Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27671
THIRD DIVISION Docket No. CL-27603
89-3-87-3-268
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10165) that:
1. The Southern Pacific Transportation Company violated the current
Clerk's Agreement when on July 2, 1986, it improperly used Ms. D. Buchanan
regularly assigned to Position 93, Crew Dispatcher, by shoving her to Position
92 in violation of Rule 34(f).
2. The Southern Pacific Transportation Company violated the current
Clerk's Agreement on July 2, 1986, when it failed or refused to call and use
Mr. E. Stevens, Jr., Clerk, Sparks, Nevada, for eight (8) hours overtime work
on Position No. 92, and instead shoved Ms. Buchanan to Position 92 from her
regular assignment Position 93, Crew Dispatcher.
The Southern Pacific Transportation Company shall now be required to
compensate Ms. D. Buchanan an additional eight (8) hours at the straight time
rate of Crew Dispatcher, Position 92, for July 2, 1986 and; will also be required to compensate Mr.
of Crew Dispatcher, Position No. 92, on July 2, 1986."
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 were given due notice of hearing thereon.
On July 2, 1986, a Crew Dispatcher, occupant of Position No. 92, laid
off owing to illness. The Carrier did not call in another employee to fill
the vacancy. There is, however, another Crew Dispatcher Position No. 93,
occupied by D. Buchanan, one of the Claimants herein. According to the Organization, Claimant Buchan
the work normally assigied to Position No. 92," as well as her regularly
assigned work on Position No. 93.
Form 1 Award No. 27671
Page 2 Docket No. CL-27603
89-3-87-3-268
Relevant to this occurrence is Rule 34(f), which reads in pertinent
part as follows:
"When a vacancy exists on an assigned work day
of an established position or a new position, it
will be filled as follows, when the Carrier elects
to fill the vacancy:
1. Senior, qualified, available Guaranteed
Extra Board employe on a straight-time basis in
accordance with the provisions of this Rule 34.
2. In the absence of a qualified Guaranteed
Extra Board employe on a straight-time basis, by
the senior, qualified, available assigned or Guaranteed Extra Board employe on an overtime basis, or
where applicable under the provisions of Section
(c) of this rule. In the case of a vacancy on a
relief assignment, by the incumbent of the position
to be relieved on that date, then by the senior,
qualified, available, assigned or Guaranteed Extra
Board employe. Calling will be from the volunteer
overtime list, where maintained.
3. In the event the vacancy cannot be filled
under Items 1 and 2, then the Carrier may instruct
an employe, scheduled to work the same hours as the
vacant position, to vacate his regular assignment
and fill the vacancy. An employe so removed will
be paid the rate of his regular assignment, the
rate of the assignment worked, or his protective
rate whichever is higher. However, if it is found
the Carrier could have filled the vacancy under
Items 1 or 2, and failed and/or neglected to call
employes referred to in Items I and 2, then the
Carrier will pay the employe removed from his
assignment eight hours' pay at the straight-time
rate of his regular assignment, or eight hours
straight-time pay at his protective rate if such
rate is being paid for service on his regular
assignment and, in addition, will be allowed eight
hours straight-time pay at the rate of the position
worked . . . .
Claimant Buchanan seeks eight hours' pay under Subsection 3 of Rule
34(f). Another Claimant, E. Stevens, an incumbent on Position No. 92 on
another shift, seeks eight hours' pay at the overtime rate because of the
failure of the Carrier to call him for duty under Subsection 2 of the Rule.
It must first be noted that Rule 34(f) became effective in 1979, so
that cited instances involving similar situations occurring prior to such date
are not necessarily instructive here.
Form 1 Award No. 27671
Page 3 Docket No. CL-27603
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The Rule is clear and requires no gloss. The Rule gives the Carrier
discretion as to whether or not to fill a "vacancy . . . on an assigned work
day of an established position." It is the Carrier's contention that the vacancy in Position No. 92
that at least some of the work of the position was assigned to and performed
by Claimant Buchanan.
During the claims handling procedure, Claimant Buchanan alleged that
she had performed all the work of Position No. 92, giving a detailed description of such work. The C
by the Claimant, stating that such could not have consumed more than an hour.
The Carrier, however, does not allege that any Position No. 92 duties were
left unperformed or were assigned to employees other than Claimant Buchanan.
The record shows that while both Position No. 92 and Position No. 93
are Crew Dispatcher positions, each has individual responsibilities as to the
class of employees involved.
Upon review of the record, the Board must conclude that neither Claimant Buchanan nor any oth
No. 92 instead of performing other work. The same effect resulted, however,
by the undisputed direction to Claimant Buchanan to complete the duties
assigned to Position No. 93. The Carrier simply did not dispute that this
occurred, although alleging the work load was light on the shift in question.
The Board concurs with the Organization that the Carrier cannot allege that it
has elected not to fill a position and simultaneously assign the work to an
employee.
In support of its position, the Carrier submitted 16 supervisory
statements as to the Carrier's practice under existing Rules when a position
is vacant. Of these statements, four indicated the Carrier's right to blank
the position with no performance of the position's work (not in dispute here)
or to fill the position from an Extra Board. The remaining 12 statements all
referred to dividing some or all of the work among other employees. None of
these cited examples address the specific facts here before the Board. The
record shows that the duties of Position No. 93 were performed by a single
employee, and there was no showing that work was left unperformed or was divided among "other em
in this instance was filled.
The situation here is in contrast to that reviewed in Third Division
Award 27206. In that instance, one RFO Clerk was not scheduled to work on a
holiday, while a second RFO Clerk was on duty. In that situation, it was
demonstrated that the positions were both bulletined identically as RFO Clerks
and that the work performed was "encompassed in either RFO position." Here,
the differing responsibilities between Position No. 92 and Position No. 93 was
established.
Similarly, the Carrier's reliance on the September 15, 1971 "TOPS"
Employment Stabilization Agreement is inappropriate. Clearly, the temporary
assignment of duties on a single shift does not fall under the significant
"changes" of Article I of that Agreement.
Form 1 Award No. 27671
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89-3-87-3-268
There was no dispute that Claimant Stevens was in line for the position, had an employee been ca
and based on the predominant view in such matters on this Division, the claim
for pay at the overtime rate is appropriate. Likewise, the claim by Claimant
Buchanan is appropriate under Rule 34(f), Subsection 3.
This leads to the result of requiring the Carrier to pay twice for
its Rule violation as to a single vacancy. Nevertheless, Claimant Stevens'
legitimate claim to the "filled" position was established. As to Claimant
Buchanan, in Rule 34(f), Paragraph 3, the parties agreed to a specific remedy
which cannot be modified by the Board.
This resolution is supported by Special Board of Arbitration Award
dated November 24, 1982 (Lieberman), involving the same parties and
interpreting the same Rule. In refuting the Carrier's Argument, that Award
stated:
"It is apparent that there was damage done to
Mr. Hudman by depriving him of the work opportunity
for Sunday, July 15. A second improper action was
the assignment of Claimant Magruder to the position
in question. The only change which the amendment
to Rule 34 apparently made with respect to this
process appeared to be setting forth a particular
penalty for the circumstances which affected Claimant Magruder. Nothing in that language or in any
evidence presented would seem to indicate that
prior practice with respect to contract violations
has been suspended in view of the new language. In
the instant circumstance, it is quite apparent that
the admitted contract violation affected two employees. In view of the clear damage done to both
employees, the rectification can only be that both
employees be made whole for the violation affecting
them. It is apparent that by paying Claimant
Magruder, Carrier has not satisfied the damage done
by the same act with respect to Claimant Hudman.
Thus, it is apparent that nothing in the Agreement
as amended in 1979, abridges Claimant Hudman's
right to be made whole for deprivation of an
assignment which was properly his."
A W A R D
Claim sustained.
Form 1 Award No. 27671
Page 5 Docket No. CL-27603
89-3-87-3-268
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
Nancy,j:klfver - Executive Secretary
Dated at Chicago, Illinois, this 17th day of January 1989.
CARRIER MEMBERS' DISSENT
TO
AWARD 27671, DOCKET CL-27603
(Referee Marx)
The Majority finds that the "Rule is clear and requires no
gloss." To that extent, the Majority is absolutely correct. It
is unfortunate that in rendering its decision, it interpreted the
Rule contrary to its clear terms.
The Majority finds that inasmuch as all the duties of the
vacant position were performed by Claimant Buchanan the vacation
position "was filled," in accordance with Rule 34(f). The
problem with such conclusion, however, is that it is
the egress
position is
part:
"3. In the event the vacancy cannot be filled
under Items 1 and 2, then the Carrier may instruct
an employe, scheduled to work the same hours as the
vacant position, to vacate his regular assignment
and fill the vacancy. An employee so removed
....
However, if it is found the Carrier could have
filled the vacancy under Items 1 and 2..., then the
Carrier will pay the employe removed from his
The parties to the Agreement made it perfectly clear that the
Carrier is to be considered as "filling" a position only when it
requires another employee "to vacate his regular assignment and
fill the vacancy." In this dispute, there is no disagreement
that Claimant Buchanan performed the normal duties of his regular
assignment and, in addition, was assigned the duties of the
vacant position as an accretion to his regular assignment.
language of Rule 34(f), which precisely
"filled." Thus Rule 34(f)3 provides,
contrary to
defines how a
in pertinent
The Majority, contrary to the specific language of the
Agreement which "is clear and requires no gloss," interpreted the
Rule as equating performing the work of a position with filling
the position. In the absence of clear language to the contrary,
that is certainly one possible interpretation, although it should
be pointed out that the evidence of past practice completely
supported the Carrier's position. It is unfortunate that the
Majority dismisses the evidence of past practice on the basis
that the Rule "is clear and requires no gloss," and then proceeds
to ignore the clear language.
We dissent.
M. W. Fi ger t R. L. Hicks
M. C. Lesnik P. V. Varga
61
E. Yost -