Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award
No.
27845
THIRD DIVISION
Docket No.
MW-26670
89-3-85-3-415
The Third Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Trackman L.
J. Fulkrod to fill a temporary vacancy as cook in Gang 56233 on July 27, 28,
29, 31 and August 1, 1983 instead of calling and using Cook T. C. Wise who was
senior, available, willing and qualified to fill that vacancy (System Docket
CR-627).
(2) Because of the aforesaid violation, Cook T. C. Wise shall be allowed forty-two (42) hours of
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.
The relevant facts of this Claim are not in dispute. Claimant is
senior to L.J. Fulkrod in the Camp Cook Class. L.J. Fulkrod is senior to
Claimant in the Trackman class.
On July 25, 1983, Carrier required a Camp Cook for Gang 56233. It
contacted M.S. Swanson, who held seniority in that class, to determine his
availability to fill the position. On August 1, 1983, M.L. Swanson elected
not to fill that position, whereupon Claimant was placed in it. However, in
the interim period from July 27 to August 1, 1983, L.J. Fulkrod, who was then
working as a Trackman, was upgraded to the Camp Cook position.
As a result of Carrier's action, the Organization filed this Claim,
seeking five days' (42 hours) pay for Claimant at the regular rate. Carrier
timely denied the Claim. Thereafter the matter was handled in the usual manner
on the property. It is now before this Board for adjudication.
Form 1 Award No. 27845
Page 2 Docket No. MW-26670
89-3-85-3-415
The Organization maintains that as the Senior Camp Cook, Claimant
should have been called to fill the temporary vacancy while M.S. Swanson was
deciding if he wanted that position. In support of this contention, the Organization insists that po
given to those available and qualified employees who hold seniority in the
class at issue. Since Claimant held more seniority as a Camp Cook than L.J.
Fulkrod, the Organization asks that the Claim be sustained.
Carrier, on the other hand, asserts that it complied with the Agreement under the facts of this
permits it to fill positions on a temporary basis, pending award. Furthermore, it argues, Section 4(
class to be upgraded to the higher position temporarily. In fact, Carrier
insists L.J. Fulkrod, holding seniority as a Trackman was upgraded in this
manner. Therefore, Carrier argues that it strictly followed the seniority
rules in this dispute. Accordingly, it asks that the Claim be rejected.
After careful review of the record evidence, we are convinced that
the Claim must be sustained. Section 1 of Rule 3 makes clear that the term
"seniority" means first, seniority in the class in which the assignment is to
be made..." _i.e. in the Camp Cook class. Nothing in Section 4(a) contradicts
this principle. Instead it simply provides that in filling temporary vacancies, the most senior <
rated one, will be given preference. Nothing in that provision precludes furloughed employees who ho
class from being given preference for a temporary vacancy. As such, the fact
that L.J. Fulkrod had seniority over Claimant as a Trackman is simply irrelevant, since the vacancy
days in question. Accordingly, and far the foregoing reasons, the Claim must
be sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
!~
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1989.