Emphasis ours.)
On the dates involved, we find that an emergency did not exist.
We cannot assume, as Carrier does, that absences due to military duty
were "unexpected" in the sense that there was not sufficient notice of their
taking place; nor can we assume that the leave of absence of the District
Chairman was not known well in advance. Coupled with this was the fact
that the two men who were absent because of two weeks' military leave
had returned on June 20.
But even if there were no extra telegraphers available, this does not in
itself constitute an emergency.
In Award 11044 (Dolnick),
this Board interpreted the same rule between the parties and held:
"The mere fact alone that there were no extra telegraphers available is not an `emergency' within the meaning of Article X, Section 2-a. There is no evidence in the record supporting the kind of
sudden, unforeseen events which would permit Carrier to re-assign
Claimants under that Article and Section of the Agreement."
We are satisfied that, unlike the situation in Award 11043, the resignation of Mr. Robertson on June 16 did not start a "chain of events which
could not have been foreseen" on June 25 and 26.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
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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 violated.
AWARD
Claim sustained as to June 25 and 26.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 29th day of April 1966.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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