(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
(. Express and Station Employes
PARTIES TO DISPUTE: ( I r
(Elgin, Joliet and Eastern Railway Company

STATEMNT OF CLAIM: Claim of the System Committee of the Brotherhood
' GL-63349 that:

"l. -The Carrier violated the effective Clerks' Agreement when effective June 24; 1975 it established Position GT-597 (changed to Position GT 552 effective'Ju4 23, 1975) with rest days dther than Saturday and Sunday when there existed no legitimate reason for so doing;

2. The Carrier shall now. compensate Clerk J. Moron, and/or his successor or successors in interest,'namely;_any other employe or ' employes who has stood in the status of claimants as occupants of Position GT-597 (G,T.552 after July 23, 1975) and as such were adversely aff~ected'for an additional four (4) hours'.. pay at the pro rata rate of Position GT-597 commencing with July 5, 1975 and for each and eve Saturday thereafter that a like-.violation occurs; and for eight (8~ hours' pay at the pro rata rate of Position GT 597 commencing on .July 7, 1975 and continuing for each and every M6aday thereafter that a like violation exists."

OPINION OF.HOARD: This dispute concerns the Carrier's action in
mid-1975, when the Carrier, by bulletin,
established a position (GT-552) with rest days of Sunday and Monday.

The rules which are pertinent to the assignment of rest days on this 7-day position (under the 40-hour work week) are Rule 36j(d) and 36-21(e):







            "(e). Regular Relief Assignments


            All possible regular relief assignments with five (5) days of work and two consecutive rest days will be established to do the work necessary on rest days of assignments in six (6) or seven (7) day service or combinations thereof, or to perform relief work on certain days and such types of other work on other days as any be assigned under this agreement."


The Fmployes assert that the Carrier is required to afford rest days of Saturday and Sunday when there is no valid basis for doing otherwise, pursuant to the rules of the agreement between the parties. The Carrier had three (3) Input-Output Technician assignments (around the clock - one per shift) and they were 7-day assignments. The position at issue in this dispute is as 11:00 p.m. to 7:00 a.m. assignment, with rest days of Sunday and Monday.

The Union asserted (while the matter was under consideration on the property) that because one relie Carrier had established was to protect the rest days of the various assignments, it was meaningless that the rest days for that assignment were Sunday and Monday, or Saturday and Sunday, because Monday was filled by a furloughed employe and it was practicable to designate Saturday and Sunday as rest days for the position and use a furloughed employe on Saturday. Thereby it would not disturb the one relief assignment which covered the three regularly assigned Input-Output Technicians.

Carrier argues that it has a unilateral right to establish rest days of other than Saturday and Sunday concerning 7-day positions, and that the organization may not question that determination. However, we think that Award 6384 (which was cited by Carrier) is quite pertinent to this dispute:

          "The essential question presented in this Claim is whether the Carrier violated.the rules of the Clerks' Agreement by assigning Monday and Tuesday as rest days for this position instead of Saturday and Sunday.

                  Award Number 22242 Page 3

                  Docket Number CL-21953


            "Article VI, Section 10-d is controlling. It provides that 'any two consecutive days may be the rest days with the presumption in favor of Saturday and Sunday.'


            Clearly, this is not a requirement that the two consecutive rest days must be on Saturday and Sunday. If the parties had intended a mandatory provision they would not have used the all inclusive term 'any', nor the permissive expression 'may.' The use of the word 'presumption' does, however, show that the Parties regarded Saturday and Sunday to be the proper rest days unless some other condition existed. The understanding as to what this condition could be is found in the December 17, 1948 Report to the President by the Emergency Hoard No. 66 in National Mediation Case A-2953, which reads in part:


              'Consistent with their operational requirements, the Carriers should allow the employes two consecutive days off in seven and so far as practicable these days should be Saturdays and Sundays.' (Emphasis stippUb).


            Because of the 'presumption in favor of Saturday and Sunday' set forth in Article VI, Section 10-d, the Carrier has the burden of showing that it was not 'practicable' to have Saturday and Sunday as rest days for this position. This Hoard cannot find that the terms 'practicable' and 'possible' are synonymous. There are many situations where what is 'possible' is not 'Practicable."' (underscoring ours.)


The Organization concedes that the Carrier has a right to establish 7-day positions with rest days other than Saturday and Sunday; however, it stresses that the Carrier must have some logical and legitimate reason for doing so. In this regard, if the Carrier is challenged pursuant to the dictates of Award 6384, cited above, it is the Carrier's burden to show "...that it was not practicable to have Saturday and Sunday as rest days for this position."
                                      R~


                  Award Number 22242- Page 4

                  Docket Number CL-21953


As we review the record, both on the property and as submitted to this Hoard, the Carrier has simply argued that the positions serviced a large steelmaking facility and that it was necessary to have qualified employes available for the assignments. However, as was pointed out by the Organization, the Carrier does not call extra or furloughed employes for the Input-Output assignments unless they have qualified - under a special agreement - to perform the duties of the assignments. Accordingly, we feel that the Carrier's argument has been met and rebutted by the Organization.

We are not unmindful. of the presentation to the Board by the Carrier Representative which stressed that it was difficult, if not impossible, to call qualified employes on a Saturday evening, which may very well have been a prime consideration in the assignment of the rest days. That assertion speaks directly to the practicability of an assigned Saturday and Sunday rest days. However, we are unable to find that such an assertion was presented and argued while the matter was under consideration and review on the property, so that the Organization might have had an opportuni and contentions. Had it been so presented, then it would have been_ properly before us for consideration; however, based on numerous determinations of this Board, we slay not now consider arguments which are raised for the first time before the Board.

Similarly, the issue of appropriate damages was also urged, for the first time, in the presentation of the case to this Board and for the same reasons, we are precluded from considering that issue.

The Carrier has failed to rebut the prima facie presentation made by the Organization on the property and, accordingly, we will sustain the claim in its entirety. However, we have noted that as a matter of record, the particular dispute presented here ceased to exist as of November 4, 1975 when the Monday rest day of Position GT-552 was made a part of another regular relief assignment. Of course, any controversy over that action would be the subject of another dispute and would not be properly before us.

        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;

                      Award Number 22242 Page 5

                    Docket Number CL-21953


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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


        Claim sustained to the extent specified in the Opinion of

Board. ,
-. NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary

Dated at Chicago, Illinois, this 30th day of November 1978.