THIRD DIVISION

(Supplemental)




PARTIES TO DISPUTE:

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 Boston and Maine Railroad, that:

 1. Carrier violated the Agreement between the parties when on the dates shown below it improperly diverted R. G. Poulton from his regular rest day relief position No. 10 to the position of agent and ticket agent at White River Junction, Vermont, when no emergency existed and without proper compensation for such service.

 2. In consequence thereof, Carrier shall now compensate R. G. Poulton, in addition to that already received, as follows:




















EMPLOYES' STATEMENT OF FACTS: Correspondence exchanged between the parties in the property handling of this dispute is reproduced on the pages next following. Said documentation will readily disclose the facts of the case, the respective positions of the parties and arguments in support thereof.







































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The foregoing documentation will disclose that this dispute has been handled in accordance with the requirements of law and rules of procedure of your Board, but failed of settlement.


CARRIER'S STATEMENT OF FACTS: The Agent-Ticket Agent at White River Junction, Vermont, Mr. J. McAlea, was scheduled to take ten (10) days' vacation following his Sunday and Monday rest days, August 25 and 26, 1963. Actually, he commenced his vacation on August 27th and continued through September 7, 1963.


As there was no available relief employe to cover Mr. McAlea's position during his vacation, the position was offered to the senior qualified employe who had expressed an interest in covering this particular assignment. W. L. Roberts, the agent at North Adams, Massachusetts, accepted the vacation relief assignment in place of Mr. MeAlea, and Mr. J. F. Girouard, who was working as an operator at Springfield, Massachusetts, accepted an offer to cover Mr. Roberts' position at North Adams.


Unfortunately, on Sunday, August 25th, Mr. Girouard was suddenly hospitalized and was thereby prevented from covering Mr. Roberts' posi tion at North Adams, and it became necessary to retain Mr. Roberts on his regular position. This left vacant Mr. McAlea's position at White River Junction.


Attempts were made to contact Mr. MeAlea with the intent of deferring his vacation, but he could not be reached. In order to cover the assignment, the claimant, who owned a regular relief position (on two of which days he filled Mr. McAlea's position), was assigned to cover the vacation period.


OPINION OF BOARD: Due to an employe's illness on Sunday, August 25, 1963, the vacation replacement scheduled for Agent and Ticket Agent J. MeAlea at White River Junction, Vermont, was unable to leave his regular assignment. Mr. MeAlea was to start his 10-day vacation on Tuesday, August 27, after his Sunday and Monday rest days.


Carrier alleged that when it learned of the problem on Sunday, it was unable to reach Mr. MeAlea and thus could not direct him to postpone his vacation. It therefore diverted Claimant, who occupied a regular rest day relief position, to Mr. McAlea's position.














If a bona fide emergency existed because diligent efforts to reach Mr. MeAlea by Monday were unavailing, the diversion of Claimant was proper under Article 15. Otherwise, the diversion was improper, and Claimant is entitled to pro-rata pay for his regular position as well as pay for the position to which he was diverted.


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With its ex parts submission Carrier submitted a document to the Board dated April 14, 1964, which had not been disclosed in discussions on the property. It has long been held by this Division that evidence not produced an the property cannot be considered by the Board. (The document described the method by which Carrier sought to reach Mr. McAlea.) Therefore, the only indication of Carrier's efforts is found in such general assertions as "On Sunday, August 25, Chief Dispatcher Dufraine attempted to notify McAlea to work his vacation, but McAlea could not be located." (Carrier's letter to the Organization, November 11, 1963.)


However, on February 10, 1964, the Organization, quoting Mr. McAlea's letter of February 21, 1964, advised Carrier that Mr. McAlea had been at home during his vacation, except for daily trips. Carrier made no reply to this statement.


A perfunctory effort to reach an employe does not establish the existence of an emergency when he is not reached. Carrier has not submitted evidence concerning, for example, the time of day it phoned him. An employs on his rest day is more likely to be found at home in. the evening or at night, but the Board is given no clue to when Carrier called.


It is also clear that only on Sunday was there any attempt to reach Mr. McAlea. But there was no emergency on Sunday, when Claimant was diverted, since Claimant filled Mr. McAlea's position on both Sunday and Monday as part of his regular relief assignment. Claimant was available to Carrier and could have been notified of his diversion on Monday, as well, if Carrier had used that day also to try to locate Mr. McAlea.


Claimant is not required to prove that an emergency did not exist. The burden is on Carrier to prove that there was an emergency, because it bad made every reasonable, diligent attempt to reach Mr. MeAlea by Monday, and could not. Carrier has not sustained its burden, according to the evidence.


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










Dated at Chicago, Illinois, this 6th day of March 1968.
 Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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