NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-24954
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-9723) that:
1. Carrier violated the effective Clerks' Agreement when, on October
30, 1981, it used an extra employe who had already performed forty hours of
work in his workweek in preference to a regular employe;
2. Carrier shall now compensate
%it.
John Bazik eight (8) hours' pay
at the time and one-half rate of Position JT-559 (North End Yard Clerk) for
October 30, 1981."
OPINION OF BOARD: On Friday, October 30, 1981, Mr. E. T. Holden, an Extra
Board employee, worked at straight time on the sixth day in
a seven day period during which he had one rest day. The Organization alleges
that this contravenes the Agreement which provides for a workweek which begins
on Saturday and provides for five days work in each seven with two rest days
which need not be consecutive.
Further it alleges that the Carrier should not have used an Extra
Board employee for this assignment but should have used a regular employee
under the provision of the agreed upon procedure for filling vacancies. It
asserts "it should be noted that the Extra Board Agreement does not
contemplate the use of Extra Board employees for vacation relief and the
Carrier violated this Agreement in so doing."
The Organization has not grieved to pay the half time it alleges
should have been paid Mr. Holden, since the time limit had expired. It now
claims eight (8) hours at time and one half for the regular employee it
believes should have worked, had the proper procedure been followed.
The Carrier responds that no vacancy existed, rather Mr. Holden had
worked in place of the regular incumbent who was absent on vacation from
Monday, October 26 through Friday, October 30 and had observed his rest days
of October 31 and November 1, 1981. As such he had been paid the regular rate
for the workweek and the Carrier had incurred no premium penalty for same.
Moreover since no "vacancy" existed, only a vacation absence, the Carrier was
not obliged to use the "Order of Calling to Fill Vacancies" under the existing
Agreement.
Also it is argued that this eventuality had been specifically dealt
with in "Rule 42 - Overtime", which provides:
Award Number 25906 Page 2
Docket Number CL-24954
" . . .(c) Employees worked on more than five days
in a work week shall be paid one and one-half
times the basic straight time rate for work on the
sixth and seventh days of their work weeks, except
where such work is performed by an employee due to
moving from one assignment to another on to or from
a furloughed list . . . " (emphasis added)
The Carrier cites Article 12 of the Vacation Agreement (12-17-41), as
controlling. The relevant portion of Article 12 reads:
"(a). . . a carrier shall not be required to assume
greater expense because of granting a vacation than
would be incurred if an employee were not granted a
vacation and was paid in lieu therefor under the
provision hereof . . .
(b) . . . vacation . . .absences from duty will not
constitute 'vacancies' in their positions under any
agreement. When the position of a vacationing
employee is to be filled and regular relief employe
is not utilized, effort will be made to observe the
principle of seniority." (emphasis added)
By the above rubric the assignment on October 30 cannot constitute a
vacancy and one did not exist. Thus Mr. Bazi cannot invoke the procedure to
be followed in filling one. The Carrier cites a number of instances wherein
this right is affirmed and Award No. 20523 states: " The claim asserts a
violation of Rule 34 - Short Vacancies and the National Vacation Agreement.
The assignment of Claimant to replace a vacationing employee did not violate
Rule 34 since Section 12 (b) of the Vacation Agreement provides that vacation
absence will "not constitute vacancies in their position under any agreement."
This language is clear and unambiguous.
Too, since Mr. Bazik would have to be compensated at a premium rate,
the Carrier had the right to schedule an employee which would relieve it of
that expense. In this case Mr. Holden, an Extra Board employee was used
without penalty.
The question of whether or not an Extra Board employee was used
properly in this case is answered in the affirmative. Other instances are
cited in Carrier's submission, uncontested in the Employees' Rebuttal, of
Extra Board employees being assigned to fill vacation absences. Included is
one involving a Claim wherein " . . . an extra board clerk was assigned to
fill a vacation vacancy on position No. GT-34 . . . The General Chairman
avers, "It is our position that pursuant to the Extra Board Agreement Clerk
Irma Shadrick was assigned to fill a vacancy on Position GT-34 which extended
for more than 3 days . . . . Thus the Employees cannot claim that this is
substantially new or different from prior assignments of Extra Board employees
and grievable on these grounds to transcend the Extra Board Agreement or the
practice of filling vacation absences.
Award Number 25906 Page 3
Docket Number CL-24954
The Carrier asserts the Mr. Bazik is not the proper Claimant but this
matter is moot since the Board holds that the Claim itself is invalid and
denies it.
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 had 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. Dever - Executive Secretary
Dated at Chicago, Illinois, this 26th day of February 1986.