NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 25289

THIRD DIVISION Locket Number CL-24972

I. M. Lieberman, Referee

(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Maine Central Railroad Company (Portland Terminal Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9698) that:

1. Carrier violated the Agreement on Sunday, August 16, 1981, by using junior employee to work the 2nd Trick, PM Office, Rigby Yard, eight (8) hours at punitive rate.

2. Carrier shall now be required to compensate Operator M. J. Hanscom, for eight (8) hours at punitive rate of pay, Sunday, August 16, 1981, as a result of said violation of the Agreement.

OPINION OF BOARD: This dispute deals with the application of seniority to
a rest day "spare work" assignment. There is no question
but that Carrier used a junior employe to Claimant to cover the assignment in
question. The crux of the matter is whether indeed Claimant was available for
the assignment.

First, the record indicates that the vacancy in question was a "furthernoticeO type which in 1981. Article 35(b) of the Agreement provides as follows:

"(b) Spare work will be assigned to and performed by spare employes who will be called according to seniority standing on the roster, provided they are qualified and available and will complete the assignments except as otherwise provided in paragraph (a), or (c), or (d) of this Article, or when diverted therefrom in emergency cases; in the latter instances the provisions of Article 15 will apply.

Spare employes must accept calls for service in accordance with the foregoing paragraph, except in cases of illness or other legitimate reasons."

The record indicates that all the employes involved in this matter were at the time Spare Operators. Claimant was on a vacancy as a Spare Operator and was not available except in an emergency, which was not alleged by Carrier. The employe called, though junior to Claimant, had just completed a spare assignment and was available since he was without assignment; he was available, however, at the punitive rate only, by virtue of the assignment he had just completed.

Award Number 25289 Page 2

Locket Number CL-24972

It is the Board's conclusion that Carrier had no obligation to call Claimant to fill a part of the vacancy in dispute (in view of his continuing assignment) when there was a man available on the Spareboard who had no further assignment. It is also noted that there was no loss of pay involved in this matter and Carrier had to pay the punitive rate to the employe used.

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 not violated.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

Attest:

Nancy J. D r -'Executive Secretary

Dated at Chicago, Illinois, this 28th day of February 1985.