Helpers 1 .43 per hour"

SC&E Gang 10 is composed of varying numbers of men, depending on the requirements of the service .

On the dates for which this claim was made the Foreman was temporarily absent from service. This is not an unusual situation and is brought about by C'arrier's desire to cooperate with its employes who may be absent due to illness, either of themselves or their families, exigencies in their home, the need to take care of personal business, or for many other reasons.

On the dates involved in this dispute the Gang, unilaterally, without the Carrier's knowledge or permission and without regard to the needs of the service, stepped members of the gang up in their rates of pay. Naturally, payment on such basis was declined and this claim grows out of C'arrier's refusal to allow men to fix their own assignments.

(Exhibits Not Reproduced)

OPINION OF BOARD: On the dates in the claim, the gang Foreman was absent from his job for periods varying from a few hours each day to two days. There were four men in the gang under his supervision, including the Leadman . The issue is whether the Carrier was obliged to fill the Foreman position on those dates from the members in the gang ands to upgrade another employe to the position of Leadman.

Employee contend' that the Foreman's absence created a temporary vacancy which the Carrier was obliged to fill under Rule 39 (c). That rule reads:

"(c) Temporary positions or vacancies of five days or less will be filled by the senior available employe but when it is known they will be of more than five days duration, the senior employe entitled thereto will be given opportunity to fill the position or vacancy."

Rule 39 (c) does not say that the absence of an employe in the gang constitutes a vacancy. Gangs vary in size and composition. There may be two or three men in a gang and there may be ten or more men. No rule in the schedule agreement obligates the Carrier to assign a Foreman and a Leadman to every gang. Rule 39 (c) merely provides how temporary vacancies are filled if and when one exists.

Rules 1 to 8 inclusive define, in a general way, the duties of the eight job classifications. They do not prescribe that at least one employe in each job classification must be assigned to each gang. Neither do they provide that a Foreman, or an Assistant Foreman and/or a Leadman must be assigned to each gang. In the absence of such an express direction, Carrier may operate a gang without an employe in any or all of the three named classifications. As a practical matter, however, an employe in at least one of such classifications is assigned. Which one is a prerogative of management just as it is also management's right to decide the size of each gang.

None of the rules cited by the Employes impose an obligation on the Carrier to fill every temporary vacancy. If the parties intended that the Carrier be so obligated they would have so provided. It is not within the power of this Board to write a rule for the parties.

Under the circumstances in this case, and in the absence of a specific prohibition in the schedule agreement, the Carrier had the right to blank the Foreman position on the dates in the claim.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and 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

That the Carrier did not violate the Agreement.

AWARD

Claims denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

ATTEST: S. H. Schulty

Executive Secretary

Dissent to Award 17950, Docket SG-18184

/s/ G.ORNDORFF

G. Orndorff

Labor Member