THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (CL-5994) that:
EMPLOYES' STATEMENT OF FACTS: The Carrier performs switching and transfer service in the Chicago Switching District with line haul and other switching Carriers, and in addition serves industries along its line of railroads. It maintains yards at South Chicago, 87th Street, West 22nd Street and Clearing, Illinois. Each of the four locations are from two to twenty miles apart. Its largest car handling operation is performed at Clearing Station. It maintains office forces at different locations in Clearing such as, East and West Yard Offices, East and West Sub-offices and Agent's Central Office. Each of the locations are from one to two miles apart and collectively they are known as part of the Clearing facility.
As explained hereinbefore, the Carrier has a perfect and undisputable right and obligation to use the employes who actually performed the work on the claim dates in accordance with the provisions of Rule 19. They were in fact bona fide and permanent employes with established seniority rights, members of the union, with rights to the work prior to that of the claimants.
This information was furnished to the Carrier in the form indicated in Appendix "A." (Choice of one of three individuals for each claim.)
All claims involved in this submission should be denied as they lack completely in merit and support under the rules.
OPINION OF BOARD: In March 1964 Carrier began to use some newly hired employes to fill temporary vacancies and/or positions pending assignment by bulletin, rest day work and other extra work. Brotherhood objected and filed claims and supplementary claims in May, June and August of 1964 which we disposed of in our Award 15801 on the basis of default by Carrier; and, Brotherhood also filed, among other supplementary claims, a claim in a letter from the General Chairman to the Carrier's Agent, Mr. Santoro, on April 12, 1965, which is the claim before us in this case. Paragraph 2 of the Claim as stated in the Brotherhood's Ex Porte Submission purports to be a "continuing claim": . . March 23, 1965 to and including April 11, 1965 and continuing thereafter until corrective measures are applied"; but, as handled on the property by the Brotherhood, by reference there to the claims involved in the case we have disposed of simultaneously with this Award 15801 it was not presented to Carrier as a "continuing claim," and, for the same reasons we set forth in Award 15801, we will deal in this case only with the violations alleged at the times specified in Appendix "A" of the Claim.
Brotherhood claims that without having sought or gotten agreement on establishing an extra board under Rule 24, Carrier failed to follow the injunctions of the Agreement in assigning employes to vacancies, rest day work, and other extra work on a series of occasions from March 23 through April 11, 1965; according to Brotherhood the work belonged to and should have been
We are not in accord, for such seniority is based upon a condition precedent to the right to assign this work to the outsiders. Such seniority could not, in the first instance, be established by using them to perform it.
The aforementioned rules, as well as the agreement and understanding reached in February, 1960, show a consistent intent that only employes with established seniority, such as furloughed employes and regularly assigned employes shall perform the involved work and the unilateral assignment of outsiders for the performance of same is not permissible."
. As indicated by Mr. Santoro in his reply to you on April 29, `1965, the so-called outsiders were all employes of the Clearing Agency and had established seniority under the provision of paragraph (a) of Rule 3 of the working Agreement. Seniority established in this fashion cloaks the employes under the conditions of Rule 1Scope, Rule 10, Temporary Assignment, Rule 11-Short Vacancies and Rule 19-Reducing Forces-Abolishing Positions.
If we deal with Carrier's argument in the most sharply precise way, we find that the sequence of events does not support Carrier's reliance on Rule 3(a): Each "new" employe, at the instant he began to work on his first assignment, had no seniority standing-his seniority began, under Rule 3(a), only when his pay started, and his pay did not start until after he had already performed some of the work of the assignment. The nicety of such hairsplitting, however, should not be necessary for good faith application of the Agreement. The Agreement is clear that, unless modified by special agreement such as the establishment of an extra board under Rule 24, the parties intended that work of the kind here in dispute be assigned to employes who had already acquired seniority when the assignments opened up and then in the order spelled out in the many rules written into the Agreement for the purpose of establishing that order of priorities.
Our recent Award No. 15492 (Zumas) dealt with basically the same issue there presented with a slightly different argument: There Carrier argued that even though a newly hired employe had not, when he started to work, yet acquired any seniority, his "employe status" obligated the Carrier assign the work to him. In finding against the Carrier there, we cited Award 4278 (Robertson) and Dockets 11 and 12 of Special Board of Adjustment No. 564, which dealt with substantially the same question.
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
Claim sustained except that part of paragraph 2 reading "and continuing thereafter until corrective measures are applied."