xATIauL RAMOAD AWUSTM®R BOARD
THIRD DIVISION Docket Number CL-21160
Irwin M. Lieberman, Referee
Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Darlington Northern Inc.
STATElKOT CHI CLAM: Claim of the System Committee of the Brotherhood
(GL-7776) that:
1. Carrier violated the Clerks' Working Agreement at Everett,
Washington, by unilaterally removing a regular assigned employe from his
regular position of D Clerk at Delta Yard to fill a vacancy on PICL Clerk
position A-7 on December 28, 1973, rather than properly calling Claimant
at overtime to fill the vacancy.
2. Carrier shall now be required to compensate employe, Mr. W. L.
Blalock, A-5 PICL Clerk, eight hours' overtime at the A-5 rate of pay for
December 28, 1973.
OPINION OF
BOARD: The regular incumbent of position PILL Ho. A-7 at
Everett, Washington, was sick on December 28, 1973.
Carrier moved the Relief Clerk from his D-2 Yard Clerk position to work
the vacancy after he had alreaady worked an hour at that job. He was paid
one hour overtime and eight hours straight time for the work that day;
there is no dispute over his rate of pay. Claimant, who worked a different
shift, contended that he was available on his rest time and should have been
called at overtime for the assignment.
Petitioner's position is grounded on the theory that under the
Rules, regular assignments should not be disturbed except as a last recourse
- and there was recourse here in that Claimant was available daring his
relief time. Petitioner relies on the second sentence of.the sick leave
rule, which provides in Section H:
"Rule 55. SICK LEAVE
H. It will be optional with the Carrier to fill or
blank a position of an employe who is absent account his
personal sickness, and in receiving an allowance under
this rule. If the Carrier elects to fill. the vacancy,
rules of the agreement applicable thereto will apply.
The right of the Carrier to use other employes on duty
to perform the duties of the position of the employe absent under this rule is recognized."
Awed fiber 21184
Docket Number CL-2116o.
Page 2
Both parties agree that Carrier exercised its rights under the last sentence
" ....to use other employee on duty to perform the duties of the position of
the employe absent under this rule ...." but disagree as to the applicability
of other rules. This dispute with respect to the filling of abort vacancies
is the latest in a series involving the same issue, between these parties.
All of these cases are concerned with the applicability and interpretation
of the ratio of Rates Agreement which gives the Carrier, as
quid
pro
quo, "complete freedom in the assigaiment of work ...." in this situation
(Awards 20975, 20983, 20998 and 21092). As we said in the earlier disputes
we cannot find any contractual basis for the result desired by Petitioner:
the claim mast be denied on the ground of res udicata.
FIRDI11f14: 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 not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJIsTIOW BOARD
B7 Order of Third Division
100el
p4a~
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 13th day of August 1976.