Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27708
THIRD DIVISION Docket No. MW-27227
89-3-86-3-309
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Delaware and Hudson Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned junior
Trackman D. Gaston to fill a temporary vacancy as assistant foreman on the tie
gang on July 4, 5, 9, 10, 11, 12, 13, 16, 17, 18, 19, 23, 24 and 25, 1984
instead of assigning Trackman W. Mason who was senior, available and qualified
to fill that vacancy (System Case 7-85).
(2) Because of the aforesaid violation, Trackman W. Mason shall be
allowed the difference between what he should have received at the assistant
foreman's rate and what he was paid at the trackman's rate for one hundred
twenty-eight (128) hours of straight time and twenty-four and one-half (24
1/2) hours of time and one-half."
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.
In early July, 1984, the Carrier issued a bulletin advertising an
assistant foreman position on the Tie Gang T-98, but it was necessary to fill
the position pending the assignment. Rather than affording the Claimant the
opportunity to fill the position, a junior trackman was assigned, and he
worked a total of 128 hour, at the straight-time rate and 24-1/2 hours of
overtime at time and one-half.
Form 1 Award No. 27708
page 2 Docket No. MW-27227
89-3-86-3-309
Rule 27(B) provides for the temporary filling of vacancies pending a
permanent assignment and indicates that the senior available employee will be
given preference. The organization asserts that the Carrier's failure to
allow the Claimant to fill the position violated the cited portion of the
Agreement.
The Carrier argues that there was an on-property custom dictating
that an individual interested in the position make a request to supervision to
cover the interim assignment, and if that individual can be spared from his
position, the request is accommodated. The Carrier states that the Claimant
made no request to cover the vacancy even though he did inquire. Also, since
the Claimant did not bid for the job on a permanent assignment, the Carrier
felt that the Claimant "never had any interest in the position claimed but
chose to capitalize on a situation that has no factual basis of support."
The Organization points out that the assertion of an alleged onproperty custom was not raised an
review on the property but, in fact, was raised for the first time in
Carrier's submission.
The Organization states that Claimant did raise the issue of a junior
employee having been given the opportunity to cover the work while the matter
was considered on the property, and denies that the failure to bid the
permanent assignment is material to this dispute.
As we review Rule 27, it states that vacancies may be filled temporarily and it appears obvious
employee is to be given preference.
Accordingly, we are inclined to sustain the claim.
The Carrier questions the propriety of awarding 24-1/2 hours of
overtime since the Claimant did not actually perform work and argued that if
the claim is to be sustained, the Claimant be compensated for 24-1/2 hours at
the pro-rata rate. We disagree and note that Third Division Award 25601 has
recently spoken to this question. Accordingly, we will sustain the claim as
presented. See also Third Division Award 27707.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. e r - Executive Secretary
Dated at Chicago, ILllnots, this 2nd day of February 1989.
CARRIER MEMBERS' DISSENT
TO
AWARD 27708, DOCKET MW-27227
(Referee Joseph A. Sickles)
The Majority held, in part:
"The Carrier questions the propriety of awarding 24J
hours of overtime since the Claimant did not actually perform
work and argued that if the claim is to be sustained, the
Claimant be compensated for 24J hours at the pro-rata rate.
We disagree and note that Third Division Award 25601 has
recently spoken to this question. Accordingly, we will
sustain the claim as presented. See also Third Division
Award 27707."
For the same reasons expressed in our Dissent to
Third Division Award 25601, we dissent.
M. C. Lesnik
M.~ rh
R. L. Hicks
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