Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27913
THIRD DIVISION Docket No. MW-26923
89-3-85-3-701
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it used Machine Operators J. Cervantes and H. L. Ras
instead of furloughed Machine Operator J. D. Swearengin on various dates from
October 22, 1984 through January 18, 1985 (System Files MW-85-31/422-91-A and
MW-85-37/423-87-A).
(2) Claimant J. D. Swearengin shall be allowed four hundred (400)
hours of pay at the relief machine operator's straight time rate because of
the violation referred to in Part (1) hereof."
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 Claimant who holds seniority as a Roadway Machine Operator, was
furloughed during the period of time covered by this claim. The Carrier used
active employees to fill vacation and other vacancies for which the Organization contends Claimant s
Although the parties had handled this dispute as two separate claims
on the property, the Organization consolidated them for presentation to this
Board over the objection of the Carrier. As the claims involve the same Claimant and the same princi
claims in the interest of expeditious handling (Third Division Award 19750).
From October 29, through November 16, 1984, the Carrier used Roadway
Machine Operator Cervantes to fill a vacation vacancy on a Trackliner. Cervantes was regularly assig
Form 1 Award No. 27913
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89-3-85-3-701
work. From November 19, through November 23, 1984, Cervantes was used on a
vacation vacancy on the Link Belt Crane while his Weedmower was still idle.
From November 26 through December 7, 1984, Cervantes was assigned to a front
end loader, but it, too, was idle, and he filled a vacation vacancy on a
Trackliner. The front end loader was again idle from January 7 through January 18, 1985, and Cervant
From November 19, through December 27, 1984, Roadway Machine Operator
Minatrea was regularly assigned to a Bob Cat Loader, which was idle for repairs. The Carrier used Mi
as a temporary vacancy on a boom truck.
From December 10, through December 14, 1984, Roadway Machine Operator
Smith filled a vacation vacancy on a Heavy Duty Truck. The record does not
disclose the status of Smith's regular assignment during this week.
From December 13, through December 21, 1984, Track Foreman Ducket ran
Roadway Machine Operator Rasco's Tamper while the latter was off for vacation
and personal days.
The Organization contends that if the Carrier chooses to have the
work of vacationing employees performed, it is limited to either distributing
such work among two or more employees (subject to the limitation that no single employee may perform
use of a vacation relief employee in accordance with the February 1, 1984 Memorandum of Agreement. T
of such positions and that applicants be "qualified to operate machines on
which relief work is contemplated." The Organization also relies upon Section
1(g) of Article 3, Force Reductions, which reads:
"When forces are increased, or in filling temporary
vacancies, senior laid off employees in their respective rank, seniority group and seniority distric
The Carrier's chief defense is that the Agreement gives it authority
to have regularly assigned employees perform other duties. It relies upon
Section 14 (a) of Article 16, which governs the compensation of an employee
assigned to work on a higher rated position, as well as Section 4 of Article
17, which reads:
"Employees of roadway machines will be required to
work with gangs under the foreman in charge and
perform any work they are able to handle under the
direction of the foreman when their machine is not
actually being used. Machines will not be idled
for the sole purpose of supplementing the force on
a gang.'
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This Board concludes the Organization is in error in arguing the
Carrier is so limited in filling vacation vacancies. Paragraph 10(a) of the
National Vacation Agreement, in fact, governs the rate of pay of a single
employee designated to fill a vacation vacancy, and provides a special Rule in
the case the vacancy is filled by an assigned vacation relief employee. The
Carrier must, however, have some basis in the Agreement for the movement of an
employee from his regularly assigned position. While Article 16, Section
14(a) provides a basis of compensation, it does not authorize the movement of
an employee from his regular assignment.
A special case, however, is provided by Article 17, Section 4, quoted
above. The record shows the roadway machines regularly operated by Cervantes
and Minatrea were idle during the time they were covering vacation vacancies.
While the Organization asserted the machines were idled for the sole purpose
of making the operators available for the vacancies, there is no evidence in
the record to support this assertion. Accordingly, that portion of the claim
is denied.
With respect to that portion of the claim wherein Track Foreman
Ducket worked Machine Operator Rasco's Tamper, the Carrier denied the claim
solely on the basis that Ducker was never authorized to perform this work.
There was, however, no denial that he did so. The Board must conclude, therefore, that the vacancy w
furloughed employee, should have been called. This finding is consistent with
Third Division Award 25209 involving the parties herein. Third Division Award
26171 must be distinguished as it dealt with a bulletined vacancy temporarily
filled by an employee who volunteered to do so. Accordingly, this portion of
the claim is sustained.
Finally, the Board does not have a sufficient record before it to
reach any conclusion with respect to the portion of the claim wherein Smith
operated the Heavy Duty Truck. Accordingly, that portion of the claim is
dismissed.
The Carrier argues that portions of the Organization's claim had been
abandoned because the Statement of Claim before the Board referred only to the
use of Machine Operators Cervantes and Rasco. We believe the substitution of
Ducket's name for Rasco was a harmless error and that the Carrier was sufficiently put on notice tha
Claim sustained for the period from December 13, 1984, through
December 21, 1984.
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A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
0
00,
Nancy J. v - Executive Secretary
Dated at Chicago, Illinois, this 18th day of May 1989.