NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
1. Carrier improperly and in violation of Agreement, effective February 23, 1962, diverted Mr. U. J. Drouin from his regular assigned relief position as towerman-telegrapher, P&L Junction Tower, to first trick agent-telegrapher position at P&L Junction Freight Station and failed to compensate him in accordance with Agreement rules.
2. As a result of the violation set out in Item No. 1 above, Carrier shall pay U. J. Drouin at the pro rata hourly rate of his regular relief position for all actual time each day Carrier required that he suspend work during his regular hours at P&L Junction Tower, beginning February 23, 1962, and at time and one-half the hourly rate of the P&L Junction agent-telegrapher position for all time each day, beginning February 23, 1962 Carrier required that U. J. Drouin work on the P&L Junction agent-telegrapher position outside the assigned hours of his regular relief position and, in addition thereto, $1.00 expense allowance as provided in Rule 6(a) to cover each day diverted.
The Agent-Telegrapher (Samuel Cully) upon completion of his tour of duty Wednesday, February 21, 1962, submitted resignation by telegram to be effective immediately. This resignation was received by the System Supervisor of Operations the following morning, Thursday, February 22, 1962, and as there were no qualified Agent-Telegraphers on the extra list, the first trick Towerman-Telegrapher (C. Burbank) at P&L Junction, observing one of his two rest days, was used to protect the Agent-Telegrapher's position for that one day only.
Starting Friday, February 23, 1962, there continued to be no qualified Agent-Telegraphers on the extra list, the claimant, being a qualified Agent regularly assigned as Relief Towerman-Telegrapher at P&L Junction, was withheld from his assignment to protect the Agent-Telegrapher's position, the extra list employe first out who had the qualifications as TowermanTelegrapher but not as an Agent-Telegrapher was then used to fill claimant's vacancy. The claimant was used to protect the Agent-Telegrapher vacancy until a regular Agent-Telegrapher was assigned and assumed the duties of that position May 25, 1962.
The claim as shown in the Statement of Claim "First" was appealed to the Chief of Personnel May 12, 1962. Conference was held May 24, 1962, and the claim was discussed with ORT representatives Vice President Kinkaid and General Chairman North. Verbal denial was given and understanding had that decision would be rendered in writing following completion of investigation and reconsideration of the new and additional information presented by the General Chairman . This was completed on July 16, 1962, and by letter of that date, the General Chairman was advised the decision given him at conference May 24, 1962 "remains the same."
As the claims in parts one and two are without merit and unsupported by fact or rule they were denied.
OPINION OF BOARD: Claimant's Second Claim is that the Carrier violated the provisions of Article V of the August 21, 1954 National Agreement, which article provides in pertinent part:
This Board finds that the Carrier did violate the above cited provisions of Article V. General Chairman North's letter of May 12, 1962 to Mr. C. L. Wagner, Chief of Personnel of the Carrier, was on appeal to a higher officer of Carrier, within the meaning of Article V(c). The Carrier had 60 days within which to disallow the claim and (1) notify the appellant, (2) in writing, (3) together with the reasons for the disallowance. Failure to meet these
affirmative requirements within the 60-day period would automatically invoke the following provision of Article V(a):
The Carrier's written disallowance of the claim is dated July 16, and does not meet the 60-day limitation.
Carrier contended it verbally disallowed the claim at a May 24 conference with General Chairman North. A verbal disallowance is clearly insufficient, since Article V requires a written disallowance, supported by the reasons for the disallowance.
Carrier finally contends that at the May 24 conference it undertook, at General Chairman North's request, to investigate certain matter and reconsider its verbal disallowance of the claim. Carrier's position is either that this tolled the running of the 60-day period or that the claimant is estopped from invoking the benefits of the 60-day period. This position is untenable, for the Agreement specifically provides in Article V(b) the method for extending the 60-day period:
This Board finds no evidence of any agreement to extend the 60-day period for the Carrier's decision. The claim "shall be allowed as presented."
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