NATIONAL RAILROAD ADJUSTMENT BOARD
John J. McGovern, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-6341) that:
(a) The Southern Pacific Company violated terms of the
current Clerks' Agreement when it refused to allow Hattie C. Balsz
to occupy Engine Crew Dispatcher Position No. 102 effective 11:59
P. M., Sunday, November 4, 1962;
(b) The Southern Pacific Company shall now be required to
compensate Hattie C. Balsz as follows:
1. Eight (8) hours' pay at the pro rata rate of Position No. 102 each date November 4, 5, 6, 7, 8,
11, 12, 13, 14, 15, 1962;
2. The difference between pro rata and the time and
one-half rate for all time spent on other assignments on those dates; and,
3. In addition, a day's pay at the applicable pro rata
rate of Chief Engine Crew Dispatcher ($22.1424
per day) for November 4, 1962.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement bearing effective date October 1, 1940, reprinted May 2, 1955, including subsequent revisions (hereinafter referred to as the Agreement), between the Southern Pacific Company (Pacific Lines) (hereinafter referred
to as the Carrier), and its employes represented by the Brotherhood of
Railway, Airline and Steamship Clerks, Freight Handlers, Express and
Station Employes (hereinafter referred to as the Employes), which Agree.
ment is on file with this Board and by reference thereto is hereby made a part
of this dispute.
On November 4 and 5, 1962, Clerk Sproul (on Position No. 102) and
Clerk Markham (on Position No. 134-Relief No. 22), performed service as
Engine Crew Dispatchers during the same hours, i.e., 11:59 P. M. to 7:59 A. M.
3. By letter dated November 21, 1962 (Carrier's Exhibit A), Petitioner's
Division Chairman submitted claim to Carrier's Division Superintendent at
Los Angeles in behalf of Claimant for the following compensation: (Listed
as Item (b) of Employes' Statement of Claim):
"1. Eight (8) hours' pay at the pro rata rate of Position
No. 102 each date, November 4, 5, 6, 7, 8, 11, 12,
13, 14, 15, 1962;
2. The difference between pro rata and the time and onehalf rate for all time spent on other assignments on
those dates; and,
3. In addition, a day's pay at the applicable pro rata rate
of Chief Engine Crew Dispatcher ($22.1424 per day)
for November 4, 1962."
By letter dated January 7, 1963 (Carrier's Exhibit B), Carrier's Division Superintendent denied the claim. By letter dated January 8, 1963
(Carrier's Exhibit C), Petitioner's Division Chairman advised that the
claim would be appealed.
By letter dated January 26, 1963 (Carrier's Exhibit D), Petitioner's
General Chairman appealed the claim to Carrier's Assistant Manager of
Personnel, and by letter dated March 9, 1965 (Carrier's Exhibit E), the
latter denied the claim.
(Exhibits not reproduced.)
OPINION OF BOARD:
The regularly assigned incumbent of Position
No. 102, Engine Crew Dispatcher, was relieved for a ten day vacation
commencing 11:59 P. M., Sunday, November 4, 1962 and ending Thursday,
November 15, 1962. On Saturday, November 3, 1962, Claimant filed a written request to fill the above position beginning at 11:59 P. M., November 4,
1962. At that time, she was regularly assigned to Relief Position No. 20.
While she was the senior regularly assigned clerk to file such a request,
she was not considered "available" to fill that position on Sunday, November 4, 1962, since her regular assignment required her to fill another position on that same date. She protested against the rejection of her request,
whereupon, the Chief Clerk granted her permission to be absent from her
regular assignment on Sunday, November 4, and was told to work Position
102 in compliance with her request.
At approximately 10:00 A. M. on November 4, Claimant was advised
that Clerk Sproul had been displaced from his regular assignment and had
elected to revert to the unassigned list. The Chief Clerk stated that since
Sproul was now available, he, as an unassigned employe, would be utilized on Position 102 at 11:59 P. M., November 4. He told Claimant to
continue with her regular relief assignment on November 5. Hence, Claimant performed no service on her own or any other position on November 4,
1962, thus losing a day's compensation on that date, which was one of her
regular workdays. She performed service on her regular assignment thereafter, working eight (8) hours each date, at the applicable straight time
rate of pay of the various positions in her relief assignment.
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The Petitioner alleges a violation of Rule 34 (c) of the Agreement
which reads:
"RULE 34. SHORT VACANCIES
(c) If a qualified unassigned employe is not available, position
will be filled by the senior assigned employe who makes written
application therefore and is qualified for such vacancy, and when
assigned shall take all of the conditions of the position; if a qualified unassigned employe thereafter becomes available he may not
displace the regular employe filling the temporary vacancy unless
he is senior to such regular employe.
"NOTE 1. A vacancy under paragraph (c) of this rule will not
be considered a vacancy available to an assigned employe unless
it is known that the vacancy will exist
for more than two (2) days.
NOTE 2. In the event a vacancy of known duration of more
than two (2) days is filled by a regular assigned
employe and a senior qualified regular assigned employe desires to displace the junior regular assigned
employe working the position, he may, upon giving
at least four (4) hours' notice, do so providing such
displacement notice is made within fifty-six (56)
hours from the starting time of the position after
vacancy is first filled and the employe making the
displacement shall be required to fill the vacancy at
the beginning of the next tour of duty on the vacancy."
Petitioner avers that paragraph (c) was violated, since Claimant had
made the written application, was qualified, and at the time she was initially
assigned, there were no qualified unassigned employes. Carrier, however, defends on the basis that Rule 34(b) of the Agreement must be read in conjunction with paragraph (c) and that once Sproul became available, paragraph (b) bcame operational, thus rendering Claimant's application invalid.
Rule 34(b) provides:
"Rule 34(b). New positions or vacancies of thirty (30) calendar days or less duration shall be filled, whenever possible, by the
senior qualified unassigned employe who is available and who has
not performed eight (8) hours' work on a calendar day; an unassigned employe will not be considered as being available to perform
further work on vacancies after having performed five (5) days or
forty (40) hours of work at the straight time rate in a work week
beginning with Monday, except when such unassigned employe secures an assigned position under the provisions of Rule 33 or returns
to the extra list from a position to which he was assigned, in which
event he shall be compensated as provided for in Rule 20, Sections
(b) and (c)."
Reading both sections, it is clear that a qualified, available, unassigned
employe has preference to fill these short vacancies. This is an incontrovertible fact, gleaned from even a cursory reading of Rules 34(b) and (c).
There are, however, two questions to which we must address ourselves.
One is the fourteen (14) hour notice given to Claimant advising her that
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the assignment was to be made to Sproul.
The other is whether she, for the
purpose of the Contract, did in fact have the assignment once she was told
by the Chief Clerk to work Position 102.
Upon close scrutiny of the aforementioned sections, we cannot find any
time limitation imposed on Carrier. Presumably, Carrier could have notified
Claimant one hour before, and this, although admittedly inequitable, would
still not have constituted a contract violation. Had the contracting parties
intended a time limitation, they could easily have included it in the language
of the rule. We make passing reference to the fact that Note 2 of paragraph
(c) requires a four (4) hour notice under certain specified conditions. These
are not applicable to this case, but are merely mentioned to illustrate that
when the parties intended a time limitation under certain conditions, they so
specified one.
Further, she never did fill the position in question. Hence, she never did
have the assignment, because this term implicitly connotes the assumption of,
and performance of the duties and responsibilities of the position.
We agree with Carrier that in the circumstances of this case, paragraph
(b) did become operational and effectively pre-empted the handling of this
dispute. Sproul was a qualified unassigned employe, and was available; in connection therewith, we call attention to the first phrase of paragraph (c).
"If a qualified unassigned employe is not available." It is clear that the contracting parties intended to give him a preferential right to such positions.
Claimant assumed the risk of being displaced. She did so of her own volition,
to be sure, with the concurrence and approval of the Carrier. But, we cannot
find wherein Carrier has violated this Agreement and we must, accordingly,
deny the claim.
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 ADJUJ1'MENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 25th day of March, 1969.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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