CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5926) that:
EMPLOYES' STATEMENT OF FACTS: Prior to April 12, 1965, employe R. F. Leif was occupying regularly assigned Position No. 6505, Assistant Time Revisor and Statistician, at Aberdeen, South Dakota. Position 6505 was assigned work days Tuesday through Saturday with rest days of Sunday and Monday.
On April 1, 1965, Position 6505 was rebulletined in Bulletin No. 28 account "Change in days of rest to Saturday and Sunday." Copy of Bulletin No. 28 is submitted as Employes' Exhibit A.
As will be noted, Bulletin No. 28 advised that applications for Positions 6505 would be received up to and including Wednesday, April 7, 1965. Thus, the Monday through Friday, with Saturday and Sunday rest days, assignment of Position 6505 could not properly become effective until Monday, April 12, 1965.
Claimant Leif was the successful applicant and remained on Position 6505; however, he was permitted to work only four days, namely, Tuesday, Wednesday, Thursday and Friday, April 6, 7, 8 and 9 respectively, in his work week which began Tuesday, April 6th, and was required to observe the new rest days prior to the first day on which the new assignment was bulletined to work.
Claim for one day's pay, Saturday, April 10, 1965, at the rate of Position 6505 was filed with Superintendent F. J. Kuklinski by claimant Leif account
of his work week beginning April 6, 1965 being reduced to four days as result of Carrier changing his rest days and requiring him to observe the new rest days before the new work week began, thereby depriving him of the right and opportunity to perform service on Saturday, April 10th, the fifth day of his work week.
The claim was denied by Superintendent Kuklinski in his letter to claimant Leif on April 16, 1965, copy of which is submitted as Employes' Exhibit B.
Claim was appealed to Mr. S. W. Amour, Assistant to Vice President, under date of May 25, 1965 and was declined by him in his letter of June 15, 1965.
Discussion of the claim during conference on September 23, 1965 and on November 15, 1965 produced no settlement.
CARRIER'S STATEMENT OF FACTS: Prior to April 1, 1965, claimant R. F. Leif was the regularly assigned occupant of Assistant Time Revisor and Statistician Position No. 6505 at Aberdeen, South Dakota with regularly assigned rest days of Sunday and Monday.
On April 1, 1965, Superintendent F. J. Kuklinski, in accordance with Rule 14(b) which specifically provides that if either or both assigned rest days of a position are changed, the position will be considered a new one and will be bulletined in accordance with Rule 9, issued Bulletin No. 28 account changing the assigned rest days of Position 6505 from Sunday and Monday to Saturday and Sunday. Copy of Bulletin No. 28 is attached hereto as Carrier's Exhibit A.
As a result of being the senior qualified applicant for new Position No. 6505, claimant Leif was assigned thereto by Bulletin No. 29 dated April 8, 1965. Copy of Bulletin No. 29 is attached hereto as Carrier's Exhibit B.
Under schedule rules and a recognized past practice of long standing on this property, claimant Leif was not entitled to and did not work on the date of the instant claim, i.e., April 10, 1965, nor was he or is he entitled to payment for that date under schedule rules and said recognized past practice of long standing on this property.
OPINION OF BOARD: Prior to April 12, 1965, Claimant occupied regularly assigned Position Number 6505, Assistant Time Revisor and Statistician, at Aberdeen, South Dakota. The assigned rest days of this position were Sunday and Monday.
On April 1, 1965 the position in question was rebulletined account changing the assigned rest days of the position to Saturday and Sunday. The position was rebulletined under Rule 14 (b) of the agreement.
Claimant was the successful applicant and remained on Position 6505. The bullletin advised that applications for the position would be accepted through Wednesday, April 7, 1965.
We do not believe that the new hours of the position could become effective until the beginning of the new work week on Monday, April 12, 1965.
"RULE 14.
CHANGING ASSIGNED STARTING TIME,
DAYS OF ASSIGNMENT OR
DAY OF REST
Where a position is rebulletined, by reason of changes prescribed in the above paragraph the employe permanently assigned to the position at the time it is rebulletined will have the same privileges as though his position were abolished, except that if he desires the rebulletined position, he must make application for such position at the time bulletined and failing to do so, will not be permitted to exercise seniority to that position on the basis of having lost his former assignment.
"RULE 15.
BASIS OF PAY
There is hereby established for all employes, except those occupying positions listed in Rule 1 (b), a work week of forty (40) hours, consisting of five days of eight (8) hours each, with two consecutive days off in each seven; the work weeks may be staggered in accordance with the Carrier's operational requirements; so far as prac-
The rules are clear and unambiguous. Claimant had the right to work a full 40 hour week under the old assignment. The new assignment began on Monday, April 12, 1965. The change could not take place until the new work week began.
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
CARRIER MEMBERS' DISSENT TO AWARD 15530,
DOCKET CL-16074 (Referee Harr)
The claim is sustained on the basis of a conclusion that "the new assignment began Monday, April 12, 1965." This conclusion is contrary to the admitted facts and is not supported by any reason or authority.
This new position was advertised by bulletin dated April 1, 1965, the bulletin ended on April 7, and Claimant was assigned to the position as a successful bidder by bulletin dated April 8, 1965. From the time the position was bulletined, Claimant had "the same privileges as though his position were abolished" and the position to which he was thus assigned was a "new one." In the absence of restrictions appearing in the agreement, it was Carrier's prerogative to establish the effective date of the new position and to fill the new position beginning on any day of the work week thereof that Carrier might elect. Award 7918 (Shugrue.)
Obviously, this rule of law applies to cases involving changes in rest days as well as to other cases-see Awards 6211 (Shake), 7918 (Shugrue), 10755 (McGrath), 10865 (Kramer), 13621 (Mesigh), among others.
In this case we not only have the absence of a role, but we have clear evidence of prior recognition by the Board and this petitioning Organization that an employe cannot fictitiously extend his old work week beyond the termination of his old position and the creation of a new position in lieu thereof.
The crux of the sustaining Awards cited in this Award as support therefore is a finding that the change in rest days did not terminate the old assignment and create a new one in its place, but rather that the old assignment continued and hence the old work week thereof continued in existence until commencement of a new work week on that same position. Such Awards are totally irrelevant to this claim, for here the controlling agreement provides that upon change of rest days "the position will be considered a new one and will be bulletined in accordance with Rule 9." This new position was bulletined and the Employes frankly concede in their rebuttal that the bulletin was in accordance with Rule 9.
In Award 10865 the Referee held that the old position was terminated and a new position created with the effective date of the change in rest days,. and hence, the employe who had held the old position "moved from one assignment to another" when the change was effective. The rule there involved merely gave the occupant of the position a right to displace, a right which he did not exercise. The Employes did not deny that the theory of the Award was entirely correct. They challenged the decision on the basis that under the particular rule there was no new position and the Claimant did not have the same privileges as an employe whose position had been abolished. Their Dissent includes this: