CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Division, BRAC, on the Chicago, Milwaukee, St. Paul and Pacific Railroad, that:
An agreement between the parties, effective September 1, 1949, as amended and supplemented, is available to your Board and by this reference is being made a part hereof.
This claim was timely filed, progressed under the provisions of the Agreement to the highest officer designated by the Carrier to receive appeals, including conference, and has been denied. The Employes, therefore, appeal to your Honorable Board for adjudication.
This claim arose when, in the absence of an emergency, Carrier required Claimant to suspend work on his regularly assigned position in order to fill another position beginning an October 3, 1968 and continuing through January 3, 1969. A period of three months.
Employe Meyers was not required to fill the agent's position at Davis Junction, Illinois within fifteen days of his appointment thereto, as contemplated by the provisions of the aforequoted rule, because he was filling a temporary assignment on bulletin.
Inasmuch as Employe Meyers was not available to fill the position to which he was the successful applicant, and with no qualified extra telegrapher available to work the agent's position, the Carrier had no other alternative but to continue with the aforementioned arrangement of using Claimant Carter Monday through Friday on the agent's position in addition to paying overtime, not only to claimant but also to the 2nd trick operator and 3rd trick operator for services rendered on their assigned rest days.
The aforementioned arrangement lasted until a new employe was hired on January 4, 1969. The employe hired to fill the agent's position happened to be an ex-telegrapher who was able to fill the agent's duties without any difficulty.
While Claimant Carter was utilized in filling the agent's position during the period September 23 through January 3, 1969, he received a higher rate of pay, worked daylight hours (8:00 A. M. to 4:00 P. M.), worked at the same location and worked all his rest days for which he was paid the time and one-half rate.
During the same referred-to period (,September 23 through January 3, 1969) the 2nd and 3rd trick operators at Davis Junction, Illinois each worked their assigned rest days End were paid at the rate of time and one-half for such service performed on their rest days.
During that same period the Carrier made every effort to hire new agents-operators, as will be evidenced by the foregoing explanation and Carrier's Exhibits C-1, C-2, C-3, C-4 and C-5, but to no avail.
OPINION OF BOARD: The Claimant was the regularly assigned occupant of relief operator position at Davis Junction, Illinois, assigned to fill third trick operator's position, 12 Midnight to 8:00 A. M., on Thursday and Friday; the agent's position, 8:00 A. M. to 4:00 P. M., on Saturday and Sunday, and second trick operator's position, 4:00 P. M. to Midnight, on Monday.
The agent at Davis Junction made application for and was awarded position of agent at East Moline, Illinois. There were no qualified extra telegraphers available to work the agent's position until such time as it could be filled under the provisions of the Agreement. Claimant was utilized to fill the agent's position through January 3, 1969. The Petitioner contends that this resulted in his being required to suspend work on his assignment three days each week, Monday, Thursday and Friday. The Carrier
contended on the property that its actions were proper under the provisions of Rule 14(b) of the applicable Agreement, which rule reads in part:
The record shows that there had been a chronic shortage of qualified telegraphers throughout Carrier's property for some time. We must, therefore, determine whether or not the shortage of extra telegraphers in the present case constituted an emergency as referred to in Rule 14(b). This Board has defined an emergency as an unforeseen combination of circumstances which calls for immediate action. (Awards 10965, 16454.) We cannot find, under the facts as shown by the record, that an emergency existed as contemplated by Rule 14(b). Therefore, the Carrier's actions were not authorized under that rule.
Awards 16492, 16594 and 16664 have decided similar disputes between the same parties in which it was held that Claimants were improperly suspended from work under the terms of Rules 9 and 14. We agree with the reasoning of those Awards and find that the Agreement was violated.
The Carrier has objected to that portion of Item 1 of the claim reading "subsequent dates" and to Item 3 of the claim, contending that it was not properly handled on the property under the provisions of Article V of the Agreement of August 21, 1954; Section 3, First (i) of the Railway Labor Act, and Circular No. 1 of the Board. We find that the claim was properly handled as a "continuing violation" under Article V of the Agreement of August 21, 1954. However, the record shows that the claim for November 17, 1968, was never at issue on the property. The claim for that date will be dismissed.
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