Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32081
Docket No. CL-32071
97-3-94-3-484
The Third Division consisted of the regular members and in addition Referee
John C. Fletcher when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Houston Belt & Terminal Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Organization (GL-11086) that:
1. The Houston Belt & Terminal Railway Company violated the Rules
Agreement effective April 15, 1972, as amended, when it denied
clerical employe P. P. Shuman her seniority rights to occupy and
perform service on a holddown during the period September 9, 1993
on Job 5302.
2. The Houston Belt & Terminal Railway Company shall be required
to afford clerical employe P. P. Shuman eight (8) hours pay per day
at the rate of PICL commencing September 9, 1993 and continuing
every day that clerical employe J. K. Nutt performed service on a
holddown on Job 5302."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and 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.
Form 1 Award No. 32081
Page 2 Docket No. CL-32071
97-3-94-3-484
Parties to said dispute were given due notice of bearing thereon.
In early September 1993, a vacancy existed on Job 5302. Claimant submitted a
written request to protect the hold down, and commenced performing service on the job
on September 9, 1993. After working the vacancy for several hours, Claimant was told
that she would not be allowed to continue on the hold down beyond the end of that day's
shift, 3:00 P.M. The neat day an employee with less seniority assumed the hold down
on Position No. 5302.
Claimant is seeking eight hours pay for each day that she was denied the
opportunity to work Job 5302.
The Board has examined the extensive record made in this case, including the
partial transcript of the Investigation conducted on Carrier's September 17, 1993
charge against Claimant, that she had:
"...failed to comply with instructions ...not to perform service in the
OCC Department and that you were to remain in your assigned area of the
Freight Agency . ...[Yjou submitted a request and performed service on
OCC position No. 5103 (PICL) on September 9, 1993.
In addition, on September 9, 1993, [you were) instructed not to work
anymore OCC hold downs; ...[however[ by letter dated September 14,
1993, you submitted a written request to be utilized on any available hold
down in the OCC, contrary to ...instructions._ ."
and concludes that, notwithstanding various instructions to the contrary, Claimant,
under the explicit language of the Rules in effect on September 9, 1993, was privileged
to request to be allowed to work Job 5302. When Carrier removed her from the job,
after being properly assigned to the hold down on September 9, 1993, and thereafter
allowed a junior employee to work the remainder of the hold down, the Agreement was
violated.
The claim will be sustained. The remedy will be that requested by the
Organization.
Form 1 Award No. 32081
Page 3 Docket No. CL-32071
97-3-94-3-484
AWARD
Claim sustained.
ORDE
Thus Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 9th day
of July
1997.
CARRIER MEMBERS' DISSENT
TO AWARD 32081 (Docket CL-32071)
(Referee Fletcher)
The Majority decision flies in the face of Third Division Award 31820 which
not only involved the same issue, but also the same Claimant. We
win
have to await
the decision of the neat referee as to which of the Awards is reasoned and controlling
and which is not. We have no doubt that Award 31820 will be the only Award left
standing.
Martin W. Fingertiut
Michael C. Lesnik
Paul V. Varga