NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
CARRIER'S STATEMENT OF FACTS: Section No. 9 is assigned to maintain the territory between MP 270.50 to MP 286 on Carrier's Susquehanna Division. The gang assigned to this section consists of a Leading Maintainer, 2 Maintainers and an Assistant Maintainer, headquarters Elmira, N. Y. At the time of claim, the gang consisted of the following employees:
It is accepted and recognized procedure under the rules agreement to inform the Leading Maintainer when overtime work is necessary. He in turn determines what class and how many other members of the gang are needed and then, in accordance with seniority established in the class, orders the employee of the class or classes needed to work overtime. In case there are 2 positions of the same class in the gang and neither employee working such positions has established seniority in the class, as in the instant case, the procedure followed is to use the employee for overtime work who has most recently been working the longest in the gang. Thus, R. H. Draxler -,vas used to work overtime on the dates of claim as he was awarded a position of Maintainer on March 17, 1967, whereas, D. E. Tarkett, hereinafter referred to as claimant, was not assigned to such a position in the gang until May 24, 1967, or the first day for which claim is made.
Claim was timely instituted on behalf of claimant on June 5, 1967 alleging a violation of Rule 34 of the applicable agreement and handled on appeal. The claim was denied at all levels on the basis that neither Rule 34 nor any other rule of agreement supported same. Copies of pertinent correspondence are attached as Carrier's Exhibit A through K.
OPINION OF BOARD: During the period from May 24, 1967 to Juno 13, 1967 the Carrier assigned one Draxler to perform maintainer's work on an overtime basis. Neither Draxler nor Claimant Tarkett held any seniority as a maintainer but Claimant Tarkett held a higher seniority ranking than Draxler in all classes where both of them held seniority. Organization claims that Carrier violated the Agreement when it used Draxler to perform the overtime to the exclusion of the Claimant.
The agreement between the parties is silent as to how overtime work will be assigned. Carrier says that its inherent power to assign overtime as it sees fit can be limited only by the express terms of the Agreement.
A well recognized majority of the cases accept this proposition. For example see Award 10924 (Hall):
Since Organization must show a contractual limitation upon Carriers right to assign overtime, which Organization is unable to do, we must hold in favor of the Carrier.
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
Apparently, the author of this Award first decided that the Claim must fail and then proceeded to write something, anything, to justify his conclusion because Carrier did not contend that it had "* * * inhernt power to assign overtime as it sees fit * * *". Neither did Carrier contend that such power "* * * can be limited only by the express terms of the Agreement" Furthermore, none of the Awards relied upon have anything to do with the allocation of overtime as between employes of the same class which was the issue in this case.
Since this Award does not relate to the issue presented, it is wholly lacking in validity.
Award 17756, contrary to the statement of the Dissenter, does relate to the issue presented to the Board and properly disposes of it. The issue presented to the Board involved the assignment of overtime work as between employes of the same class in a situation where the Agreement between the parties makes no provision for the assignment of overtime work. Award 17756 correctly held that in the absence of a contractual limitation on Carrier's right to assign overtime the Carrier was free to assign the overtime to either of the employes. The Dissenter apparently seeks to ignore the fact that the Agreement contains no rule pertaining to the allocation of overtime.