Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31814
Docket No. SG-31880
96-3-94-3-207
The Third Division consisted
of
the regular members and in addition Referee
James E. Mason when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPITTE:
(Southern Pacific Transportation Company
STATEMENT
OF CLAD
"Claims on behalf
of
the General Committee
of
the Brotherhood
of
Railroad Signalmen on the Southern Pacific Transportation Co. (SP):
CASE NO, I
Claim on behalf of W.B. Thomas for payment
of
eight hours at the straight
time rate for each day from September 7 to September 18, 1992, and on
behalf of E.O. Rosebure for payment
of
four hours at the straight time rate
for each day from September 7 to September 18 1992, account Carrier
violated the current Signalmen's Agreement, particularly Rule 76, when
it failed to assign an employee to relieve Claimant Thomas' position during
his vacation period. Carrier's File No. Sig-93-7. General Chairman's File
No. SWGC-525. BRS File Case No. 9302-SP.
CASE NO. 2
Claim on behalf
of
L.K. Wymore for payment of eight hours at the straight
time rate for each day from October 19 to October 30, 1992, and on behalf
of J .T. Pointer for payment of four hours at the straight time rate for each
day from October 19 to October 30, 1992, account Carrier violated the
current Signalmen's Agreement, particularly Rule 76, when it failed to
assign an employee to relieve Claimant Wymore's position during his
vacation period. Carrier's File No. Sig-93.8. General Chairman's File No.
SWGC-527. BRS File Case No. 9303-SP."
Form I Award No. 31814
Page 2 Docket No. SG-31880
96-3-94-3-207
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, rinds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier or employee 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 were given due notice
of
hearing thereon.
These claims involve an alleged violation by Carrier
of
the provisions
of
Rule 76
which reads as follows:
"RELIEVING FOREMEN AND MAINTAINERS
.A
When Signal Maintainers or Signal Maintenance Foremen are off for
periods that emceed one week in duration, they will, if relieved, be relieved
by the Relief Signal Employee; and if not available, the senior qualified
employee
of
Class 3 assigned to the Signal or Maintenance Gang.
The Carrier will make every effort to provide vacation relief on Signal
Maintainer positions when the incumbent is off duty longer than one
week."
The respective situations show that Claimants Thomas and Wymore were each
on paid vacation during the time periods as outlined in the Statement of Claim supra.
Claimants Rosebure and Pointer were each employed on their regularly bulletined
positions during the claim periods here involved. The sole basis of the claims as
presented and progressed by the Organization centers on the assertion that Carrier
somehow violated Rule 76 when it failed to assign a specific employee to relieve the
vacationing employees.
Form I Award No. 31814
Page 3 Docket No. SG-31880
96-3-94-3-207
From the Board's review of the Agreement provisions and after considering the
arguments of the parties, it is concluded that there has been no violation of any
Agreement provision by the Carrier. The language of Rule 76 is permissive in nature.
It outlines procedures which will be applicable IF the vacationing employee is relieved
and provides that Carrier will make "every effort" to provide relief. It does not
mandate that vacation absences must be filled, nor does it define to what extent Carrier
must go to make an effort to provide relief. Such rule language, absent convincing
probative evidence of misfeasance on the part of the Carrier, does not create an absolute
enforceable right.
The National Vacation Agreement, on the other hand, does establish an
enforceable right which is not present in the Organization's presentation and
progression of this case. In Articles 6 and 10(b) of that Agreement, we read:
"6. The carrier will provide vacation relief workers but the vacation
system shall not be used as a device to make unnecessary jobs for
other workers. Where a vacation relief worker is not needed in a
given instance and if failure to provide a vacation relief worker does
not burden those employees remaining on the job, or burden the
employee after his return from vacation, the carrier shall not be
required to provide such relief workers."
"l0(b). Where work of vacationing employees is distributed among two or
more employees, such employees will be paid their own respective
rates. However, not more than the equivalent of twenty-five per
cent of the work load of a given vacationing employee can be
distributed among fellow employees without the hiring of a relief
worker unless a larger distribution of the work load is agreed to by
the proper local union conunittee or official."
There is no argument by the Organization that Claimants Rosebure or Pointer
performed more than 25% of the vacationing employees' duties or were in any way
burdened by the performance of such work. In fact, the record shows that they each
worked only eight hours on each of the claim dates. Nor is there any argument that the
vacationing employees were in any way burdened upon their return to their regular
duties. The Board has consistently held that in the absence of proof of such burdening
or performance of more than 25% of the vacationing employee's duties, no additional
payment is required for either the vacationing employee or the employee who performs
some of the vacationing employee's duties.
Form 1 Award No. 31814
Page 4 Docket No. SG-31880
96-3-94-3-207
On the basis of the relative convincing force of evidence and argument as found
in this case, there is no justification for the claims as presented and they are denied.
AWARD
Claim denied.
QREB
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 26th day of December 1996.