Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26919
THIRD DIVISION Docket No. CL-26766
88-3-85-3-668
The Third Division consisted of the regular members and in
addition Referee Edwin H. Benn when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The River Terminal Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10052) that:
1. Carrier violated the effective Clerks' Agreement when, on
November 6, 1984, it failed to call Clerk Harry Heller for a short vacancy
on a crew clerk position in accordance with said Agreement.
2. Carrier shall now compensate Mr. Heller for eight (8) hours' pay
at the time and one-half rate of a crew clerk position for November 6, 1984."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At the time this Claim arose, Claimant was the regular incumbent of
a Crew Clerk position. Claimant's position was relieved on rest days by a
regular established relief position held by J. Jordan.
November 6, 1984, was Claimant's rest day. On that date, the relief
employee, Jordan, was absent due to illness. No qualified extra board employees were available to fi
than calling Claimant to fill the position resulting from Jordan's marking
off, the Carrier removed Chief Yard Clerk D. Novak from his position and
required him to fill the vacant Crew Clerk position. The Carrier then called
Extra Board Clerk G. Griner to fill the position vacated by Novak. Claimant
maintains that since he was available he should have been called to fill the
vacancy created by Jordan's absence. Claimant seeks compensation at the
punitive rate.
Form 1 Award No. 26919
Page 2 Docket No. CL-26766
88-3-85-3-668
The relevant Rules provide:
"RULE 53
SICK LEAVE
(I) It will be optional with the Carrier to
fill, partially fill or blank a position of an
employe who is absent account his personal
sickness and is receiving an allowance under
this rule. If the Carrier elects to fill the
vacancy, rules of the agreement applicable
thereto will apply. The right of the Carrier to
use other employes occupying positions coming
under the scope of this agreement to perform the
duties of the position of the employe absent
under this rule is recognized.
RULE 64
EXTRA BOARD
x
(D) In providing relief on short vacancies of
less than five (5) days or of an unknown dura
tion, the following order of precedence will be
observed:
1. By using the extra board employes on a
day to day (trick to trick) basis and on a
rotating basis.
2. If (1) above fails to provide an occu
pant and employes on the extra board are
not available or have completed their
assignment that day, or their five assign
ments that week, the relief shall be pro
vided on a day to day basis by using the
incumbent on his regular scheduled day off.
3. If paragraph (1) and (2) fail to pro
vide an occupant, the Company may use
regular assigned employes (including extra
board employes) on a seniority basis, from
such employes who have an application on
file to protect such service.
Form 1 Award No. 26919
Page 3 Docket No. CL-26766
88-3-85-3-668
The above Rules provide a very specific procedure for the filling of
vacancies. When an employe is sick, Rule 53 gives the Carrier the option of
filling, partially filling or blanking the position. If the Carrier chooses
to exercise the option of filling the vacancy, then the "rules of the agreement applicable thereto w
vacancy. The relief employee's absence presented a "relief on short vacancies
less than five (5) days" thereby requiring the provisions of Rule 64 to apply.
Rule 64(D)(1) first permits use of Extra Board employees. Due to lack of a
qualified employee, the Carrier did not fill the vacancy from the extra board.
Since the extra board did not produce an employee to fill the vacancy, Rule
64(D)(2) requires that "the relief shall be provided
...
by using the incumbent on his regular scheduled day off." The incumbent was Claimant. Therefore,
of the relief employee after the extra board did not provide an employee to
fill the vacancy, the Carrier violated the specific requirement of Rule
640)(2).
The Carrier's argument that it had the right under Rule 53(1) to use
employees occupying other positions to perform the duties of an absent employee does not change the
when using employees under the Agreement to fill a vacancy as occurred in this
matter as a result of the Carrier's exercising its option to fill a vacancy,
Rule 53 still requires that the "rules of the agreement applicable thereto
will apply." Hence, the Agreement's specific terms had to be followed, in
this case the specific provisions of Rule 64. Any other interpretation would
render the specific procedure agreed to by the parties in Rule 64 meaningless.
We shall therefore sustain the Claim. Under the circumstances, we
shall require that Claimant be compensated at the straight time rate. See
Third Division Award 26340.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J.
aWt
- Executive Secretary
Dated at Chicago, Illinois, this 30th day of March 1988.