NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
CARRIER'S STATEMENT OF FACTS: The claimant in this dispute, Mr. E. C. Crowell, was a spare operator and on June 14, 1965, he was assigned to the agent's position at Worcester, Massachusetts. On the same date, spare Operator A. J. Jackson was assigned to cover as agent-operator at Guilford, Connecticut.
On June 16, 1965, it was brought to the attention of the chief train dispatcher that Mr. Jackson was not selling tickets at Guilford due to the fact that he had not been requalified on this work. Since Mr. Jackson was not qualified in the selling of tickets, he was assigned to Worcester where a clerk performs the ticket work, and Mr. Crowell was assigned to Guilford as he was properly qualified in the handling of ticket sales. This change was made on June 17, 1965.
Claim was instituted on behalf of Mr. Crowell for $173.04 representing travel time payments erroneously made and later deducted from his pay. The claim was presented by the claimant on the theory that he was diverted to Guilford under the provisions of Article 29 of the Agreement dated September 1, 1949.
Attached in exhibit form is a copy of the pertinent correspondence as follows:
Claim was denied on the property on the basis that there was no diversion under Article 29 as this rule does not apply to other than regularly assigned employes and therefore payment of travel time to a spare employe is not required.
Copy of the Agreement dated September 1, 1949, as amended, between the parties is on file with this Board and is, by reference, made a part of this submission.
OPINION OF BOARD: The facts in the instant case are not in dispute, but their interpretation and that of the existing Agreement are squarely in conflict.
Claimant Crowell, an extra employee, was notified to protect an agent vacancy at Worcester, Massachusetts, on June 12, 1965. He arrived on June 11 to familiarize himself with the position and did hold that position through June 16, when at Carrier's direction he was sent to Guilford, Massachusetts, where on June 17 he commenced to protect an agent vacancy there. Extra employee Jackson, not a claimant here but involved in the fact situation from which this controversy arose, had been assigned as of June 14 to protect an agent vacancy at Guilford. Carrier ascertained that Jackson was not qualified to perform these duties at Guilford, and consequently Carrier effected an exchange of these extra employees, sending Claimant Crowell to Guilford and Mr. Jackson to Worcester. As it developed, Jackson was senior to the Claimant and the position at Worcester carried a higher rate of pay. It is not clear as to why Carrier had not originally assigned Jackson to Worcester.
Two articles of the existing Agreement have been cited by both Carrier and Employes, and are here set out below:
Claimant asserts that, for whatever reason, he was assigned by Carrier to Worcester and under Article 29 "stood in the shoes" of the regularly assigned agent and was therefore entitled to all the protection, rights and emoluments accruing thereunder. When he was replaced by Jackson, Claimant asserts that Article 13 was violated since he was displaced from an unfinished assignment, and that he is due the travel allowance of a regular employee as stipulated in Article 29.
Carrier maintains that it is within their managerial discretion to rectify mistakes and to assign employees and reassign them in order to best meet the requirements of service. Carrier further claims there is no rule which prohibits it from transferring an extra employee from a temporary assignment which he is not qualified to fill. Carrier also denies that Claimant was a regular employee, and that therefore he is not protected by Article 29.
Although there is a plethora of awards dealing with the differentiation of "extra" from "regular" employees, there is a dearth of guidance for
application to the present fact situation and the specific Agreement to which we must look. This Opinion limits itself to these specific facts and the articles before us.
Claimant responded to Carrier's directive to go to Worcester. He had reason to believe that that was where he was to stay for a period certain. He made his plans and acted accordingly. Through Carrier's own mistake, Extra Employee Jackson was evidently miscast in his position at Guilford. This Board does not deny Carrier's authority to rectify its mistakes and take whatever personnel action necessary to protect its service, but we do not believe that Claimant should bear the price of this mistake. For these purposes, we find that Claimant had acted in good faith in proceeding to Worcester and was due the protection of Article 29 as at least a "constructive" regular employee, standing in the shoes of the regular agent who would have been so protected against Carrier's action in this case. In this posture. Claimant can rightfully claim a violation of Article 13 and his travel allowance under Article 29.
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
CARRIER MEMBERS' DISSENT TO AWARD 17172, DOCKET
TE-16543
Initially we confess that we are at a loss to understand the first paragraph of the Opinion which reads as follows:
To our mind, facts are facts and require no interpretation. How the facts or the interpretation of such facts, if such is possible, can be in conflict with the Agreement between the parties is beyond our comprehension. We hope
the Referee will enlighten us in a reply to this dissent. As we understand the situation, what is required is an application of the rules that have been agreed upon by the parties to the facts of the dispute. That has not been done in Award 17472.
The Referee's recitation of the facts in the second paragraph of the Opinion leads one to believe that he understood at least one essential fact by his statement reading:
But this essential fact was overlooked or purposely ignored in the remainder of the Opinion.
We are in disagreement with the Referee that a "plethora" of awards exist dealing with the differentiation of "extra" from "regular" employees. There are many such awards and a number of them were furnished the Referee for his consideration, but no "plethora" exists. Neither are we in agreement that there is a dearth of guidance for application of the fact situation and rules involved in this dispute. The awards furnished the Referee make it clear that there are but two classes of active employes: viz; "extra" and "regular", and this is also clear from the Agreement. A "regular" employe would have been entitled to the travel allowance claimed in this dispute and also for any loss of compensation but which was not claimed in this instance. An "extra" employe was not entitled to such payments. Included in the awards furnished the Referee was Award 17432 of this Division involving the same parties, the same Agreement, as well as Article 29 thereof. Upon being furnished with copy of that award the Referee acknowledged it with a short derisive laugh and a facetious remark to the effect that he was happy to be enlightened by Referee Devine's award.
It is apparent the Referee recognized that there are but two classes of active employes and that Claimant, an extra employe, was not entitled under the Articles of the Agreement to the travel allowance claimed. However, in an effort to find some kind of ground on which to sustain the claim, for reasons not disclosed, he concocts out of the figment of his imagination a new designation of "constructive regular employe"; a designation that does not exist in the Agreement, nor anywhere else.
By holding that the claimant is a "constructive regular employe" this Board has, by interpretation, added a licw designation of active employe to the Agreement between the parties and in doing so has exceeded its jurisdiction. Award 17472 is therefore invalid and of no force or effect.