NATIONAL RAILROAD ADJUSTMENT BOARD
Award Number 2188?
THIRD DIVISION Docket Number CL-21363
Dana E. Eischen, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Houston Belt & Terminal Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood,
GL-8007, that:
1. The Carrier violated the Clerks' Agreement by failing and
refusing to fill the position of IBM Keypunch 410 as prescribed in Rule
24 of the Clerks' Agreement.
2. That Mrs. A. Schmidt be compensated for eight (8) hours
at the punitive rate of IBM Keypunch, or $42.60, December 30, 1974.
OPINION OF BOARD: On Monday, December 30, 1974 Mrs. B. K. Norris
was off work due to illness and was compensated for
sick leave under Rule 48. Mrs. Norris is regularly assigned to keypunch
position #418, hours 7:00 a.m. to 3:00 p.m., rest days Thursday and
Friday. Claimant Mrs. A. Schmidt is regularly assigned to keypunch
position A29, hours 11:00 p.m. to 7:00 a.m., rest days Saturday and
Sunday. With Mrs. Norris off sick, Carrier elected to blank job #418
on December 30, 1974 and the job did not work that day. On December 30,
1974 Mrs. Schmidt filed the instant time claim for eight hours, alleging
that Carrier violated the Agreement by blanking the job and should have
called her to work instead. On the property the Organization contended
that Carrier violated Rule 24 of the Agreement and the dispute is focused
on that provision of the contract.
The question narrows to whether Rule 24 expressly prohibits
management from exercising discretion in blanking or filling a position
when the incumbent lays off sick. The Organization seizes on the phrase
"will be filled" in Paragraphs (a) and (b) of the Rule as mandating
Carrier to fill the positions of laid off employes and prohibiting
blanking. In support of this view the Organization cites Awards 7255,
10849 and 16532 while rejecting Award 21443 as "palpably erroneous".
Carrier cites Award 21443 for the proposition that Paragraph (1) of
the Rule negatives any mandatory effect of Paragraphs (a) and (b) if,
arguendo9 they are mandatory and not merely directory, and argues that
Award Number
21887
Page 2
Docket Number CL-21363
there is no express limitation on blanking in Rule 24 and rejects
Award 10849 as "palpably erroneous."
We have studied the contested language and read all of the
cited Awards. We conclude that there is no express prohibition on
blanking in Rule 24. As we read that rule it sets forth the procedures
for filling temporary vacancies but cannot be construed as imposing an
obligation on the Carrier to fill the vacancy. See Awards 10888, 12358,
14252, 14696, 17434, 17704, 17950, et al. We find Award 10849 unpersuasive
and Award 7255 distinguishable on the facts. Award 16532 deals with
different contract language than that before us herein. As for Award
21443, we come out at the same place but we cannot travel the same
circuitous semantic route. We see no point in focusing on supposed
exculpatory language in Paragraph (1) since no preclusion of blanking
is imposed by Paragraphs (a) and (b) in the first place. Since there
was no express prohibition on blanking job #418, Carrier was free to
exercise reasonable management discretion. We find in the facts before
us no evidence that the discretion was abused. The claim must be denied.
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 jurisd',.
C."
IV
over the dispute involved herein; and
That the Agreement was not violated.
i
A W A R D
~~P~9AR 0 ? 1978
Claim denied.
J J. BE
NATIONAL
RAILROAD ADJUSTMENT
BOARD
By Order of Third Division
ATTEST:
OiA&e~
Dated at Chicago, Illinois, this 15th day of February
19'18.