SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5562) that:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement bearing effective date October 1, 1940, reprinted May 2, 1955, including revisions (hereinafter referred to as the Agreement) between the Southern Pacific Company (Pacific Lines) (hereinafter referred to as the Carrier) and its employes represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Employes) which Agreement is on file with this Board and by reference thereto is hereby made a part of this dispute.
Effective July 31, 1961, Mr. O. H. Olson, regular assigned incumbent of Position No. 51 Assistant Chief Clerk, Eugene, Oregon, hours 1:30 P. M. to 9:30 P. M., rest days Saturday and Sunday, retired from Carrier's service. At 11:00 P. M. on August 1, 1961, Mr. G. E. Moorehead, hereinafter referred to as the Claimant, absent of a qualified and available unassigned employe, made application to fill Position No. 51 pending assignment by bulletin. At this time Claimant was regularly assigned to Position No. 41 Relief Clerk, with the following work schedule:
Monday, July 31, 1961, and the vacancy so created on Position No. 51 was advertised on Superintendent's Vacancy Notice No. 29 on Wednesday, August 2, 1961, and was awarded to J. A. Becher on Assignment Notice No. 30 on August 11, 1961. Mr. Becher assumed the position on that date.
Position No. 51 was blanked on August 1, 1961, and at 11:00 P. AT., that date, C. E. Moorehead (hereinafter called the "claimant"), assigned to relief position described above, filed written application under the provisions of Rule 34(c) of the current agreement to work Position No. 51, to assume duty thereon at 2:30 P. M., August 2. His application to fill Position No. 51 was declined and said position was also blanked on August 2 and 3.
On August 4, 1961, Carrier decided to fill Position No. 51, and unassigned clerk P. A. Brabham, who was qualified to work Position No. 51, was called and used, under the provisions of Rule 34(b) of the current agreement, to fill that position August 4 through August 10.
No unassigned employes, qualified to fill either Position No. 51 or claimant's relief position, were available on August 1, 2 or 3, 1961.
By letter dated September 21, 1961 (Carrier's Exhibit A), Petitioner's District Chairman submitted on appeal claim to Carrier's Division Superintendent in behalf of the claimant, C. E. Moorehead " . for eight hours paid for and not worked at pro rata rate of Position No. 51, Assistant Chief Clerk, Eugene, for each date August 2, 3, 4, 7, 8, 9, 10, 1961", and by letter dated November 17, 1961 (Carrier's Exhibit B); the Superintendent denied the claim.
By letter dated January 8, 1962 (Carrier's Exhibit C), Petitioner's General Chairman appealed the claim to 'Carrier's Assistant Manager of Personnel, and by letter dated September 16, 1963 (Carrier's Exhibit D), Carrier's Assistant Manager of Personnel denied the claim.
OPINION OF BOARD: On July 31, 1961, the regular incumbent of Position No. 51, Assistant Chief Clerk, Eugene, Oregon, retired from service. The vacancy so created was advertised on August 2 and awarded on August 11. In the interim, Claimant filed written application under Rule 34(c) to work Position No. 51 beginning August 2. The Rule provides:
"(c) If a qualified unassigned employe is not available, position will be filled by the senior assigned employe who makes written application therefor and is qualified for such vacancy, and when assigned shall take all of the conditions of the position; if a qualified unassigned employe thereafter becomes available, he may not displace the regular employe filling the temporary vacancy unless he is senior to such regular employe."
On August 1, 2 and 3, there were no qualified unassigned employes available, and Claimant was the senior assigned employe. Claimant was not assigned because Carrier stated that the position was blanked on those days.
On August 4, a qualified, unassigned clerk became available, and was assigned to work the position until the new incumbent was assigned on August 11. The claim is for the period August 2 through August 10 when Claimant should have been assigned to the position.
The Organization does not contest Carrier's right to blank the position. It asserts, however, that Carrier did not, in fact, blank it because the work thereof was distributed to other, on-duty employes.
Carrier conceded that some of the work of Position No. 51 was done by other employes, but not to the extent claimed by the Organization. For example, Superintendent A. W. Kilborn wrote, on November 17, 1961:
Carrier makes two arguments with respect to the work done by on-duty employes: 1. Thirty minutes of work by another employe can hardly be construed as performance of the work of Position No. 51. 2. The work done by other employes was not work which belonged exclusively to Position No. 51.
The evidence is that more than 30 minutes of work was involved. Superintendent Kilborn described it as answering phones from 3:00 P. M. to 6:00 P. Al. But, even if it were only 30 minutes, the question remains: who was entitled to perform it, the on-duty employes or the Claimant? Rule 34(c) provides the method of filling a vacant position. While it does not compel Carrier to fill the position, it does provide the order in which employes are to be used to perform that work of the position which Carrier assigned to be performed. It does not matter that only a fraction of the work was done.
The Rule does not provide that a different order be used if only part of the duties of the position are to be assigned. The filling of a position means the appointment of an employe to perform the duties thereof, whether in full or in part. To hold otherwise would permit Carrier to evade the requirements of the Rule by the mere device of assigning less than all the duties thereof. There is no evidence that the parties intended the Rule to be so interpreted.
We have heretofore held that work which is part of a bulletined job had to be assigned according to the unassigned work rule. Awards 5810 (Carter), 6689 (Leiserson), 11604 (Coburn) and 14379 (Wolf).
The other argument, that the work did not belong exclusively to Position No. 51, was discussed in Award 14379. We think the reasoning in that Award is applicable here.
Carrier also argues that because the work did not belong exclusively to Position No. 51, we cannot say it was the work of that position when someone else performs it. The evidence is, however, that the work performed was identified as the work of the position. The Superintendent admitted it. We are not dealing with work which was simultaneously and interchangeably performed by two or more employes, but work which was conceded to be work of the position.