NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20901
Irwin M. Lieberman, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express Station Employes
PARTIES TO DISPUTE:
(Western Maryland Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7650)
that:
1. Carrier violated the rules of the Clerks' Agreement when it improperly used an employe junior to
2. G. B. Hook shall now be allowed eight (8) hours' pay at the punitive rate of $4.4300 per hour for
OPINION OF BOARD: Claimant, although more senior than the employe used, was
not called to fill the position of Demurrage clerk on the
various Saturday claim dates specified.
Carrier, admitting that a more junior employe was used, claims that
Petitioner was not qualified to fill the position in question since the Saturday duties are more var
dispute; the Rule provides:
"FILLING OVERTIME VACANCIES
When extra employes are unavailable at the pro rata rate and
it is necessary to fill a vacancy on overtime basis, employes
will be called for the overtime work in the following order:
1. The regular incumbent of the position requiring overtime.
2. The regular relief employs assigned to the position requiring
overtime. Relief employes are available on their rest days only
and have rights for call on any position which they cover during
their five day work week assignment. When more than one relief
employe is available on the same day, seniority will govern.
3. The first-out qualified extra board employe.
4. If the position cannot be filled by the foregoing, available
qualified employes in the office where the vacancy occurs will be
offered the position in seniority order if not working their own
position during the same hours as the position requiring overtime.
Award Number 21073 Page 2
Docket Number CL-20901
5. When a qualified employe cannot be secured to fill the
vacancy as outlined above, the office force may be rearranged
to the extent necessary to secure a qualified employe.
The foregoing is not applicable to daily overtime which is
continuous with a tour of duty, nor does it prevent the use
of furloughed employes to perform extra and relief work as
provided in Rule 22."
Carrier also argues that Petitioner has not met its burden of proof in this
dispute. On the property Carrier also raised the points that Claimant made no
effort to qualify himself for Saturday work and further that the complaint was
filed some fifty days after the first vacancy. Carrier argues that it has the
sole prerogative to determine whether the employe is qualified for a position,
unless its judgement can be shown to have been arbitrary and capricious, which
has not been done in this case.
Petitioner states that not only was Claimant the senior employe involved but the Saturday work was t
demonstrates that he is amply qualified to work alone on Saturdays; twenty two
years seniority and fifteen years work on the two largest one-man agencies on
the property.
Both parties submitted new evidence and arguments in their submissions
to this Board. Such material will not be considered in accordance with long
established practice and awards of this Board.
The record of the handling of this dispute on the property indicates
some confusion on the part of Carrier as to the precise position being considered: there is substant
which are not at issue in this matter. Nor is there any relevance to Claimant's ability (or lack of
under consideration herein.
The record indicates that Claimant's regular position, for which he
was admittedly qualified, had the following basic duties, as described in
Bulletin No. 20, dated July 11, 1972:
"Be familiar with and execute demurrage rules and regulations;
prepare demurrage report, interchange reports, transit statements;
receive and sign bills of lading; waybilling when necessary; operate typewriters; and general office
Award Number 21073 Page 3
Docket Number CL-20901
The Superintendent's Findings, in a document dated April 27, 1973, described the duties which we
position in question as follows:
"Receipting bills of lading
Supervising piggyback operation
Waybilling
Switching waybills
Interchange reports
Constructive placement notices
Notification of customers as required
Telephone and handling of unusual requests."
With respect to Carrier's comments on the property, the Claim herein, although
fifty days after the first vacancy, was timely under the Agreement. Further,
there is no
Rule-requirement cited
which requires qualifying for Saturday
work. An examination of the functions described by the Superintendent, above,
does not support the contention that the Saturday duties were considerably
more varied than those during the week; there are only a few additional functions which were not spe
responsibilities. Furthermore, it is clear from the record that Claimant has
functioned independently, as on the Saturdays in question, when he operated
one man agencies. On balance, as the record indicates, the Carrier's decision
that Claimant was not qualified to perform the clerk's duties on Saturdays
seems arbitrary and capricious - and not warranted by the facts. Our conclusion, therefore, is that
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;
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was violated.
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Docket Number CL-20901
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
~ By Order of Third Division
ATTEST
: a
Executive Secretary
Dated at Chicago, Illinois, this 19th day of May 1976.