THIRD DIVISION
(Supplemental)
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAIL
ROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6425) that:
EMPLOYES' STATEMENT OF FACTS: Employe L. C. Smith is the regularly assigned occupant of Car Distributor Position 80020 at Tacoma, Washington. Position 80020 is a 5-day position with assigned hours 8 A.M. to 6 P.M., Monday through Friday, with Saturday and Sunday rest days.
Employe R. L. Pierce is the regularly assigned occupant of Swing Position No. 4 at Tacoma, Washington. Swing Position No. 4 is assigned Saturday through Wednesday with Thursday and Friday rest days.
On Thursday and Friday, December 8 and 9, 1966, employe L. S. Cmith was absent account of illness.
Employe Pierce who was the senior employe qualified to fill Position 80020 was available and willing to fill Position 80020 on those dates; however, in lieu of calling employe Pierce to fill the position, the work thereof was performed by Mr. Darrell Failor, the occupant of the position of Special Representative to Superintendent, which position is classified by Carrier as an Official Position. See copy of G. K. Gordon's letter of May 24, 1967, Employes' Exhibit "A".
Claim was filed with Superintendent J. J. Nentl by employe Pierce and was declined by him in his letter to employe Pierce dated January 16, 1967, see Employes' Exhibit "B". Copy of Superintendent Nentl's letter dated
CARRIER'S STATEMENT OF FACTS: The instant claim, for reasons that will be fully explained in "Carrier's Position", has not been properly handled by the Organization in accordance with the provisions of Article V of the Agreement of August 21, 1954, Section 3 First (i) of the Railway Labor Act and/or Circular No. 1 of the Board, therefore, the instant claim is barred.
Employe L . C. Smith is the regularly assigned occupant of Car Distributor Position No. 8002 which is assigned from 8:00 A.M. to 5:00 P.M., with 1 hour out for lunch, Monday through Friday with Saturday and Sunday rest days.
Claimant R. L. Pierce is the regularly assigned occupant of Swing Position No. 4 which is assigned as follows:
On December 8 and 9, 9166, employe Smith was absent account illness and on those two (2) days his position, i.e., Car Distributor Position No. 8002, was left unfilled or, in other words, was blanked.
The instant claim was filed in behalf of claimant Pierce alleging that on December 8 and 9, 1966 "In lieu of calling R. L. Pierce, who was observing his rest days on December 8th and 9th, 1966 and was available and qualified to perform the duties of Car Distributor Position 8002 on those dates, the Carrier assigned the work of the position to a Mr. Darrell Failor, who is presently classified by the Carrier as an official position entitled Special Representative to the Superintendent." However, contrary to the employes allegation, there was no work of Car Distributor Position No. 8002 assigned to Mr. Failor on December 8 and/or 9, 1966.
It is significant that claimant Pierce was called and used to fill Assistant Chief Yard Clerk Position No. 8603 on an overtime basis on December 8, 1966, on which date it is being claimed in the instant case that he should have been called to fill Car Distributor Position No. 8002 on an overtime basis.
OPINION OF BOARD: Employe Smith is the regularly assigned occupant of Car Distributor Position 8002 at Tacoma, Washington, a 5-day position,
hours 8:00 A.M. to 5:00 P.M., Monday through Friday, Saturday and Sunday rest days.
Claimant Pierce is the regularly assigned occupant of Swing Position No. 4 at Tacoma Washington, assigned Saturday through Wednesday, with Thursday and Friday as rest days.
On Thursday and Friday, December 8 and 9, 1966, Mr. Smith was absent account of illness.
Claimant Pierce was the senior employe qualified to fill Position 8002, and he states he was available and willing to fill Position 8002 on those dates; however, in lieu of calling employe Pierce to fill the position, Claimant contends Carrier permitted the work to be performed by Mr. Darrell Failor, occupant of position of Special Representative to Superintendent, which is classified by Carrier as an "Official Position."
This letter was written on the 59th, or next to last day, in which Claimant could present his claim before the proper officer.
Carrier contends claim was presented to the wrong officer and thus claim is barred under Article V, Section 1(a) of the Agreement effective January 1, 1955. That rule states:
Carrier previously notified Organization that employes in Seniority District 45 at Seattle and Tacoma stations, which includes Claimant, should present their claims in the first instance to the Agent.
Claimant says Carrier was responsible for Claimant presenting this claim to the Superintendent instead of the Agent because in another claim involving the same position as we have here, Claimant requested, through Acting General Chairman Hopper, a clarification as to which officer the claim should be presented in the first instance. Mr. Merritt in the office of Carrier's Vice President Amour advised that it should be filed NNvith the Superintendent. This clarification occurred on March 17, 1966.
Subsequently, on July 18, 1966, Amour wrote General Chairman Hopper notifying him that the advice given by Mr. Merritt concerning the filing of claims with the Superintendent applied only to that case. In other words, Mr. Amour said the waiver granted by Mr. Merritt did not apply necessarily to this case before us or to any other eases. The pertinent language of that letter reads:
Therefore, Carrier contends the claim is barred. We do not agree. Carrier's letter of January 16, 1967, written by Superintendent Nentl, acknowledged receipt of the claim and in effect denied the claim on its merits. We feel that Claimant had a right to rely on that January 16 letter. We further believe that Carrier should not later be able to deny the claim on procedural grounds.
Claimant relies on Rules 1, 32 and 33 in support of this claim. These rules are as follows:
"(e) . . . Positions within the scope of this agreement belong to the employes covered thereby and nothing in this agreement shall be construed to permit the removal of positions from the application of these rules, except in the manner provided in Rule 67."
In defense, Carrier states that Position No. 8002 was blanked on December 8-9, 1966, and the work of that position was not assigned to Mr. Failor as alleged by Claimant.
Claimant responds by offering evidence of Local Chairman Gordon that he "heard and saw the work done." Claimant also says that Carrier never refuted the contention that the work was actually "performed" by Failor. Carrier only refutes that work was "assigned" to Failor. Claimant states further that Superintendent Nentl, who would have first hand knowledge concerning the performance of the work, never denied that it was so performed by Failor.
While there can be some doubt and dispute as to the performance by Failor of the work on Position No. 8002, we feel the preponderance of evidence favors Claimant's position.
We further find that Position No. 8002 was therefore removed from the Scope of the Agreement in violation of Rule 1. We believe Claimant did have a prior right to perform the duties of that position during Smith's absence on December 8-9 as provided in Rule 32. We feel Claimant is entitled to payment of eight hours at the time and one-half rate as provided in Rule 33.