(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers. Express and Station Employee PARTIES TO DISPUTE: (Belt Railway Company of Chicago

1. Carrier violated the effective Clerks' Agreement when it employed Ms. J. Heater on a clerical position without permitting her to establish seniority and under conditions not is conformity with the provisions of the collective bar
2. (terrier shall now place Ms. Heater on the clerical seniority roster with a seniority date of May 7, 1979; shall compensate her for the difference between what she received ate. the rate of Position No. 541 for service performed from May 7, 1979 through June 1, 1979, shall compensate her for nay and all work to which she would have been entitled by virtue of her seniority which was performed by a junior employs or a non-employs commencing on June 2, 1979 sad continuing each and every day thereafter that a like violation occurs.

 OPINION CF BOARD: In this dispute, a temporary position existed due to an
 incumbent going on a maternity leave of absence. The
 record indicates that there were no furloughed or extra employee at the tame
 end that the maternity leave of absence wen expected to last less than sixty
 (60) days. Further, the Carrier insists that there were no employee avail
 able or willing to perform the work of the temporary position on as overtime
 basis.

 When no one bid the position, the Carrier employed the services of the Claimant., who was as employs of Stiver's Temporary Personnel, Inc. She was not afforded a seniority date nor, according to the Organization, was she paid the rate of pay established for the position she filled and she did not receive any contractual benefits. The provisions of Rule 19 were cao<plied with in an attempt to f111 the position however it remained open and the Carrier then applied Rule 10, which states that in the event no applications are received from employee is service covered by the Agreement Rules, and Rule 19 ha by an individual not covered by the Agreement. The Organization does not deny that the Carrier had the right to fill the position under Rule 10 however the Organization stat covered by the Agreement that person becomes a new employs and the provisions of the Agreement apply.


The Carrier states that Rule 10 is clear and unambiguous and all that it states is that if the Carrier is unable to fill a position under the terms of the Agreement the Carrier may use say individual - whether such individual is a Supervisor, an employs of another craft, or - as here - a non-employs furnished on a temporary basis.

 In a September 25, 1979 dell of the claim, the (terrier's Director of Labor Relations and Personnel stated to the Organization that employes of the temporary personnel agency involved have been used for "...many years on this property in situations such se here where there are no furloughed or regular employee available to work a temporary vacancy."

 Although some seven (7) months passed before the matter was submitted to this Board in a letter stating intention to file an ex pane submission, the Board finds no rebuttal to that assertion. It may very well be the case, as cited by the Organization, that it is not enough that a party merely assert peat practice but it must actually be proved (Third Division Award No. 19647); nonetheless it would seem that a party has some obligation to dispute the existence of a practice if in fact one is alleged.

 · But in any event, we feel that Third Division Award No. 235 is Dertinent to the dispute. Although a different type of claim was presented to the Board in that c between these same parties concerning a temporary employs hired from as employment service agency stated that there wen Schedule support for hiring a temporary employs under the facts of that case. In the penultimate paragraph the Board stat 23562 that the (terrier had the right under Rule 10 to hire "...on a temporary basis an employe not covered by the Agreement." As we read the Agreement as a whole and the prior Award we do not conclude that the Referee is the cited case suggested that the temporary emplo of the Agreement to the extent that the Organization asserts is this case.

 ode have also considered the Decision of the Arbitrator in Award No. 1 of Public Law Board No. 119 however we do not feel that the same contractual language or the same facts of record exist-there so as to make that Award controlling is contemplation of the prior Award on this property.

        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 24135 Page 3

                    Docket Number CL-23457


That the Carrier and the Employes involved in this dispute are respectively Carrier sad Employes within the meaning of the Railway Labor Acts 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 AIITUSTMU BOARD

                              By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 BY
        semarie Breach - Administrative Assistant


Dated at Chicago., Illinois this 27th day of January 1983.

                                          RECEIVED


              LABOR MEMBER'S DISSENT FEB 17 1983

              TO AWARD 24135, DOCKET CL-23457 THIRD DI _VIgION.

              (Referee J. Sickles)


Award 24135 is palpably erroneous. The Award avoids deciding the claim submitted through a different dispute and then resolving this different dispute to its own pleasing. One need only look at the statement of claim to appreciate this fact. What the dispute involved and what the statement of claim sought was the payment at the rate of Position :do. 541 for the "employe" used to fill the position during the regular incumbent's maternity leave. The facts were not disputed. Attempts to fill the vacancy bottomed out and Rule 10 became involved. Rule 10 reads:

    "Bulletined positions may be filled temporarily pending assignment. In the event no applications are received from employees in service covered by these rules, and Rule 19 has been complied with, the osition ma be filled b an individual not covered y t is Agreement.

(emphasis added) Under the clear language the vacancy can then be filled by someone (an individual) not covered by the agreement. But once such an individual commences work on the position he becomes an emplove subject to the agreement and all provisions of the agreement apply. It is gross stupidity to suggest any other result.- In normal times, each work day, scores of vacancies under clerical agreements on all U.S. Carriers which have are eventually filled by individuals not covered by the agreement.
 Such individuals are, none-the-less paid the rate of pay provided by the agreement. They establi by the agreement. They receive the fringe benefits negotiated for all employes subject to the agreement and their wages are subject to the Railroad Retirement Taxing Act and the Railroad Unemployment Insurance Act. Any other result would mean that eventually, through attrition, all employes could be removed from agreement coverage.
 Additionally, the Railway Labor Act clearly defines "employe" and the law makes no distinction between individuals hired on a permanent basis or those hired on a temporary basis. Moreover, the source from which an individual becomes an employe, family referral, Railroad Retirement Board placement services, want ads, or temporary personnel agencies, etc., is not remarkable. When hired, regardless of source, an individual becomes an employe subject to the Act and subject to the agreement. Thus, to now suggest that a "temporary employe" does not become an "employe" solely because the individual was recruited through temporary employment service is ludicrous.
 The absence of logic in the Award, its faulty premises and its obviously defective conclusion will demonstrate clearly its incompetence.

                                        i


          jUL 2 7 11983 J. F cher, La~ar Member


        / c°9o Office -d~ Date

                                ~- lS - 8 3


                        - 2 - Labor Member's Dissent

                                      to Award 24135