NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22821
Martin F. Scheinman, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Missouri-Kansas-Texas Railroad Company
STATEMENT OF CIAIM: Claim of the System Committee of the Brotherhood (GL-8781)
that:
1. The Carrier violated the Rules of the Clerks' Agreement
including but not limited to Rule 48 and Section XII of Addendum No. 1 of
DP-451 when on February 22 and 23, 1978, it suspended Mr. D. A. Fuhrig,
Clerk, St. Louis, Missouri from his regular assigned position of Chief Clerk
- Iron and Steel, and required him to work the Position of Chief Clerk -
Grain from 4:00 p.m. to 5:00 P.M., February 22 and from 8:15 a. m. to 9:50 a.m.,
February 23 and then refused to compensate him for this violation.
2. Carrier shall compensate Mr. D. A. Fuhrig, Clerk, St. Louis,
Missouri for 2-1/2 hours' pay at the rate of time and one-half of Chief
Clerk - Grain Position far February 22 and 23, 1978, account the Carrier
required him to suspend work on his regular assignment.
OPINION OF BOARD: Claimant, D. A. Fuhrig, Clerk, St. Louis, Missouri
is the regularly assigned occupant of the Chief Clerk
- Iron and Steel Position. As the regular occupant of that Position,
Claimant's hours of work are Monday through Friday, 8:15 a.m.-to 12:15 p. m.
and 1:00 p. m. to 5:00 p. m. with Saturday and Sunday as rest days.
On February 22 and 23, 1978, there existed a vacancy in the
Chief Clerk - Grain Position as a result of the former occupant of that
Position being dismissed from service of the Carrier effective February 14,
1978. The Chief Clerk - Grain Position was blanked on both February 22nd
and 23rd..
The Organization contends that Claimant, on Wednesday, February 22,
1978, during the hours of 4r00 p. m. - 5:00 p. m. and on Thursday, February 23,
1978, during the hours of 8:15 a.m. - 9:00 a. m., was required.to suspend
work on his regularly assigned position and perform duties of the blanked
position of Chief Clerk - Grain. The Organization argues that had Claimant
not suspended work on his regular assignment, he would have performed the
work on an overtime basis. The Organization claims that Carrier, by its
Award \umne-r
22855
Page
2
Docket Number
CL-22821
action, violated Bile
#48
"Absorbing Overtime." The Organization also
asserts that Article XII of Addendum No. 1 of the Extra Board Agreement
has been violated. It asks that Claimant be compensated for
2h
hours
pay at the rate of time and one-half of the Chief Clerk - Grain position.
Carrier, on the other hand, denies that it violated the Agreement. It maintains that Claimant wa
position to absorb overtime. Carrier also denies that Claimant performed
work of the blanked position.
A careful reading of the record, as well as the submissions to
this Board, indicate that the crux of the Organizations claim, here,
relies upon Rule
#48.
Rule
#48
states:
Employes will not be required to suspend work during
regular hours to absorb overtime.
NOTE:
Under the provisions of this rule, an employs
may not be requested to suspend work and pay during
his tour of duty to absorb overtime previously earned
or in anticipation of overtime to be earned by him.
It is not intended that an employe cross craft lines
to assist another employe. It is the intention,
however, that an employe may be used to assist another
employe during his tour of duty in the same office
or location where he works and in the same seniority
district without penalty. An employe assisting
another employe on a position paying a higher rate
will receive the higher rate for time worked while
assisting such employe, except that existing rules
which provide for payment of the highest rate for
entire tour of duty will continue in effect. An
employe assisting another employe on a position
paying the same or lower rate will not have his rate
reduced. (Article VI - ABSORBING
OVERPIIE -
FEBRUARY
25, 1971 NATIONAL AGREEIENT).
This Board has on many occasions interpreted this language.
In order to prevail, a Claimant mist show that he was.required to suspend
work on his regular assignment to perform the work of another assignment
which, otherwise, would have been performed on` an overtime basis by Claimant.
(See Awards
No. 7167, 5331, 13192, 14080, 14242, 14974, 16802).
That is,
Claimant must show that the work performed would have been performed on
an overtime basis if he had not suspended his work.
Award .lumber 22855 Page 3
Docket Number CL-22821
The disputed duties consisted of "compiling revised pages 15
and 35 to M-K-T Tarriff 10000 and taking same _to the printer and proofreading same an
General Freight Office." (Emphasis added). The Organization argued that
this work could have been performed on an overtime basis "before or after
his assigned hours or on rest days."
The unrefuted evidence is that the printer, John S. Swift Co.
Inc. is open for business Monday - Friday, between the hours of 8:30 a.m.
and 4:30 p. m. The Swift Co. is closed on Saturdays and Sundays. Given
the printer's involvement in the described tasks, it appears obvious
that the work had to be performed during Swift's operating hours. Thus,
it would be impossible for Claimant to perform the work after his assigned
hours or on Saturdays or Sundays since the printer would be closed.
Therefore; we must conclude that Claimant was not denied
anticipated or earned overtime in contravention of the Agreement since
no overtime had been earned or could reasonably be anticipated. In short,
Claimant has failed to establish the necessary elements of a Bile #48
violation.
While the central element of the Organization's claim relies
upon Bale #48, a violation of Article XII of Addendum No. 1 of the
Extra Board Agreement is also alleged.
Carrier has the right to blank positions on which vacancies
occur on a day to day basis. This much is not contested. However, the
Organization argued that the Chief Clerk - Qrain Position was not blanked
on February 22nd and 23rd because work of the Position was performed.
It provided numerous citations to support its view that a position is
blanked only when no one works it. See for example, Awards 19668, 7255,
7034.
Claimant has the burden of supporting its assertion that the
work of the position was performed by another employe on February 22nd
and 23rd. It has failed to meet that burden here. Claimant did not
establish that the disputed work normally accrued to the Chief Clerk -
Grain Position. As such, we will deny the claim.
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 22855 page 4
Docket Number OL-22821
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 ADJUSTMBNr BOARD
By Order of Third Division
ATTEST; ~'
Executive Secretary
Dated at Chicago, Illinois, this 16th day of Nay 1980.