Form 1 ;NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28906
THIRD DIVISION Docket No. CL-28519
91-3-88-3-341
The Third Division consisted of the regular members and in
addition Referee Edwin H. Benn 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-10298) that:
CLAIM N0. 1:
(a) Carrier violated the rules of the current Clerks' Agreement at
Topeka, Kansas on July 17, 1987, when it failed and/or refused to call Claimant Berner for Head Cler
(b) Claimant Berner shall now be compensated for eight (8) hours' pay
at the time and one-half rate of Position No. 6170, in addition to any other
compensation Claimant may have received.
CLAIM NO 2:
(a) Carrier violated the rules of the current. Clerks' Agreement at
Topeka, Kansas on July 17, 1987, when it failed and/or refused to call Claimant Bollinger for Lead H
(b) Claimant Bollinger shall now be compensated for eight (8) hours'
pay at the time and one-half rate of Position No. 6158, in addition to any
other compensation Claimant may have received."
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.
Form 1 Award No. 28906
Page 2 Docket No. CL-28519
91-3-88-3-341
This dispute concerns the allegation that the Carrier failed to follow the order of call procedu
provide:
"RULE 14 - FILLING SHORT VACANCIES
14-A. Vacancies of 15 work day 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
make themselves available, except while regularly assigned, for short vacancies and vacation relief
called under the provisions of Rule 14-C and must promptly report for duty or forfeit all seniority
180 days, who desire to be used for 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 them
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 noti
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 senior off-in-forcereduction employe called for such vacancy.
14-C. When providing short vacancy relief the following order of precedence will be observed:
(1) By calling the senior qualified off-in-forcereduction employee available at straight time
rate not then protecting some other vacancy.
(Such off-in-force-reduction employe not thereby to have claim to work more than 40 straight
time hours in his work week beginning with
Konday).
(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.
Form 1 Award No. 28906
Page 3 Docket No. CL-28519
91-3-88-3-341
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 position
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 be pro
tected on a day to day basis by the senior quali
11ed and available employe in that class of ser
vice at the point who has served notice in writ
ing of his desire 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 oc
cupant for the short vacancy, it may be filled by forcing
the junior qualified and available off-in-force-reduction
employee to protect the vacancy.
14-F. An off-in-force-reduction employe, upon being
relieved from a short vacancy due to having worked 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 upon another short
vacancy (including the one from which relieved) occupied
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 with
out working in excess of eight hours on any day or 40
straight time hours in his work week beginning with Monday.
A junior off-in-force-reduction employe affected by such
placement may then have the same rights."
Claimants Berner and Bollinger hold seniority dates of September
20, 1967, and May 4, 1955 respectively. At the time these disputes arose,
Claimant Berner was regularly assigned to Machine Operator Position No. 6187
with a schedule of 11:00 P.M. to 7:00 A.M., Monday through Friday. Claimant
Bollinger was regularly assigned to Position No. 6177 with a 3:00 P.M. to
11:00 P.M. schedule and with the same scheduled days as Berner.
Form 1 Award
No.
28906
Page 4 Docket
No.
CL-28519
91-3-88-3-341
On Friday July 17, 1987, a short vacancy existed on Head Clerk
Position
No.
6170 (3:00 P.M. to 11:00 P.M.) as a result of the regularly
assigned occupant being off on a personal leave day.
No
qualified off-inforce-reduction employee was available at the straight time rate not then protec
called the senior qualified and available employee at the point who had served
notice of a desire to protect short vacancies such as Position No. 6170. However, he was not availab
such service in accord with Rule 14-C(2). Claimant Berner had a request on
file under Rule 14-D(2) to fill this short vacancy. However, Claimant Berner
was not called. Instead, the Carrier moved an off-in-force-reduction employee
from Machine Clerk Position
No.
6122 (3:00 P.M. to 11:00 P.M.) which she was
protecting at the time to Head Clerk Position
No.
6170 for July 17, 1987.
The facts concerning Claimant Bollinger are similar. On July 17,
1987, a short vacancy existed on Lead Head Clerk Position No. 6158 as a
result of the regularly assigned occupant being off on union business. As
with Claimant Berner, no qualified off-in-force-reduction employee available
at the straight time rate not then protecting some other vacancy existed.
Further, there were no employees meeting the qualifications of Rule 14-C(2).
Although Claimant Bollinger had served a Rule 14-D(2) notice for Position No.
6158, the Carrier did not call Claimant Bollinger for the short vacancy, but
instead required an off-in-force-reduction employee who was assigned to protect Machine Operator Pos
Therefore, the record sufficiently establishes that off-in-force
reduction employees were working at and protecting other vacancies when the
Carrier transferred them to fill the short vacancies in dispute before using
Claimants. Under Rule 14-C-(1) those employees could not be transferred over
Claimants in the positions in dispute because they were "then protecting some
other vacancy."
The Carrier argues that with respect to Claimant Berner's claim (and,
Claimant Bollinger's claim as well, Carrier Submission at 6-7. emphasis in
original):
...Claimant Berner was not called under the pro-
visions of Rule 14-D(2) as Carrier elected not to
fill the vacancy on an overtime basis. Bather,
Carrier elected to use the first part of Rule 14-D
which is permissive and gives the Carrier two op
tions: (1) to fill the vacancy without regard to
the seniority rules of the Agreement (at the straight
time rate) or two (2) fill one position on an overtime
basis under Rule 14-D(1) or(2)."
Form 1 Award
No. 28906
Page 5 Docket
No. CL-28519
91-3-88-3-341
We disagree with the Carrier's reading of the required progression
under Rule
14.
Under Rule
14-C,
the Carrier was obligated ("the following
order of precedence will be observed" [emphasis added]) to first call the
senior qualified off-in-force-reduction employee available at the straight
time rate "not then protecting some other vacancy" and second, by using the
senior qualified regularly assigned employee who had a notice on file of a
desire to protect such service. Under Rule
14-C(1),
the Carrier could not use
either individual they used to cover the short vacancies at issue because,
as off-in-force-reduction employees, they were protecting other vacancies. At
the time one was protecting Machine Clerk Position No.
6122
and the other was
protecting Machine Operator Position
No. 6102.
By operation of the procedure,
the Carrier was then obligated to drop to Rule
14-C(2),
which mandated "using
the senior qualified regularly assigned employe at the point who has served
notice in writing of his desire to protect such service." After the senior
qualified employee was deemed unavailable for Position
No. 6170
and because no
other notices were on file pursuant to Rule
14-C(2)
and, similarly, because no
such notices were on file for Position
No. 6158,
it follows that the short
vacancies could not be filled under Rule
14-C.
The Carrier was therefore next
obligated to move on to Rule
14-D
("If the above alternatives do not provide
an occupant for the short vacancy
....").
The Carrier asserts, however, that its actions of transferring off-inforce-reduction employees a
dispute were taken in accord with the first part of Rule
14-D
("If the above
alternatives do not provide an occupant for the short vacancy, it may be filled without regard to th
been interpreted to mean that such provision superseded the clear provisions
of the Agreement ...[but] it has been the accepted understanding that the provision was intended to
rather than requiring it to be filled on an overtime basis." In support of
its position that the Carrier has previously accepted the Organization's interpretation and that off
an assigned vacancy to protect another vacancy in line with Rule
14-F,
the
Organization cites us to a February
11, 1985,
declination in another matter
where the Carrier stated that the Claimant therein was (emphasis added]:
"protecting a short vacancy on File Clerk Position
No.
6012
which commenced on October
8, 1984,
hence Claimant
was tied to this vacancy and was not available in the
event Carrier had decided to fill the short vacancy of
Position
No. 6001."
Therefore, the Organization has demonstrated that in the past the
Carrier has agreed with the position that similar employees protecting short
vacancies cannot be transferred to cover other short vacancies unless the procedure in Rule
14-F
is followed. In this matter, the Carrier has not rebutted
that showing. The Carrier's Rule
14
argument therefore cannot stand in this
case.
Form 1 Award
No.
28906
Page 6 Docket
No.
CL-28519
91-3-88-3-341
The Carrier's position that the first part of Rule 14-D gives it the
authority to transfer off-in-force reduction employees from one short vacancy
to another having been rejected, the operation of the process set forth in
Rule 14 must be continued. The facts show that Rule 14-D(1) is not applicable
to this case. Rule 14-D(2) then requires that vacancies "shall be protected
on a day to day basis by the senior qualified and available employe in that
class of service at the point who has served notice in writing of his desire
to protect such service." In these cases, those individuals were Claimants.
By not calling Claimants, the Carrier violated Rule 14-D(2).
The question now becomes whether Claimants are entitled to compensation for the failure to call
for work not actually performed. One line of authority adopts the rationale
that an overtime award is not appropriate where work is not actually performed
by the aggrieved employee. See e.g., Third Division Awards 26488 ("Since the
violation encompassed loss of York opportunity for Claimants they will be compensated at straight ti
("...
the appropriate rate of compensation for work not performed is at the
pro rata, straight time rate"). The other line of authority typified by Third
Division Award 13738 states that the employee suffering a loss of work opportunity as a result of vi
that amount the employee would have earned absent the contract violation.
We have considered the above arguments concerning the awarding of compensation at the straight t
compensation should be at the overtime rate. Here, as a result of the Carrier's violation of the Agr
that, by terms of the rules, were designated as overtime assignments. The
rule that was violated specifically was that provision requiring assignment of
the position on an overtime basis (Rule 14-D - ...when the vacancy is protected on an overtime basis
of the ability to work overtime due to the Carrier's failure to follow Rule
14, in order to make Claimants whole, compensation must be at the overtime
rate.
The Carrier's well-framed arguments on the amount of compensation do
not require a different result. First, Third Division Award 26919 is distinguishable from the instan
"While previous Awards have reached varying conclusions on this point, the Board finds in this i
appropriate. The Claimant was not inconvenienced by
having to perform the work, and the Carrier can by
credited with a sincere (if insufficient) effort to
meet the requirements of Appendix 'F'."
Form 1 Award No. 28906
Page 7 Docket No. CL-28519
91-3-88-3-341
We cannot say that the same mitigating factors exist in this matter.
Here, the Carrier took a position diametrically opposed to a previously stated
interpretation of its ability to transfer employees covering short vacancies
under Rule 14. See the Carrier's February 11, 1985, declination quoted above.
We are thus unable to find that the Carrier made "a sincere effort to meet the
requirements
..."
of Rule 14.
Second, the Carrier correctly argues that an established method of
resolution on the property for compensating loss of work opportunities is a
relevant consideration in formulating the remedy in these kinds of cases. In
this light, the Carrier cites us to Third Division Awards 28202 and 28186 on
this property which remedied the violations found at the straight time rate.
However, those matters did not involve violations of Rule 14-D(2) which specifically concerns overti
under Rule 32. Further, those Awards did not address a situation where the
Carrier gave a previous conflicting interpretation of the rule at issue. On
balance, we believe that our conclusion must remain that the loss of work opportunity in this case s
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
A
test:
Aw 01
t
-0 "Nancy J D er - Executive Secretary
Dated at Chicago, Illinois, this 29th day of August 1991.
CARRIER MEMBERS' DISSENT
TO
AWARD 28906, DOCKET CL-28519
(Referee Benn)
The predicate for the Majority's decision in this case
is a letter allegedly written by the Carrier on February 11,
1985. The majority construes that letter as a concession by
the Carrier that its assignments of work in this case were
in violation of the Agreement.
There are two serious problems with the Majority's
predicate.
First, the letter'of February 11, 1985, was never
presented by the Organization in the handling of the dispute
on the property. A review of the on-property correspondence
makes such fact undeniable. The letter was attached as an
exhibit to the Organization's Submission. It pertains to a
matter unrelated to the dispute, and the Organization did
not even suggest in its Submission that the letter was part
of the on-property handling of the case. Accordingly, the
Majority's conclusion that the Carrier "has not rebutted"
the implication of the letter is inappropriate as the
Carrier could hardly rebut something not raised.
Second, to add injury to the injury, when the Organization raised the letter in its Submi
context of arguing that the Carrier's work assignments were
not appropriate under Rule 14-C(1) of the Agreement. The
Carrier's position on the property, and before the Board,
however, was that the Carrier's action was in accordance
CM's Dissent to
Award 28906, Docket CL-28519
Page 2
with Rule 14-D of the Agreement. The Carrier did not
contend that Rule 14-C(1) was the basis of its action.
We thus have an Award that is based upon a letter that
was not presented on the property and which, even if it had
been presented, would have been irrelevant as not relating
to any issue involved in the dispute.
Finally, with respect to the precedent value of this
Award, inasmuch as the Majority relies upon a letter which
the Organization asserts is relevant only to Rule 14-C(1)
of the Agreement, the very most that can be said of this
Award is that it is a holding that when it is factually
determined that an off-in-force reduction employee is not
available because he is then protecting some other vacancy,
such employee is not subject to call under Rule 14-C(1).
IM. . Fingerhut
L: Picks'
M. C esnik
'14r4e5n
P. V. Varga
J. E. Yost