NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20871
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Kansas City Terminal Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7657) that:
(1) The Carrier violated the Agreement when they failed to promptly
bulletin a vacancy as Chief Clerk in accordance with the bulletin and assignment rules (6 thru 10) t
(2) The Carrier be required to compensate Claimant Joseph Powell
for the difference between the daily rate of Chief Clerk, MW, ($43.88808 per
day) and that of the daily rate of the position of Equipment Record Clerk
#1 ($40.11105 per day) for the dates of June 14, 15, 18, 19, 20, 21, 22, 25,
26, 27, 28, 29, July 2, 3, 4, 5 and 6, 1973.
(3) That Carrier be required to pay seven (79) interest compounded
annually on such difference until Claimant is made whole.
OPINION OF BOARD: On May 14, 1973, incumbent Chief Clerk McClure became
ill and took extended sick leave. Petitioner contends
that Carrier's failure to bulletin the vacancy "promptly" violated Rules 5
through 10 of the Agreement and denied Claimant the right to promote. Com
pensation is therefore demanded at the rate of pay "differential" for various
dates in June and July, 1973, plus "interest at seven per cent". It is not
disputed that McClure actually returned to work on July 9, 1973, and that his
position was "blanked" by Carrier during his absence.
Carrier's contention that this claim lacks merit and should be
denied is based on two propositions. Firstly, it is asserted that under Rule
51 an "exception" exists as against Rule 6 which provides that "New positions
created or vacancies occurring will be promptly bulletined - - -," Rule 51
provides as follows:
"Rule 51 - Sick Leave
Where the work of an employe is kept up by other employes
without cost to the Carrier, a clerk who has been in continuous service of the Carrier one year and
years, will not have reduction made from his pay for time
absent account of a bona-fide case of sickness until he
has been absent five (5) working days in the calendar year
a clerk who has been in the continuous service two years and
Award Number
20956
Page 2
Docket Number CL-20871
less than three years, seven and one-half (7'k) working
days; a clerk who has been in continuous service three
years or longer, ten (10) working days. Deductions will
be made beyond the time allowance specified above.
The employing officer must be satisfied that the sickness
is bona-fide, and that no additional expense to the carrier is involved. Satisfactory evidence as to
in the form of a certificate from a reputable physician,
preferably a company physician, will be required in case
of doubt.
The above limits of sick leave may be extended in individual meritorious cases."
It is quite obvious that the clear purpose and intent of Rule 51
is to set forth standards and periods of time during which sick leave pay
will be allowed. However, we see no provision, or language to that effect,
in Rule 51 which establishes an exception to Rule 6 on prompt bulletining
of vacancies. Nor are we authorized to insert such provision where none
exists. Prior Awards of this Board are legion on the established principle
that the Agreement must be applied and interpreted as written and as negotiated between the principa
Secondly, and more to the point, is Carrier's contention that it
is within its management prerogatives to blank a position, as it did here,
and to determine at what reasonable point to fill a vacancy. In the latter
context, we held in Award 15979 (Engelstein) as follows:
"The last paragraph of this Rule establishes a procedure
for bulletining a position when a vacancy occurs. This
provision becomes applicable after Carrier exercises
its managerial prerogative to fill a vacancy." (Emphasis
added).
To the same effect, see Awards 16260 (Dugan), 16799 (Perelson),
17421 (Goodman), 12099 and 12358 (Dorsey), 14252 (Rohman), 16092 (Engelstein) and 16468 (McGovern).<
On the question of "blanking", and particularly under the Clerks'
Agreement, we held in Award 19668 (O'Brien):
"It is undisputed that Carrier has the right to blank a
position in the absence of the regularly assigned incumbent
where there is no contractual restriction against such
blanking".
Award Number
20956
Page 3
Docket Number CL-20871
In the instant dispute, therefore, under Rule 51 the work of
McClure was "being kept up by other employes without cost to the Carrier",
and this assured McClure of sick leave pay for the specified time set forth
in the Rule. We do not hold that such practice of having McClure's work
"kept up by other employes" could be continued by Carrier indefinitely. We
do hold, however, particularly in view of the short period of time here involved, that it was within
position and, for a reasonable period time, to refrain from bulletining the
position under Rule 6.
We note that under Rule 9 indefinite vacancies "need not be bulle
tined until the expiration of 30 days" "where there is doubt as to its dura-
tion". Also, that
Rule
1.0, covering "long vacancies", provides that when "it
is known" or "when it becomes evident that it will be of more than 30 days
duration, the position should be bulletined promptly as provided in Rule 6".
In the latter context, it is Petitioner's contention that Carrier "had reason
able knowledge that due to the nature of Chief Clerk McClure's illness, he
would be absent for a period of more than 30 days - - -".
However, we find nothing in the record before us to indicate the
nature or seriousness of McClure's illness; nor the submission of any facts,
other than mere conclusory assertions, showing on what basis Carrier possessed
the "reasonable knowledge" referred to above. In fact, McClure returned to
work on July 9, 1973. His absence, therefore, was not for an "extended"
period of time and does not support the assertion that he was "seriously ill".
Additionally, the prior Awards cited by Petitioner are not germane
factually and do not support Petitioner's contentions. Thus, for example,
Awards 4962 a_nd 4990 deal with filling vacancies by assignment in violation
of the Scope Rule of a particular Agreement. Award 7034 deals with assignment to claimant of the
position. Awards 7255 and 19668 are to the same effect as Award 7034.
In these circumstances, therefore, and under the particular facts
of this dispute, we cannot conclude that Carrier acted unreasonably or in
violation of the agreement. Accordingly, based on the record evidence and
controlling authority, we will deny the claim.
FINDINGS:The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
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;
Award Number
20956
Page 4
Docket Number CL-20871
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
..JJ~ By Order of Third Division
ATTEST:
~~ ~~/Z~
Executive Secretary
Dated at Chicago, Illinois, this 13th day of February
1976.
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