C:\MYDOCU~1\SCHEDU~2\3-29344.htm

Form 1 r;ATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29344 THIRD DIVISION Docket No. TD-29414 92-3-90-3-336 :he Third ~=:ision consisted of the regular members and in addition Re_eree John C. Fletcher when award was rendered. ~;F,merican Train Dispatchers Association PARTIES TD DISPUTE:

(:onsolidated Rail Corporation

STATEMENT OF CLAIM:

"rl1 - CLAIM OF C. T. NISZCZAK - CARRIER SYSTEM DOCKET TD-11

Maim 8 hrs pay at time and one half

the following days arc. Jr Trn

:_spatcher D. H. Wheat diverted off Regular

Jc'b

to work these days at time and one half

:an 22 and 23, Jan 29 and 30, Feb 5 and 6

7'e'o 12 and 13, Feb 19.

''_olation of Rule 5, Section 2, Paragraph E, Item 1

!12 - CLAIM OF G. T. NISZCZAK - CARRIER SYSTEM DOCKET TD-12

Claim 8 hours pay at Time and ace half for .'larch 19th and 20th a=c. Jr. Train Dispatcher D. H. Wheat diverted off Regular position to ~ork my Scheduled Rest Days a_ Time and one half

#3 - CLAIM OF J. B. KUCZEK - CARRIER SYSTEM DOCKET TD-13

Time claims for Tues., January 17th, Wed., January 18th, Tues. January 24th Wed. January 25th, Tues. January 31st, Wed. February 1st, Tues. February 7th, Wed. February 8th, and Ties. February 14th, Wed February 15th, Tires. February 21st, 28th, March 7th. Total 12 days acct rest days and not called to work. D. Wheat worked for overtime violation Rule 5 Sect 2 par. 1"

Form 1 Award No. 29344
Page 2 Docket No. TD-29414
92-3-90-3-336
FINDINGS: The Third Civision 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.

As part o_ -he closure of its Toledo, Ohio, train dispatching office, and the consolidati:: of work into the Dearborn, Michigan, office, Carrier bulletined Relief a: to relieve the Detroit (Toledo) North Train Dispatchers. This position was awarded to V. A. Feldman, who was previously assigned to the first trick Toledo East Train Dispatcher position. Feldman was, however, retained on his previDus as vacancy was not yet qualified. This required the Carrier to fill Relief II5 until Feldman would be released. Carrier did so by directing D. H. Wheat, who had been awarded t:,e position of North/South Assistant Chief Dispatcher at Dearborn, to perfor= the relief work. In accordance with Rule 12 of the Agreement, Wheat was pai~ at the overtime rate. The Organization contends Claimants, who have been used on t-.eir rest days. The Organ=nation relies upon Rule 5, Section 2 (a) and (e) of the Agreement, which rea3, in pertinent part, as follows:

''Section. 2. - Extra Work

(a) Extra work shall consist of the following:

1. Relief requirements of less than five (5) days' work per week except as provided in Section 1, paragraph (b) of this rule.

2. Vacancies and positions not filled in accordance with Rule 4.

(e) ;Where, in the performance of extra work, no extra employees are available who can be used at the straight time rate of pay and it therefore becomes necessary to assign an employee who must be paid at the overtime rate, assignment will be made in accordance with the following order:

1. Available incumbent on his rest days."

Form 1 Award No. 29344 Page 3 Docket No. TD-29414 92-3-90-3-336 Carrier first denies Rule 5 is applicable, asserting Wheat was not performing extra work, but, rather, work of a regular position which was advertised and awarded under Rule 4 of the Agreement. Secondly, Carrier argues Wheat was used in accordance with Rule 12, which reads, in part, as follows:

"RULE 11 - SERVICE OTHER THAN REGULAR ASSIGNMENT

(a) ~, regular assigned train dispatcher required by the Company to perform service or work temporarily at other than his regular position shall be reimburses `:r any actual and necessary expenses incurre due to sich change. If such temporary assignment pays a -.igher rate than his regular position, the higher -ate will be allowed.

(b) regular assigned train dispatcher required to tem::rarily fill a position covered by this Agreement c-. a trick other than the trick to which h regular'-; assigned shall be compensated at the overtime rate of the position so filled . . . .

Because the work performed by Wheat was on tricks other than those to which he was assigned, he was compensated at the overtime rate on each date of claim. Carrier's reliance upon Rule 12 is misplaced. The Rule governs compensation for empl:gees workin does not establis- t,.e circumstances whereby Carrier is privileged to move such employees to :cner positions, nor does it establish the manner for filling vacancies. We do not :gree with Carrier that Rule 5 does not apply. This was a vacancy that was nit filled in accordance with Rule 4. Although Feldman was awarded the positi:n of Relief °v5 pursuant to Rule 4, there was a vacancy created by Feldman :ot being allowed to take up service on that position. Wheat was not placed on Relief #5 pursuant to Rule 4. Other than Rule 12, Carrier has offere_ no other support for moving Wheat to that position. Carrier ctes not deny Wheat worked each day of claim at the overtime rate. Therefore, _ection 2 (e) of Rule 5 applies, and Claimants should have been used as the incumbents on their rest days. Claimants are entitled to eight hours' pay fir each date of claim, but at the straight time rate.

A W A R D

Claim sustained in accordance with the Findings. Form 1 Award No. 29344 Page 4 Docket No. TD-29414 92-3-90-3-336 NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: i y J. Executive Secretary Dated at Chicago, Illinois, this 25th day of August 1992.