NATIONAL RAILROAD ADJUSME14T HOARD

Award Number 22178

THIRD DIVISION Docket Number CL-21799

Herbert L. Marx, Jr., Referee

(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (Southern Pacific Transportation Cc-many ( (Pacific Lines)

STATEMENT OF CLAIM: Claim of the System Cc_mmittee of the Brotherhood, GL-8187, that:

(a) The Southern Pacific Transportation Company violated the current Clerks' Agreement when it failed to call emnioye Noreen Griffin to perform service on Position No. 367 August 21, 1973, and, instead, used junior employe Y. Cavavarra thereon; and,

(b) The Southern Pacific Transportation Company shall now be required to allow Noreen Griffin eight (8) hours' additional compensation at the overtime rate of her guaranteed rate of pay August 21, 1973.

OPMON OF BOARD: In this case there was a brief vacancy created on

Telephone Operator Position No. 367, assigned to

work from 11:30 a.m. to 8 p.m., which was occasioned by the regularly

assigned incumbent becoming ill and leaving work at 2:25 P.m.,

August 21, 1973. Carrier elected to "fill" the vacancy on an overtime

basis.

Claimant, insofar as the record shows, was the senior qualified and available telephone operator. The Organization argues that when Carrier decided to fill the vacancy, Claimant should have been called and offered the work.

Carrier resists the claim on the grounds that no rule in the Agreement grants Claimant the contractual right to this assignment and --7 also on the basis that Claimant was not available, since there had been / attempts to call her three times without resuonse.

Award Number 22178 Page 2

Docket Number CL-21799

This defense was later clarified in the Carrier's Submission which stated:

". . . Carrier's General Superintendent of

Communications - System, denied the claim based

1 on claimant's unavailability when effort was

"~ made to call her for overtime service on

' another vacancy earlier in the day in question.

Claimant however was never called for the over

time assignment involved in this instance . . . ."

Based on the facts and circumstances! surrounding this claim

and the admission above, the Board finds that,,Carrier believed Claimant
had a right to be called for the assignment but did not make the call
r on the basis that it assumed she was not available. Clearly,
assumptions of availability or unavailability are not sufficient
During the During the handling of the claim on the property Carrier offere to
settle the dispute for pay of 312 6 hours, but that offer was rejected on
the basis that Claimant could have worked five hours.

The Board finds the proper remedy in this case is to allow Claimant the time she could have worked had the Carrier not made the faulty assumption that she was not available. The Board will sustain the claim for five hours at the rate of time and one-half.

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.

Award Number 22178 Page 3

Docket Number CL-21799

A W A R D

Claim sustained to the extent indicated =n the Opinion.

NATIONAL RAM.RCAD ADJUSTMT BOARD

By Order of Third Division

ATTEST:

Executive Secretary

Dated at Chicago, Illinois, this 31st day of August 1973.

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