THIRD DIVISION
(Supplemental)
moving. Clerk Gooding worked a few minutes actual overtime, but made no claim for the few minutes worked which is customary. Mr. Gooding left the yard office for home at 4:35 P. M., March 13. The record shows that Clerk J. W. Bettencourt was assigned to work from 4 P. M. to 11:59 P. M. on March 13, 1963, and according to the records he was sent to the Drill Yard at 4:20 P. M., March 13, to carry on Clerk Ward's work. Clerk Bettencourt worked only from 4 P. M. to 11:59 P. M. on March 13, 1963, or a total of 8 hours. The claims of Clerks Gooding and Bettencourt are baseless.
Clerk T. E. Rhodes had no assignment on March 13, 1963-he was off on one of his two rest days. Clerk Rhodes was not entitled to work on his assigned rest day.
It is a fact that what the Brotherhood is demanding for your Board to do is to require the Carrier to grant three (3) additional days' pay, 24 hours, in addition to the one (1) days' pay, 8 hours, Carrier already paid out as sick leave to Clerk Ward, making the total cost 32 hours straight time pay for having not more than 8 hours work performed on March 13, 1963, at Savannah Yard. Of course the claim handled on the property demanded a total of 36 straight time hours as the penalty to be paid the claimants, in addition to the 8 hours paid Clerk Ward who was sick. That would make a total of 44 straight time hours Carrier would have to pay, according to the Brotherhood'& demands on the property.
It is a fact that the job or assignment was there to be filled by the regular incumbent, Clerk C. A. Ward. It was unfortunate that Clerk Ward was off sick, but that most certainly was not the fault of the Carrier. Clerk Ward was paid his regular pay for the 8 hours on March 13 under the Sick Leave Rule, Rule 46, of the agreement. Carrier did not require any of the remaining clerks in Savannah Yard to work any overtime; therefore, no overtime was absorbed. No one was required to work on their rest day or on a holiday, therefore no rule was violated, as alleged by the Brotherhood. All the Carrier tried to do was to keep the work going with the remaining force, which was sufficient that day, while Clerk Ward was off sick and under pay. The claim lacks merit.
It is a fact that when Rule 46 was negotiated granting sick leave pay to the clerical employes, paragraph (c) was placed in the rule for the very purpose of blanking as many jobs as possible and/or assigning the work to the remaining employes in the department in order to lower the tremendous financial cost to the company by the amount it could blank some of the jobs. The only exceptions are that no overtime, rest day or holiday work will be required of the remaining employes. The claims are baseless.
There is an agreement in effect between the parties, effective December 1, 1956, as amended. The baseless claim filed and handled on the property is not substantiated by any rule, interpretation, or historical practice, therefore, it was denied in its entirety by each and every officer of the Carrier. The claim filed and handled on the property has never been appealed to your Board. The claim which the Brotherhood is here attempting to assert, was never filed or handled on the property.
OPINION OF BOARD: On March 13, 1963, there occurred a temporary vacancy in the second shift (3:00 P. M. to 11:00 P. M.) Yard Clerk position
due to illness of the regularly assigned employe. Claimant Yard Clerk Gooding, working the first shift (8:00 A. M. to 4:00 P. M.) and Claimant Yard Clerk Bettencourt, working the second shift (4:00 P. M. to 11:59 P. M.) were assigned to perform the duties of said sick yard clerk.
The Organization claims that Claimants Gooding and Bettencourt's assignments were improper and a violation of Rule 37, and that the work of the vacant position should have been performed by Claimant Rhodes, senior available employe, who was on his rest day; and that Claimants Gooding and Bettencourt are entitled to 8 hours pro rata time at the regular rate of their positions.
The Carrier's position is that Rule 46, Sick Leave, and in particular 46(c) permits the duties of the sick employe to be assigned to the remaining employes in the department, namely in this instance, Gooding and Bettencourt.
The Organization contends that Rule 46(c) is not applicable because the record shows that it was necessary for the position to be kept up daily due to Claimants Gooding and Bettencourt being required to fulfill the duties of the sick employe.
A close analysis of Rule 46(c) shows that the Carrier may blank the position if there is not a necessity for the position to be kept up daily. This does not mean, as the Organization would have us believe, that the Carrier is prohibited from assigning the duties of a sick employe to the remaining employes in the department unless it proves that there was no necessity for the position to be kept up daily. This is required only when a position is to be blanked. The Carrier therefore was authorized, by virtue of said Rule 46(c), to assign the duties of the position to Claimants Gooding and Bettencourt, provided no overtime would be required of them.
The Carrier admits that Claimant Gooding worked a few minutes overtime on the day in question. Rule 46(c) is explicit in its requirement that no overtime be required of the remaining employes. Carrier argues that Claimant Gooding did not apply for overtime. However, the test is not whether an employe actually applied for overtime, but whether he actually worked overtime. Inasmuch as there is no dispute as to Claimant Gooding working overtime, the Carrier violated the terms of the agreement when it permitted him to work said overtime. Therefore, the claim of employe Gooding will be sustained.
There is no allegation or contention by Petitioners that Claimant Bettencourt worked overtime. Claimant Rhodes didn't work on the day in question. Thus, it is the opinion of this Board that the Carrier did not violate the terms of this agreement as to Claimants Bettencourt and Rhodes and their claims will be denied.