STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Division, BRAC, on the Ann Arbor Railroad, T-C 5744, that:
The Agreement between the parties, effective September 1, 1955, as amended and supplemented, is on file with your Board and by this reference is made a part hereof.
Claim was timely presented, progressed, including conference with highest officer designated by Carrier to receive appeals, and it remained declined. The Employes, therefore, appeal to your Honorable Board for adjudication
The claim arose as a result of a vacancy which developed on the Agent. Telegrapher position at Mt. Pleasant, Michigan, commencing January 15,
Mr. W. L. Larson, Manager Data Origination and Quality Control, declined the claim in a letter dated May 22, 1969. (See Exhibit B)
District Chairman Stevens acknowleged Air. Larson's declination on May 26, 1969. (See Exhibit C)
On July 9, 1969 General Chairman, Mr. F. G. Worsham, appealed the claim to R. J. O'Brien, Personnel Manager. (See Exhibit D)
Mr. O'Brien declined the claim in a letter dated August 15, 1969. (See Exhibit E)
In a letter dated October 7, 1969, General Chairman Worsham advised the Personnel Manager that he did not accept his decision. (See Exhibit F)
The claim was discussed in conference on January 7, 1970 and in a letter dated February 2, 1970, General Chairman Worsham confirmed the January 7, 1970 conference and stated his position relative to the claim. (See Exhibit G)
The claim was again discussed in conference on February 11, 1970 and in a letter dated February 24, 1970 the Personnel Manager confirmed the January 7 and February 11, 1970 conferences and replied to the statements contained in Mr. Worsham's October 7, 1969 and February 2, 1970 letters. (See Exhibit H)
General Chairman Worsham again stated his position in a letter dated March 4, 1970. (See Exhibit I)
OPINION OF BOARD: This claim arose from the following circumstances: A temporary vacancy in the monthly rated position of Agent at Mt. Pleasant, Michigan, occurred because of illness of the regular incumbent. Carrier filled this vacancy, using a regular relief agent whose position had been established by agreement between the parties for just such purposes. This relief employe, however, after filling the vacancy for some time, became unavailable for work and left the Carrier's service. No extra employe was available to fill the resulting vacancy. Carrier then arranged for the occupant of another monthly rated position, R. L. Chadwick, to take care of the work necessary at Mt. Pleasant in addition to that of his own job, and outside of his regular assignment, paying him an additional 4 hours at overtime rate each day as well as a travel allowance.
Employes considered this action of the Carrier to be in violation of their Agreement and filed claim accordingly. The claim as handled on the property, although obscurely stated, alleged that Carrier had no right to arrange for the work at Mt. Pleasant to be performed by Mr. Chadwick, and that in so doing it violated not only his rights but also the seniority and other rights of "an employe * * * senior idle extra man in preference and/or a regular assigned employe * * * on his rest day and/or days * * *." A day's pay was claimed for this employe - at the rate of the M~t. Pleasant position - for each of the twelve claim dates. A day's pay for each of these dates was also claimed for Mr. Chadwick at the overtime rate. Additionally, automobile mileage was claimed for Mr. Charwrick. Employes later concede that the mileage was paid, and that question has thus been laid to rest.
The Employes' position, not very clearly stated but as gleamed from the grossly excessive verbiage of their presentation, seens to be that Carrier effected what amounts to a temporary consolidation of positions contrary to the clear intent that such consolidations can properly be made only by agreement between the parties, thereby depriving some employe of an opportunity to work the days in auestion; also, that the amount paid Chadwick for the work performed at Mt. Pleasant was less than was required by the agreement provisions.
Carrier's position, also somewhat obscured by excessive and sometimes irrelevant argument, is, in the final analysis, merely a categorical denial that its action was improper under the agreement. This is not to say, however, that Carrier's position is insufficiently presented because the burden of proving its case rests with the Petitioner.
The Employes' theory of the case, insofar as they have offered rules or agreement provisions for support, presents two questions for decision: (1) Did Carrier run afoul of any agreement provision in arranging for Mr. Chadw'ick to perform the work at Aft. Pleasant in addition to that of his own position? (2) Did Carrier properly pay Mr. Chadwick for the additional work?
With respect to the first of these questions we must note that the alleged agreement of Chadwick to do the work; for four hours' overtime is wholly irrelevant. It is firmly settled that an individual employe may not enter into agreements that have the effect of varying the terms of the collectively bargained agreement. The decisive point for consideration here is whether the parties' agreement prohibits the use of an employe to perform work in addition to that of his own assignment.
The Employes contend that various provisions have such pro:ibitory effect. We have carefully studied those provisions and the Employes' argumerits relatiag to them. None of the provisions cited directly prohibits the Carrier from using air employe in the manner here complained of. But, the Employes argue, there is such a implication. The difficulty with this argument is that it requires speculation, an aetivitty not properly available to the Board.
If such a prohibition were intended it would have been easy to include appropriate languag-~. We have observed that Rule 11, entitled "Regular Assigned Employes Doing Extra Work," contains no such prohibition as is sometimes contained in similar rules on other properties.
We must, therefore, conclude that the Employes have failed to prove that use of Chadwick to perform the work at Mt. Pleasant was violative of any provision of the Agreement. It follows that claims 1 and 2 must be denied.
With respect to the second question for decision we have an entirely different situation. The position at Mt. Pleasant is a rnonthly rafted position subject to some special provisions which must of necessity take precedence over general provisions. Rule 4(b) reads as follows:
Rule 6 provides for tue payment of overtime and calls. By operation of Rule 4(b), Rule 6 is not applicable to the lift. Pleasant position, Therefore,
the payment of four hours' overtime at time and one-half rate to Chadwick was not provided for by the Agreement.
Rule 9, Section 3(b) is a special rule, applicable only to those positions shown in Rule 30 under the caption "Monthly Rated Positions;" of which the Agent position at Mt. Pleasant is one. The third paragraph of Rule 9, Section 3(b) reads as follows:
This provision is directly and clearly applicable to the facts before us. Chadwick worked "on the position" only a part of the months involved, one day in March and eleven days in April.
Since the position is not subject to the Basic Day, Overtime and Calls, Meal Period, Starting Time, and most of the Work Week rules (Rules 5, 6, 7, 8 and 9) the quoted provision provides the only basis of payment for an employe required to work only a part of a month on such a position.
Carrier has paid Chadwick four hours at overtime rate for each day he worked on the position. This is the equivalent of six hours at straight time rate. The computation required by Rule 9, Section 3(b), third paragraph, would result in the equivalent of two additional hours at straight time rate for each day involved. To that extent he was underpaid, and to that extent only the claim in Part 3 of the Statement of Claim will be sustained.
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
That the Agreement was violated only to the extent indicated in the Opinion.