Form 1 NATIONAL RAILROAD ADJUSTMENT HOARD Award No. 28563
THIRD DIVISION Docket No. MW-28364
90-3-88-3-143
The Third Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned junior
employes T. C. McCarty and B. J. Taylor, instead of Messrs. J. H. Swaim and
S. E. Swaim to fill No. 1 Carpenter's positions on B&B Gang 4115 at Tyler,
Texas, from December 29, 1986 through March 13, 1987 (System File MW-87-11CB/53-1003).
(2) As a consequence of the aforesaid violation, Messrs. J. H. Swaim
and S. E. Swaim shall each be allowed four hundred forty (440) hours of pay at
the No. 1 Carpenter's rate."
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 basic facts of this case are set forth as follows: Carrier
notified Claimants on September 5, 1986, that work was available for them in
two temporary B 6 B carpenter positions. Since Claimants were on furloughed
status at the time and were working in full time non-railroad jobs, they informed Carrier that they
short-term temporary assignments. Two junior employees were recalled pursuant
to Article 3(g) and assigned the temporary positions. The work was performed
under an authorization for a Special Building Project, which ran until December 30, 1986. Notices we
apprising them that said temporary positions would be abolished on December
Form 1 Award No. 28563
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90-3-88-3-143
30, 1986. Carrier received budget authorization to continue the project for
two more months and, accordingly, it re-established the two temporary B S B
carpenter positions. Since it was under the impression that Claimants would
not accept recall to t aporary positions, it assigned the two junior employees
to the jobs. The positions later were effectively abolished on March 13,
1987. In the meantime, the Organization filed a Claim on behalf of Claimants
on February 24, 1987, wherein it charged that Carrier failed to readvertise
the positions as permanent or regular in accordance with the applicable provisions of the Agreement.
effective in September 1986, as temporary and never advertised as permanent
positions. It also took issue with Carrier's contention that the two B 6 B
carpenter positions were abolished on December 30, 1986. It asserted that
Carrier failed to attach the abolishment notice.
Carrier contends that when it assigned the junior employees to the
positions in September 1986, said assignments were scheduled to expire in
December 1986. It observed that it issued abolishment notices on December 19,
1986, and did so on the understanding that the project would continue until
December 30, 1986. When it later received authorization to continue the project for two additional m
Claimants had explicitly rejected temporary employment. It disputes the Organization's position that
days amounted de facto to permanent positions, arguing instead that the two
jobs were abolished on December 30, 1986.
In considering this case, the Board concurs with Carrier's position.
Initially, when the two B 6 B temporary carpenter positions were available
they were first offered to Claimants in accordance with the requirements of
Article 3(g). Claimants were employed in full-time non-railroad jobs and
apprised Carrier that they did not want to relinquish full-time jobs for temporary work. There were
recalled from furlough status, that the assignments were other than temporary,
and the positions were effectively abolished on December 30, 1986. On December 29, 1986, when Carrie
predicated upon an extension of the funding for the Special Building Project,
the two junior employees were assigned to the positions. At first glance it
appears like an unbroken continuation of employment, but there was a distinct
break in the assignments. We have no evidence that the Special Building Project was not going to exp
notice, dated December 19, 1986, reflects this expectation. Shortly thereafter, when the Special Bui
Bulletin of Advertisement (#I2-86) announced temporary positions and said positions were assigned to
Carrier to offer the temporary work to the junior employees. The positions
were effectively abolished on March 13, 1987.
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest ..
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1990.