NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Broth~erhood that:
(1) The Carrier violated the effective Agreement when it failed
to assign Assistant Section Foreman Harold Sturgeon to fill the
temporary position of Section Foreman at Donnellson, Illinois while
the regular occupant thereof was on vacation during the period from
January 5 through January 16, 1959.
(2) Mr. Harold Sturgeon now be allowed the difference between
what he received at the Assistant Section Foreman's rate and what he
should have received at the Section Foreman's rate during the period
referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: The claimant and Walter Whitlock have established and hold seriority on the same seniority district as
follows:
Section Foreman
Name Trackman Assistant
Harold Sturgeon July 7, 1950 September 16, 1957
Walter Whitlock April 17, 1929 None
During the period from January 5 through January 16, 1959, the regularly
assigned Section Foreman at Donnellson, Illinois was on vacation.
The Carrier assigned and used Mr. Walter Whitlock, who holds no seniority
rights as an Assistant Section Foreman, to fill the vacationing Section Foreman's position although Claimant Sturgeon was ready, willing and available
to perform such relief service.
Con§equently, the instant claim was filed because of the Carrier's failure
to observe the principles of seniority as stipulated in the Agreement rules in
making this assignment.
The claim was declined as well as all subsequent appeals.
Exhibit "C"-February 19, 1959 -Claim-Vice-Chairman to Roadmaster.
Exhibit "D"-April 8, 1959 -Denial of Claim-Roadmaster to
Vice-Chairman.
Exhibit "E"-May 11, 1959 -Appeal-Vice-Chairman to Division
Engineer.
Exhibit "F"-June 19, 1959 -Denial of Appeal-Division Engineer to
Vice-Chairman.
Exhibit "G"-June 23, 1959 -Appeal-General
Chairman to Asst.
Chief Engineer.
Exhibit "H"-July 21, 1959 -Denial of Appeal-Asst. Chief Engineer
to General Chairman.
Exhibit "I"-August 26, 1959
-Appeal-General Chairman
to Chief
Engineer.
Exhibit "J"-September 2, 1959 -Denial of Appeal-Chief Engineer to
General Chairman.
Exhibit "K"-September 9, 1959-Appeal-General Chairman to Director
of Personnel.
Exhibit "L"-October 1, 1959 -Denial of
Appeal-Director of
Personnel to
General Chairman
.
OPINION OF BOARD:
During the period January 5 through January 16,
1959, Section Foreman Worrell at Donnellson, Illinois, was on vacation. There
was only one employe on the same seniority district holding seniority as a
section foreman but not working as such. That
employe rejected an
offer of
assignment to the vacationing foreman's position. The position was filled by
Trackman Whitlock. Whitlock held seniority only as Trackman. Claimant held
seniority as Trackman and as Assistant Section Foreman in which latter classification he was working. Neither Whitlock or Claimant held seniority as Section Foreman. On February 19, 1959, the Organization filed claim in which it
alleged:
"1.That the carrier violated the
effective agreement when
on
January 5-9 and 12-16, all dates inclusive, it did not assign
employe
Harold Sturgeon to the vacant position of section foreman at Donnell
son, Illinois. (Emphasis ours.)
The Organization argues that in assigning a Trackman instead of the
Assistant Foreman to the vacationing foreman's position, Carrier violated Rule
12 of the basic
agreement which
reads:
Rule 12. Basis of Promotion.
"(a) A promotion is an advancement from a lower rank to a
higher rank.
"(b) Promotion shall be based on ability, merit and seniority.
Ability and merit being sufficient, seniority shall prevail. Assistant
Foremen will be given preference in filling vacancies or new positions
as Foremen." (Emphasis ours.)
14500 3
and Article 12 (b) of the Vacation Agreement which reads:
"Article 12 (b) of the Vacation Agreement reads as follows:
(b)As employes exercising their vacation privileges will be com-
pensated under this agreement during their absence on vacation, retain
ing their other rights as if they had remained at work, such absences
from duty will not constitute 'vacancies' in their positions under any
agreement.
When the position of a vacationing employee is to be filled
and regular relief employe is not utilized, effort will be made to observe
the principle of seniority." (Emphasis ours.)
Rule 12 is inapposite. It deals with "Promotion" which is not here involved;
and, "vacancies or new positions as Foremen." That the absence of the vacationing foreman did not create a vacancy is made certain in Article 12 (b) of
the Vacation Agreement.
Length of service or position held do not of themselves vest an employe
with any rights. Seniority rights, if any, are vested by the employment contract. We look to and are constrained by the rules of the agreement. Finding
nothing in the rules that supports the alleged deprivation of a seniority right,
we are compelled to deny the Claim.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and 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
That Carrier did not violate the Agreement.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: S. H. Schulty
By Order of Third Division
Dated at Chicago, Illinois, this 8th day of June 1966.
Keenan Printing Company, Chicago, Illinois Printed in U. S. A.
14500 4