NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
CARRIER'S STATEMENT OF FACTS: Claimants are regularly assigned as drawbridge tenders at Beardstown, Illinois. Immediately prior to the dates specified in the claim, they were relieved on their rest days by regularly assigned relief employe J. P. Myatt. On June 18, 1964, relief man Myatt was formally dismissed from Carrier's service for being found in a drunken stupor while on duty as bridgetender. Myatt had been held out of service from May 30, pending result of investigation.
At the time Myatt was held out of service there were no employes holding seniority as bridgetenders who were not regularly assigned as such. The permanent vacancy resulting from Myatt's dismissal was bulletined and G. F. Chestnutt was temporarily assigned pending expiration of the bulletin. Chestnutt had performed vacation relief work on all of claimants' positions, including Myatt's, in 1963 and the amount of vacation relief was in excess of 60 days. He also performed some vacation relief early in 1964, and was a qualified former employe.
None of the claimants submitted a bid for the bulletined position, and it was then permanently assigned to Chestnutt at the expiration of the bulletin.
The claimants did not want the vacancy-they only wanted to work on their rest days.
The schedule of rules agreement between the parties, effective Sept. 1, 1949, and amendments thereto are by reference made a part of this submission.
OPINION OF BOARD: Claimants are regularly assigned as drawbridge tenders at Bridge 117.35, Beardstown, Illinois. Immediately prior to the dates specified in the claim, they were relieved on their rest days by a regularly assigned relief employe who was suspended from his position on May 29, 1964 pending an investigation. He was never permitted to return to work and was dismissed from carrier's employment on June 18, 1964 because of misconduct. On June 29, 1964 the permanent vacancy resulting from the dismissal was bulletined. G. F. Chestnutt was assigned to the position previously held by the discharged employe pending expiration of bulletining. The position was awarded to R. L. Livingston on July 14, 1964 after proper bulletining.
Carrier urges that this Claim be dismissed for the reason that Claimants failed to cite the specific agreement provision allegedly violated while this claim was being handled on the property. Although many prior awards sustain Carrier's contention in this case, there are a substantial number of awards that do not. We believe that each claim stands on its own record insofar as the citing of specific rules while being handled on the property. The test should be: 1. Whether or not the Claimant has misled Carrier; 2. Whether or not the facts presented by the Claimant were sufficiently clear to apprise the Carrier of the nature of the Claim; and 3. Whether or not the Carrier requested of the Claimant the specific rules allegedly violated prior to the final denial of the claim. We believe in the instant case that: 1. The Carrier was not misled; 2. That the facts presented by Claimant were sufficiently clear to apprise Carrier of the nature of the claim; and 3. That the record discloses no request of Carrier for citation of specific rules allegedly violated by Carrier prior to final denial
We believe that Carrier should not be allowed to "lay behind a log" during good faith negotiations between Claimant and Carrier. If Carrier did not understand the basis of the Claim, it needed only to have requested specific citations prior to its final denial. Therefore the motion of Carrier to dismiss is hereby denied.
Claimants allege that Carrier violated the agreement of the parties when it assigned G. F. Chestnutt instead of Claimants to fill the vacancy created by the dismissal of a regular employe until such time that the position of the dismissed employe was permanently assigned after proper bulletining, advertising, and bidding.
In the instant case the three Claimants held respective assignments to the three regular bulletined shifts. The dismissed employe had, prior to his dismissal, been regularly assigned to the relief shift. Claimants contend that they should have been assigned to work their respective days off at the time and one-half rate of his respective position.
In determining this claim we quote from Award No. 5311 which states: "It is significant to note that under the provisions of Rule 25, a vacancy of thirty days or less duration may be filled without bulletining, except that available employes holding seniority in the grade in which the vacancy occurs who are not assigned in the seniority district will be given preference in seniority order. The Claimant in this proceeding was assigned by bulletin to the second trick crossing flagman position at the time the vacancy occurred on the third
trick, and since he was holding an assignment in the same grade in the seniority district, he had no more right to the third trick assignment than any other employe." Award No. 5311 further states that doubling employes over from one shift to another is strictly an emergency measure which is resorted to only when there is no one else available to fill a vacancy which must be filled in order to meet the requirements of the service.
In the instant proceeding, Claimants were regularly assigned by bulletin to their respective positions at the time the vacancy occurred. There is no contention by Claimants that Carrier had any notice whatsoever that the vacancy would occur when it did.
Therefore, Carrier not only had the right but, under Rules 25 and 27(b), had the duty to fill such vacancy with a man not assigned in such grade in this seniority district.
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