Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28813
THIRD DIVISION Docket No. MW-28224
91-3-87-3-808
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:
(CSX Transportation, Inc. (former Seaboard System
( Railroad)
STATEMENT OF
CLAIM: "Claim
of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned and used
junior employes K. F. Jones and E. P. Horton instead of Mr. J. F. Turner, Jr.
to fill a vacation vacancy in the foreman inspector position on Force 5504
from December 4 through December 20, 1985 [System File JFT-86-10/12-13(86-169)
I].
(2) Claimant J. F. Turner, Jr. shall be allowed the difference
between what he should have received as a foreman inspector and what he was
paid at the apprentice foreman rate for each work day from December 4 through
December 20, 1985 and he shall be compensated for all overtime wage loss
suffered as a result of the violation referred to in Part (1) above."
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 established seniority as Trackman on the Savannah-Florence
Division Seniority District on April 19, 1971. He was promoted through the
ranks and was elevated to Foreman, establishing seniority on July 2, 1973.
The Organization asserts that because of the Carrier's reduction in force and
because the Claimant's seniority was not sufficient to allow him to hold a
regular assignment as a Track Foreman or Assistant Foreman, he placed himself
in a regularly assigned position as an Apprentice Foreman on Force 5513.
Form 1 Award No. 28813
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91-3-87-3-808
A vacation absence occurred on December 4, 1985, when a Foreman
inspector, assigned to Force 5504 at North, South Carolina, began his
scheduled vacation which extended through December 31, 1985. Claimant
requested to fill the vacation absence of the Foreman Inspector, but was not
permitted to do so based on Carrier's determination that he was regularly
assigned and working his assigned position. Instead, Carrier filled the
vacation absence by recalling from furlough junior employees. In its correspondence concerning this Claim on the property, Carrier asserted:
"It has never been our policy to search the Seniority
Roster and locate the senior person to protect a
vacancy for vacations, but rather to use qualified
furloughed employees or qualified persons working
close by the vacancy if it is necessary to protect
the vacancy. This was the procedure followed in
this instance."
The Organization contends that Carrier acted improperly and in
violation of the Agreement by failing to assign Claimant, the more senior
employee, to fill the vacation absence. In support of its position, the
Organization relies upon Rule 8, which states as follows:
"Rule 8
BULLETINING VACANCIES AND NEW POSITIONS
,t ,t ,t
Section 2
Vacancies of seven (7) calendar days, or less, may
be filled by using any eligible employee of the group
and seniority district; however, preference will first
be given to employees of the rank in which the vacancy
exists who may be out of work or working in a lower
rank account reduction of forces.
This section will not apply to temporary vacancies
due to vacations provided for in the 'Vacation Agreement' signed at Chicago on December 17, 1941.
Section 3
All temporary vacancies of more than seven (7)
calendar days' and less than thirty-one (31) calendar
days' duration will be filled as follows:
First, by using the senior employee of the rank
and group on the district who has seniority in the rank
in which the vacancy occurs, who may be out of work
or working in a lower rank account reduction of forces."
In its submission before the Board, the Organization also cites
"Appendix C" of the National Vacation Agreement, which reads in pertinent part:
Form 1 Award No. 28813
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"APPENDIX 'C'
NATIONAL VACATION AGREEMENTS
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(b) As employees exercising their vacation privileges will be compensated under this agreement during
their absence on vacation, retaining their other rights
as if they had remained at work, such absences from
duty will not constitute 'vacancies' in their positions
under any agreement. When the position of a vacationing
employee is to be filled and regular relief employee.is
not utilized, effort will be made to observe the principle
of seniority. (emphasis added)
After careful review of the record in its entirety, the Board is of
the view that the Organization has not met its burden of proving a Rule
violation. Rule 8 is the applicable Rule with reference to the filling and
bulletining of vacancies and new positions. Because the vacation absence at
issue here was for more than seven days, we must refer to Section 3 of Rule 8.
That section specifies that vacancies of more than seven calendar days but
less than thirty-one calendar days shall be filled, first, by using the senior
employee of the rank and group on the district who has seniority in the rank
in which the vacancy occurs, who may be out of work or working in a lower rank
because of a reduction in force, and, secondly, if no such employee is available, the vacancy is filled through the general promotion rules.
In the instant case, the Organization argued that Claimant should
have been used to fill the temporary vacation absence because he was the
senior available qualified employee working in a lower rank on account of
force reduction. However, no evidence was ever forthcoming, as we view the
record, to support that contention. Moreover, Carrier vigorously asserted
that Claimant had worked a temporary position as a Foreman Inspector, but
returned to his regular assignment at the end of the temporary vacancy and,
accordingly, he was not working in a lower rank due to force reduction as
alleged by the Organization. Absent some evidentiary basis to support its
allegation and the rebuttal offered by Carrier on this crucial point, we can
only conclude that the Organization's mere reiteration of argument cannot
substitute for proof. Therefore, its contention that Claimant should have
been selected cannot be deemed persuasive. Carrier acted properly and in
accordance with Rule 8, we find, by using employees to fill the temporary
vacancies who were furloughed due to a reduction in force and held seniority
in the rank and group in which the vacancy occurred.
Nor does the reference to "Appendix C" of the National Vacation Agreement dictate a different result. During the handling of this dispute on the
property, there was no reference made by the Organization to this particular
contractual provision. Under these circumstances, it is well settled that
the failure to raise the issue on the property now bars its consideration by
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91-3-87-3-808
this Board. Equally important, even if we were to consider the contractual
provision cited, it would not be deemed controlling. Appendix C simply
expresses the general intention of the parties to fill vacation absences by
seniority. The more specific application of that principle, found in Rule 8,
is what governs in the instant case.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ev -Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1991.