Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28573
THIRD DIVISION Docket No. MW-27121
90-3-86-3-176
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Grand Trunk Western Railroad Company (The Detroit,
Toledo and Ironton Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned and used
Trackman J. Cross instead of Trackman-Truck Driver R. L. Shoemaker to fill a
vacation vacancy of trackman-truck driver on Section 11 at St. Paris, Ohio on
September 18, 19, 20 and 21, 1984 (Carrier's File 8365-1-184).
(2) Furloughed Trackman-Truck Driver R. L. Shoemaker shall be
allowed thirty-two (32) hours of pay at the trackman-truck driver's straight
time rate and one and one-half (1 1/2) hours of pay at the trackman-truck
driver's time and one-half 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.
It is the Organization's position that Carrier violated the controlling Agreement, particularly
assigned on a temporary basis a trackman to perform 32 hours of trackman-truck
driver work at the straight time rate and one and one-half hours work at the
time and one-half overtime rate. The trackman performed the work to fill a
vacation vacancy of a trackman-truck driver on Section 11 at St. Paris, Ohio
on September 18, 19, 20 and 21, 1984. The Organization asserted during the
handling of this case on the property that Claimant, who holds seniority as a
trackmantruck driver and who was on furlough status at the time, should have
been called for this work since Carrier was effectively precluded from using
employees who did not hold seniority in the Trackman-Truck Driver Group pursuant to the seniority pr
Form 1
Page 2
Award No. 28573
Docket No. MW-27121
90-3-86-3-176
Carrier argues that it had the right to utilize employees already in
service rather than to recall furloughed employees. Relying on Rule 26, which
states, "An employee may be temporarily or intermittently assigned to different classes of work with
use a furloughed employee in order of seniority on temporary positions, but
there is no requirement that it must do so. Thus, Carrier argues that it was
permissible to temporarily upgrade the trackman since, by corollary, it was
not required that Claimant be recalled from furlough status.
In our review of this case, we concur at the outset with Carrier's
contention that the Organization has advanced certain arguments relating to
Claimant's status which are at variance with the position taken by the Organization during the handl
tenet of the Railway Labor Act that the Board is unable to consider argument
or evidence not included on the property. (Third Division Award 27328).
Therefore, we will restrict our consideration of this case to the issues which
were advanced prior to submission of the matter before the Board.
So stating, we find the controlling principles set forth in a series
of prior Awards of this Board are dispositive of the matter at hand. In Third
Division Awards 28047, 28048, 28050, 28051, 28052, 28053, 28054 and 28056, the
Board concluded in a line of similar cases that Carrier is not required to use
furloughed employees for short term vacancies such as that in dispute here.
AS
in those Awards, we note that the Employees have not cited any rule obligating Carrier to follow
fill temporary vacancies from the furloughed list but it has not obligated
itself to do so. Absent any specific rule support for the Organization's
theory, we must rule to deny the Claim.
Claim denied.
Art
i
Nancy J. v -Executive Secretary
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of October 1990.