NATIONAL. RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22571
William M. Edgett, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employee
PARTIES TO DISPUTE
:
(Maine Central Railroad Company
( Portland Terminal Company
STATEMENT OF CLAIM
: Claim of the System Committee of the Brotherhood
(GIr8598) that:
1. Carrier violated the Agreement between the parties when on
November 18, 1976, it required and permitted junior employe to cover one
(1) day vacancy at time and one-half rate on the 11 PM to 7 A24 yard clerk
position at Bangor, Maine.
2. Carrier shall be required to pay C. T. Carson, Clerk,
Bangor, Maine, the senior employe entitled to the work, eight (8) hours'
pay at time and one-half rate for November 18, 1976.
OPINION OF BOARD
: There existed on this property a negotiated Agreement
which provided a procedure to be followed by the
parties when filling vacancies of less than thirty (30) days duration on
regular assignments. This Agreement had been in existence for more than
twelve (12) years when the instant controversy arose.
On the date is question claimant, who was regularly assigned on
first shift at Carrier's Bangor, Maine, Freight Office, alleged that he
should have been used to fill a one day vacancy on a third shift yard clerk
assignment instead of the junior employe who was used.
Carrier defends denial of this claim on the basis that the practice
at Bangor; Maine had been, in the absence of available qualified spare board
employes, to use employes regularly assigned at the freight office to fill
vacancies at the freight office and to use employes regularly assigned at
the yard area to fill vacancies in the yard.
From the record it is apparent that this method of filling
vacancies has been employed in the past with the apparent acquiescence of
the organization. We find in the record evidence of a written understanding
Award Number 22700 Page 2
Docket Number CL-22571
which post dates this claim discontinuing the separate areas and thereafter
such vacancies were filled by regularly assigned employes in seniority
order from the entire district absent an available qualified spare board
employe.
While"it is generally accepted that where there is a clear and
unambiguous rule or agreement, practice cannot be. a determinative factor;
in this case not only was Carrier not the beneficiary of the separated
area method of filling vacancies, but also the organization obviously
acquiesced in the arrangement and accepted the fruits thereof in silence
and without objection. As this Division said in Award No. 15827 (Ives):
"* * * Acquiescence is conduct from which may be
inferred assent. Under the doctrine of equitable
estoppel a 'person my (sic) be precluded by his
silence, when it was his duty to speak, from
asserting a right which he otherwise would have
had. * * *."
See also Third Division Award Nos. 22081, 22148 and 22213.
Therefore, the application which the parties themselves have
placed on the Agreement in question furnishes a controlling guide as to
their intent and desires. We adhere to that self imposed application and
find no basis for an affirmative award.
FILINGS
: 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.
Award Number 22700 Page 3
Docket Number CL-22571
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
79xecutive Secretary
Dated at Chicago, Illinois, this 11th day of January 1980.