Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32167
Docket No. CL-32648
97-3-95-3-580
The Third Division consisted
of
the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Seaboard Coast
( Line Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Organization (GL-11186) that:
1. Carrier violated the Agreement on June 10, 1994, when it failed to
properly call Clerk D. E. Covington to protect vacancy on Position
4F56-213 but instead called a junior employe, M. L. Spivey.
2. Carrier shall compensate Claimant Covington, ID 153672, eight (8)
hours at the applicable overtime rate
of
Position 4F565-213."
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. 32167
Page 2 Docket No. CL-32648
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Parties to said dispute were given due notice of hearing thereon.
This dispute arose on June 10, 1994, at Carrier's Hamlet, North Carolina,
Terminal. At that time, Claimant was rested and entitled under the Agreement to be
called for a vacancy on Position 4F56-213, working 3:30 P.M. to 11:30 P.M. By
agreement, calling time for vacancies begins two hours in advance of the starting time
of the assignment. At 2:32 P.M., Carrier called Claimant and received a busy signal.
Carrier immediately re-dialed at 2:33 P.M. and again received a busy signal. The
Caller then marked Claimant out of place and, at 2:34 P.M., assigned a junior employee
to the vacancy.
On June 10, 1994, Claimant filed a claim for the eight hours at time and one-half
he would have received had he been assigned to the position, on the basis that he had not
been properly called. That claim was denied on June 20, 1994. By letter of July 19,
1994, the Organization appealed the denial citing the following reasons:
"I. Clerical employees at Hamlet are allowed a two (2) hour call.
Anything short of this is now, and has historically been considered
a short call.
2. Position 213 works from 1530 hours to 2330 hours. Calling time for
the position is 1330 hours. You acknowledge that the caller failed
and/or refused to call Claimant until over an hour after calling time
for the position, stating that "...the caller attempted to call ...once at
1432 and again at 1433."
3. No reasonable person would make a call, find the line busy, and
expect to find the line open in sixty seconds, as Carrier did. This is
certain evidence that the Carrier made no real effort to contact
Claimant.
4. The Carrier has good reason to avoid contacting Claimant for
overtime inasmuch as it reduced Claimant's guarantee by the
overtime rate of the position by claiming that Claimant has refused
overtime.
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97-3-95-3-580
5. Claimant was at home. His telephone was available for any
reasonable person to contact him, and Claimant would have worked
the position if he had been called."
That appeal was denied and the claim was subsequently progressed in the usual manner
up to and including the highest Carrier officer empowered to handle such matters.
Following conference on the property on January 18, 1995, the issue remained in
dispute.
It is the position of the Organization that Carrier failed to make a satisfactory
effort to contact Claimant for the disputed vacancy, which Carrier was obligated to offer
Claimant under Rule 18(4) of the Agreement. That Rule reads in pertinent part as
follows:
"RULE 18- USE OF UNASSIGNED OR EXTRA BOARD
EMPLOYEES
(d) When filling short vacancies occasioned by failure
of the regularly assigned relief employee to report for duty,
the following procedure will be observed, in the order shown:
1. By use of unassigned employees who have not
completed forty (40) hours in that week as provided for in
paragraphs (a) and (b) of this rule.
1. By the employee who works the job five (5) days
per week, if he desires the work.
3. By the senior qualified available regularly assigned
employee, in the immediate office, as established by
agreement between Division Chairman and appropriate
Carrier officer, who has filed a written request at least five
(5) days prior to the occurrence of the vacancy desired."
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No. 32167
Page 4 Docket
No. CL-32648
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The Organization maintains that, because a busy signal was received on the first
attempt, the Carrier did not make a bona fide attempt to contact Claimant, because no
reasonable person would make an important call, find the line busy, and then give up
after re-dialing just seconds later. Such calls, placed so close together can only be
viewed as a single call. In support of its position, the Organization cites Third Division
Award
27701,
in which the Board held:
"...It is our view that in the circumstances
of
this case, a
single phone call that cannot be completed because
of
a busy
signal is an insufficient attempt to locate a senior employee
for overtime work. In Third Division Awards
4189, 16473,
17062, 17182
and
19658
we upheld claims on the basis that
a single phone call did not constitute a reasonable effort to
contact an employee with an offer
of
work he was entitled to
accept."
The Organization further notes that the only Carrier calling Rule which deals
with a similar situation concerns calling a person with a beeper. That portion
of
the
"Calling Procedures" reads as follows:
"When calling a Beeper:
- Call the first number listed on the call sheet.
- If no answer, indicate the time on the call sheets then immediately
call the beeper number.
- Follow beeper instructions, if available, for leaving a message on
the beeper, etc.
- Indicate that you called the beeper and the time called on the call
sheet. Wait a minimum of five (5) minutes.
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- Make a second attempt to call the first number indicated on the
call sheet.
If
no answer, indicate the second time called then go to
the neat employee listed on the call sheet.
DO NOT CALL THE BEEPER A SECOND TIME"
The Organization points out that the instructions specify that the Centralized Caller
wait at least five minutes before attempting to call the first number. Only
if
s/he has
waited that interval and again received no answer should the Caller proceed to the neat
employee on the call sheet.
Finally, the Organization maintains that, because the missed call would have
provided Claimant with eight hours of work at the overtime rate, the claim for
compensation at that rate is proper.
The Carrier maintains that its attempt to call Claimant was a good faith effort.
Further, it insists that the guidelines cited by the Organization regarding Centralized
Callers are just that, and do not rise to the importance or enforceability of contract
language negotiated with the Organization. Thus, they can be altered or eliminated
without notice. Because those guidelines are silent as to the handling of busy signals, the
Carrier was under no obligation to do more than what was done in this case.
The Board concurs with the findings of Third Division Award 27701, cited above.
While we do not find that Carrier is necessarily bound by the same "guidelines" it has
applied to beepers, we do find that making two calls to a number within 60 seconds or
less, when the first call resulted in a busy signal, is not reasonable. It cannot be viewed
as a "good faith" effort to contact Claimant for work to which he was entitled.
Furthermore, because Claimant would have been paid for eight hours at the overtime
rate, the claim is sustained as presented.
AWARD
Claim sustained.
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ORDER
This 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 13th day of August 1997.