NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION
EMPLOYES
OPINION OF BOARD: Upon consideration of testimony presented, exhibits introduced and the collective bargaining agreement, it is determined that the Carrier did not violate Rules 1, 2, 3, 6, 8, 9, 13, 14, 21 (h), 26 (f), 46 and related rules for the Clerks' Agreement.
We agree that Mr. Hawthorne and Mr. Murphy, by virtue of their seniority rights, established with the provisions of Rule 8, were assigned to the Chief Timechecker and Timechecker positions respectively. They held
contractual right to occupy these positions and to perform the work that was assigned and attached thereto, until such time as they vacated those positions in accordance with the rules of the Clerks' Agreement.
In the instant case, there was an increase in the volume of timekeeping work of compiling payrolls. Mrs. Blalock and Mrs. O'Laughlin were instructed to temporarily assist in the timekeeping department and were paid the higher rates of pay.
We believe the agreement allows the lending of a hand by one employe to another under the circumstances present here and that the temporary occurrence on the dates involved was in complete harmony with the provisions of Rule 31 (c). If the move had been dictated by a desire to prevent the Timechecker from absorbing overtime the claim would be compensable. It was not.
Under all the facts and circumstances herein, we cannot find that the Claimants have sustained the burden of proof required to establish that the Carrier required Mrs. Blalock and Mrs. O'Laughlin to suspend work on the Stenographer position in order to absorb overtime, to perform the work of posting time, which was a major part of the normal and regular duties of the Chief Timechecker and Timechecker.
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
LABOR MEMBER'S DISSENT TO AWARD NO. 17912
(DOCKET CL-18333)
The Referee readily admits in the Award (2nd paragraph of Opinion) that:
Then he reverses himself and holds that these two employes did not have contractual rights to perform the work that was assigned and attached to positions, this notwithstanding the fact they had not vacated their positions.
The next paragraph (paragraph 3) states "there was an increase in the volume of timekeeping work of compiling payrolls". There is no proof of record that there was an "increase in the volume of timekeeping work of compiling payrolls". That allegation is found in the letter the top Carrier officer wrote to the General Chairman wherein he asserted: "The facts as we understand them are as follows: There was an increase in the volume of timekeeping work of compiling payrolls:' The Referee's language is exactly the same, which he accepted as FACT, but which was simply a figment of the top Carrier officer's imagination-"manufactured" would be a better term to appy to it. Nothing, except imagination, in the Record proves there was an "increase in the volume of timekeeping work"; if there had been, which the Employes deny, payroll records would have proved it and could easily have been entered in the Record by Carrier-if such had been FACT.
There are FACTS in the Record which the Referee either failed to note or which he chose to ignore:
The first date of claim is January 30. On January 19, Claimant Hawthorne's position of Car Order Clerk was abolished on paper only meaning, of course, that the duties of the position still existed and were required to be performed. When Hawthorne displaced Murphy on the position of Chief Timechecker, Carrier required him to take his old duties of Car Order Clerk with him to his new position. The results are obvious: between two (2) employes-Hawthorne and Murphy-there were three (3) positions to work. Contrary to the alleged "increase in volume of work" there existed, in FACT, a decrease in the number of employes available but with the same volume of work as in the past. There are no FACTS of Record to refute these statements, fully covered in the Employes' submission and rebuttal statements.
It was pointed out to the Referee that a Carrier does not have the unqualified right to move employes around with impunity which would have the effect of absorbing overtime of employes contractually entitled to perform the work, which would, of necessity, be on an overtime basis in this dispute had such rearrangement of employes not been made by the Carrier. The Stenographer and her vacation relief worker were both required to vacate the Stenographer position in toto during the period of claim, to perform duties
completely foreign to the duties of Stenographer and, in so doing, Carrier avoided additional payments of overtime to Claimants.
Mrs. Blalock was employed by Carrier for one purpose and only one to fill the position of a vacationing employe, Mrs. 0'Laughlin's. That is the only purpose for which her services could be properly utilized under the agreement. She was permitted to fulfill the duties of that position for three (3) days, but upon reporting the fourth day to work the position for which she had been solely employed, she was required to suspend her work of the position for which she was employed and go over to another department to perform unrelated work for the next five (5) work days of her position.
Rule 9-titled "Filling of New Positions and Vacancies of Less Than 30 Days"-cited by the Employes, provides that Carrier may establish new positions of less than 30 days duration without bulletining them. Carrier did in fact establish such a position in this dispute, but did not bulletin it. Paragraph (a) of this rule provides in part: "However, in the filling of such vacancies or additional positions provisions of Rule 14 shall be observed, "" and paragraph (b): "When ' ° such vacancy cannot be filled by qualified available extra or furloughed employe, the Carrier may move an assigned employe from his regular position." Carrier did not attempt to call an available extra or furloughed employe, as the rule required it must first do.
The following Awards were presented to the Referee in the initial panel discussion and were again furnished to him (along with the above) in reargument which had been requested by the author, with the respectful request that he carefully review and reconsider his proposed award in this dis- pute:
The Referee refused to alter his proposed award, and it was adopted by the Majority, the Referee and the Carrier Members.