C:\MYDOCU~1\SCHEDU~2\3-28032.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28032
THIRD DIVISION Docket No. CL-27553
89-3-86-3-829
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood

(GL-10146) that:

(a) Carrier violated the rules of the current Clerks' Agreement at Kansas City, Kansas, on October 7, 1985, when it failed and/or refused to allow J. E. Mitchell, Stat
(b) J. E. Mitchell shall now be compensated eight (8) hours' pay at the rate of Relief 5 Position No. 7795 for October 7, 1985, in addition to any other compensation she may have received for this day."

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.

Claimant, with a seniority date of April 22, 1974, in October 1985 was an employee in "off-in-force-reduction" status, with a notice of availability on file under Rule Kansas. Commencing Monday, September 30, 1985, she protected a short vacancy on Position No. 6051, 7:00 AM - 3:00 PM, Monday-Friday. Claimant was released from that short vacancy at 3:00 PM on Saturday, October 5, 1985, on account she had worked forty (40) straight time hours in the previous workweek. On Sunday, October 6, 1985, Carrier filled a short vacancy on Relief Position No. 5, occasioned by the regular incumbent's vacation. J. E. Jackson, an employee junior to Claimant in "off-in-force-reduction" status, was assigned to that short vacancy, even though she was at that time marked off due to illness. As of Sunday, October 6, 1985, Claimant was not in line for that "secondary" short vacancy under the terms of Rule 14-C(1) or 14-F, because she had worked
Form 1 Award No. 28032 Page 2 Docket No. CL-27553 89-3-86-3-829 forty hours in the prior workweek. Therefore, Carrier correctly called the senior regular assigned employee J. C. Carothers, with seniority date of November 20, 1974, under Rule 14-C(2) to fill the secondary vacancy commencing Sunday, October 6, 1985. Later on that Sunday evening, at 11:30 PM, Claimant attempted to displace onto the "secondary" s Carrier declined that request on grounds that the short vacancy was then physically occupied by Caro Friday, October il, 1985, J. E. Jackson returned from sick leave and took over protection of the short term vacancy on Relief Position No. 5, at which time senior employee J. C. Carothers returned to her regular assignment. In the meantime, after Claimant's attempted displacement was quashed on Sunday, October 6, 1985, she marked off for Monday, October 7, 1985, for "personal reasons." Claimant then elected to protect an altogether different short vacancy commencing Tuesday, October 8, 1985. She also filed the present Claims seeking earnings of Relief Position No. 5 for October 7, 1985, to which she claimed entitlement under Rule.14-F of the Agreement.

The Rule most pertinent to this case is Rule 14, reading as follows:

"RULE 14 - FILLING SHORT VACANCIES

14-A. Vacancies of 15 work days or less duration shall be considered 'short vacancies' and, if to be filled, shall be filled as hereinafter provided in Rule 14.

14-B. Employes hereafter hired must, for 180 consecutive days following the date they establish assigned, for short vacancies and vacation relief and will be called under the provisions of Rule 14-C and must promptly report for duty or forfeit all seniority rights. Off-in-force reduction employes with seniority in excess of 180 days, who desire to be used short vacancies and vacation relief, must file written notice of availability with their employing officer, with copy to the Division Chairman, designating points and grades of work (as defined in Rule 2) for which they will make themselves available. In the application of this Rule, Grades 1 and 2 are considered one grade. Notices of availability may be changed and/or withdrawn by giving ten days written notice to parties receiving original notice. Those with notice on file, will be called as provided in Rule 14-C and must promptly report for duty. The senior qualified off-in-force-reduction employe available at the point where the vacancy exists may be used on a day to day basis pending arrival of the

Form 1 Award No. 28032 Page 3 Docket No. CL-27553 89-3-86-3-829 senior off-in-force-reduction employe called for such vacancy. 14-C. When providing short vacancy relief the fol lowing order of precedence will be observed: (1) By calling the senior qualified off-in-force reduction employe available at straight time rate not then protecting some other vacancy. (Such off-in-force-reduction employe not there by to have claim to work more than 40 straight time hours in his work week beginning with Mon day). (2) By using the senior qualified regularly assigned employe at the point who has served notice in writing of his desire to protect such service. 14-D. If the above alternatives do not provide an occupant for the short vacancy, it may be filled without regard to the seniority rules of this Agreement; however, when the vacancy is protected on an overtime basis (other than overtime that may accrue to an employe filling the vacancy under provisions of Rule 14-C), the following shall apply: (1) If the vacancy is on a rest day relief posi tion the regular occupants of the positions being relieved shall protect the rest days of their own position if they so desire.

(2) Vacancies, including vacancies on rest day

relief positions not filled by (1) above,

shall by protected on a day to day basis

by the senior qualified and available em

ploye in that class of service at the point

who has served notice in writing of his de

sire to protect such service. Such employe

is not to be considered available to pro

tect such service on any day it would prevent

him from protecting his own assignment.

14-E. If the above alternatives do not provide an occupant for the short vacancy, it may be filled by forcing the junior qualified and available off-in-forcereduction employe to protect the vacancy.

14-F. An off-in-force-reduction employe, upon being relieved from a short vacancy due to having 40 straight time hours in his work week beginning with Monday or upon completion of a short vacancy may, if request is made within 72 hours, place himself

Form 1 Award No. 28032 Page 4 Docket No. CL-27553 89-3-86-3-829 short vacancy (including the one from which relieved) oc cupied by a junior off-in-force-reduction employe, except such placement shall not be permitted until such senior off-in-force-reduction employe can assume the position without working in excess of eight hours on any day or 40 straight time hours in his work week beginning with Mon day. A junior off-in-force-reduction employe affected by such placement may then have the same rights. NOTE 1: A regularly assigned employee used under the applicable provisions of Rule 14 will: (a) be paid time and one-half for time worked in excess of 40 hours or on more than five days in the work week of his regular assignment in moving to the short vacancy. (b) assume the rest days of the assignment on which he is protecting the short vacancy. (c) not be paid time and one-half for time worked in excess of 40 hours or on more than five days in a work week in returning to his regular assign ment. NOTE 2: An off-in-force-reduction emloyee used under the applicable provisions of Rule 14 will: (a) be paid time and one-half for time worked in excess of 40 hours or on more than five days in any seven-day period beginning with Monday. (b) assume the rest days of the assignment on which he is protecting the short vacancy." In the facts of the case, Rule 14-F does not support this Claim. If the "secondary" short term vacancy had been occupied on Monday, October 7, 1985, by an "off-in-force-reduction employee" junior to Claimant, her displacement request should ha vacancy on that day was the senior employee Carothers, who had validly been assigned to the short term vacancy under Rule 14-C(2). Nothing in the express language of Rule 14-F or any other cited rule gave Claimant the right to displace the senior employe past practice of such displacements persuasively demonstrated on this record.

A W A R D

Claim denied. Form 1 Award No. 28032 Page 5 Docket No. CL-27553 89-3-86-3-829 NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attes . ancy J D r - Executive Secretary Dated at Chicago, Illinois this 10th day of August 1989.