TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Colorado and Southern Railway that:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement by and between the parties to this dispute, effective October 1, 1948, including changes and agreed-to interpretations as of the date of reissue, January 1, 1955; with rates of pay effective September 3, 1954, and as otherwise amended.
S. F. Pope, claimant in this dispute, was, prior to August 31, 1959, the regularly assigned occupant of the first shift telegrapher's position at Longmont, Colorado. As such, his assigned hours were 8:00 A. M. to 4:00 P. M. He had a work week of Monday through Friday, with Saturday and Sunday rest days.
In accordance with the provisions of the national Vacation Agreement, the claimant here involved was assigned a vacation period from August 10 through August 30, the latter including the Saturdays and Sundays of the vacation period. He took the vacation as assigned, and was scheduled to protect his first shift assignment at Longmont, commencing on Monday, August 31, 1959.
On August 25, 1959, while the claimant was still on his vacation, though actually not available to the Carrier, the Carrier's Chief Train Dispatcher notified him that effective August 31, 19'59, the position of first shift telegrapher at Longmont would be discontinued. At this same time, the Carrier also solicited from the claimant "whom and where he wished to displace."
weekly rest days of the second trick, 4:00 P. M. to midnight, assignment at Longmont were Sunday, August 30, and Monday, August 31, 1959. Relief pGsi tion No. 5 filled the second trick position on the assigned rest days thereof. Consequently, the claimant assumed the second trick position on September 1, 1959, the first working day of the second trick position after the first trick position was discontinued on August 31. The occupant of Relief position No. 5 worked the second trick position on August 31, strictly in accordance with the assigned work days attaching to Relief position No. 5.
The claimant did not displace the occupant of Relief position No. 5, even though the occupant of Relief position No. 5 was junior to the claimant and could have properly been so displaced had the claimant actually desired to work on Monday, August 31, instead the claimant, of his own volition, displaced the occupant of the second trick Telegrapher position, hours 4:00 P. M. to midnight work days Tuesday through Saturday, assigned weekly rest days Sunday and Monday. August 31, 1959, the date of the instant claim, was a Monday, thus was one of the assigned rest days of the second trick position. Therefore, it was a work day of Relief position No. 5 and not a work day of the second trick position upon which the claimant chose to displace.
On October 5, 1959, the first trick position at Longmont was restored, retaining the same hours, the same work week, and the same rest days as prior to August 31, 1959. The claimant elected to return thereto in accordance with the provisions of Telegraphers' Rule 20. The claimant worked the second trick position five days, the work week starting Tuesday, September 29, 1959, rested one day, Sunday, October 4, 1959, then re-assumed the first trick position and the conditions thereof on Monday, October 5, 1959, working thereon October 5, 6, 7, 8 and 9, 1959, thus, in effect, gaining one day.
OPINION OF BOARD: On August 25, 1959, Claimant S. F. Pope was notified that his position as first shift telegrapher at Longmont with Saturday and Sunday rest days would be discontinued effective August 31, 1959. Claimant indicated his desire to exercise his seniority on the second shift telegrapher's position at Longmont, with Sunday and Monday rest days. Inasmuch as Monday, August 31, 1959, was a rest day on the position on which Claimant displaced, he lost one calendar day in transferring and hereby seeks recovery of one day's wages.
Here, the Organization argues, the Claimant took a job to which entitled by seniority, and was prepared to work on it on August 31st. He should not be penalized for the fact that this was a rest day, and is therefore, entitled to reimbursement for earnings lost.
The Carrier asserts that at the time of transferring, the Claimant had his choice of positions and having chosen one with the knowledge that Monday was its rest day, can not now reasonably claim that the time lost was beyond his control.
The essential question in this case is whether or not the time lost on Monday, August 31, 1959 was lost "of the employe's own accord."
We find that it was not. Claimant was removed from a position on August 31, 1959 by conditions beyond his control. He had a choice of positions available to him by virtue of his seniority, it is true. He took one of these positions as was his entitlement under the parties' agreement. That that position had a rest day on the first day he was to fill it was not a situation of the employe's own making, but merely a facet of the position itself.
To hold as the Carrier urges would mean that to avoid the lost day on August 31, the Claimant would have been restricted in his choice of positions to those working that day. We are unable to conclude that the agreement imposes such a limitation on choice of position at the time of transfer. Claimant began actually working on his new position on September 1, 1959. He should be paid for the preceding day when, due to the transfer, he was unable to work.
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