NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Nathan Engelstein, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
GULF, MOBILE AND OHIO RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement when it failed to bulletin
and fill a vacancy in the position of Painter (First Class Mechanic)
which occurred in Paint Spray Gang No. 401 when Mr. D. O. Rush
vacated said position for the purpose of "temporarily working on the
mowing machine." (Carrier's file E-41-125.)
(2) Mr. Wayne Killingsworth be allowed the difference between
the Painter's rate and what he received at the Painter Helper's rate
for each work day of the period extending from the date the Painter's
position was first vacated by Mr. Rush until the violation has been
corrected and/or discontinued.
EMPLOYES' STATEMENT OF FACTS: The Carrier issued a bulletin
reading:
"GULF, MOBILE AND OHIO RAILROAD COMPANY
Southern Region
Mobile, Alabama
August 12, 1963
Bulletin No. 247'5
B&B Department
All Concerned:
Due to R. O. Thomas being off account of injury bids will be
received via mail at 104 St. Francis Street, Mobile, Alabama by the
undersigned up to and including August 23, 1963 for the temporary
position of -
Painter (First Class Mechanic) Paint Spray Gang No. 401
with A. Wallace.
Only those applicants who are qualified painters will be considered for assignment to this position.
The Agreement in effect between the two parties to this dispute dated
April 28, 1950, together with supplements, amendments and interpretations
thereto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS:
This claim involves the construction of Rule 2(h) of the Agreement between the parties effective April 28, 1950.
For ready reference, the rule reads:
"(h) Seniority of Paint Spray Gang Employes will extend over
the Southern Region. Employes working on this gang shall have their
seniority rights restricted to such gang until the job or jobs are
abolished and will not be subject to displacement. This gang shall
consist of not more than 1 Foreman, 4 Painters (First Class B&B
Mechanics), 1 Helper (Second Class Mechanic) and 1 Laborer (B&B).
The use of a Paint Spray Gang on a particular district is not to
be construed as establishing any preferential rights of the employes
in the Paint Spray Gang to the exclusive painting or repairing of
bridges, buildings and other structures. Nothing herein is to be construed in such a way as to restrict the requirements that employes in
Paint Spray Gangs or other Bridge and Building employes make repairs to bridges, buildings, or other structures incidental to the painting thereof, or to restrict the required method of painting.
When a vacancy occurs on this gang it will be bulletined and the
senior available qualified B&B employe on the Southern Region will
be assigned to such vacancy."
Particular attention is called to the second sentence, which states that the
paint gang shall consist of not more than 1 foreman, 4 painters, 1 helper and
1 laborer.
The petitioners take the position that there "must be 4 painters in the
Paint Spray Gang at all times" and presents a claim that because there were
not 4 painters in the gang at all times, the helper must be paid at the painter's
rate, or as though he were a painter, thus making the consist of the gang, 1
foreman, 4 painters, 1 helper and 1 laborer. The Carrier takes the position that
the rule provides for a maximum of 4 painters, however, this does not mean a
minimum of 4 painters.
OPINION OF BOARD:
Mr. D. 0. Rush, a Painter assigned to Paint
Spray Gang No. 401 temporarily vacated his position to work on a mowing
machine. Carrier did not fill this vacancy.
Brotherhood, in behalf of Mr. Wayne Killingsworth, a Painter Helper in
Gang No. 401 claims that Carrier violated the Agreement when it failed to
bulletin and fill the Painter position vacated by Mr. Rush. It relies on Rule
2 (h) to support its position.
Carrier denies violation of the Agreement and asserts that the Rule does
not require it to fill every vacancy. It points out that the Rule establishes a
maximum number of four painters in a gang, rather than a minimum number.
it also states that Brotherhood in reading the last paragraph of Rule 2 (h)
without reference to the first paragraph changes the Rule to mean that Carrier
must have a gang of four painters at all times.
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The central question in this dispute is whether Rule 2 (h) obligated Carrier
to bulletin and fill the position vacated by Mr. Rush. This Rule reads as follows:
"(h) Seniority of Paint Spray Gang Employes will extend over
the Southern Region. Employes working on this gang shall have their
seniority rights restricted to such gang until the job or jobs are
abolished and will not be subject to displacement. This gang shall
consist of not more than 1 Foreman, 4 Painters (First Class B&B
Mechanics), 1 Helper (Second Class Mechanic) and 1 Laborer (B&B).
The use of a Paint Spray Gang on a particular district is not to
be construed as establishing any preferential rights of the employes
in the Paint Spray Gang to the exclusive painting or repairing of
bridges, buildings and other structures. Nothing herein is to be construed in such a way as to restrict the requirements that employes in
Paint Spray Gangs or other Bridge and Building employes make
repairs to bridges, buildings, or other structures incidental to the
painting thereof, or to restrict the required method of painting.
When a vacancy occurs on this gang it will be bulletined and the
Senior available qualified B&B employe on the Southern Region will
be assigned to such vacancy."
The last paragraph of this Rule establishes a procedure for bulletining a
position when a vacancy occurs. This provision becomes applicable after Carrier
exercises its managerial prerogative to fill a vacancy.
Our findings that Rule 2 (h) does not preclude Carrier from blanking a
position are consistent with a considerable number of awards, including Award
Nos, 6889, 12358 and 14252.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of November 1967.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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